Iowa Law Review
Prepared by Students at the Iowa Law School
72 Iowa L. Rev. 943 (1987)
MODEL HUMAN REPRODUCTIVE TECHNOLOGIES AND SURROGACY ACT
Jeffrey Abbas, Linda Bendorf, Elizabeth Gomez, Lon Moeller, Wendy Smith,
Jeffrey Aldag, Scott Fisher, Jeanne M. Higuera, Linda Mullen, Gregory Steele,
Rachelle Ziemba, Thomas Barnhart, Randal Giannetto, Michael Kuehn, Marie
Simpson, Mary Wyckoff
Copyright 1987 by the University of Iowa (Iowa Law Review)
The Model Human Reproductive Technologies and Surrogacy Act is the product of a seminar offered during the 1986-87 academic year at the University of Iowa College of Law, entitled 'The Status of Children of the New Biology Drafting Seminar.' This brief foreword provides background information on the seminar and the Model Act that resulted from it. The Act, published in full with comments, follows.
The seminar was an unusual educational experience for students. The concept of the seminar emerged from our experience with drafting committees and our belief that this experience could be replicated in the law school to the students' educational enrichment. Its success required that each student be actively involved in research supporting the proposed statute, that each student bear principal responsibility for drafting portions of the statute, and that the processes of policy formulation, discussion, review, and editing be widely shared among the class.
The subject matter of the seminar was well suited to the type of research and drafting experience we intended to achieve. As originally defined, the seminar focused on the status of children born through recent, largely technological means of reproduction, including artificial insemination, in vitro fertilization, and surrogacy--three separate but overlapping areas of reproductive technology.
These three general areas of concern spawned a range of issues broad enough to occupy a year-long seminar with sixteen students. The general areas spanned the fields of law, economics, religion, ethics, psychology, medicine, genetics, political science, philosophy, and others. Of the sixteen law students who enrolled in the seminar, we were fortunate to have students with a broad array of undergraduate and graduate training, as well as work experience. Among the students in the seminar were persons with experience or training in psychology, nursing, medicine, genetics, social work, ethics, economics, political science, and, not the least important, parenting.
The seminar met twice in the early fall of 1986 to set the ground rules, to obtain basic information about the reproductive procedures, and to set the agenda for early research. The ground rules were fairly straightforward: each student would be assigned an initial area of research responsibility and the students would thereafter set the scope of the undertaking, identify and decide upon all policy decisions, prepare a first draft of the statute, and serve as reporters as the statute was refined. Doctor Susan Johnson from the University of Iowa medical faculty provided the students with basic information in the medical and technological aspects of conception, fetal development, and genetics, as well as in the present and conceivable future procedures for assisted reproduction.
After the initial meeting, each student was assigned an area on which to prepare a substantial research memorandum. In late fall, after the memoranda were completed, the seminar met to decide the basic policy issues that would structure the statute and to hammer out its scope. This effort took five meetings, ranging in length from five hours to all day, and was completed by the end of the first semester. All this time, each student had been assigned an additional research paper and the responsibility for drafting a portion of the Act.
The students completed this work by the beginning of the second semester, after which the seminar settled into a routine of meeting roughly once each week. Initially, the students reviewed, reshaped, and coordinated the sixteen different, but interrelated, sections of the Act they had prepared over the holidays. Once they developed a basic set of provisions resembling a statute, the students undertook a section-by-section review to confirm, revise, or reverse basic policy judgments, to coordinate further the operation of the statute, to identify terms needing definition, and to begin drafting explanatory comments. Finally, line-by-line readings were undertaken to develop a first draft for public hearings.
By early March, the students completed a draft of the Act that could be distributed for comment. At this point, a process of external review and testing began. Copies of the draft were sent for comment to a wide array of potentially interested parties, including physicians, nurses, psychologists, social workers, judges, social service agencies, parenting support groups, hospitals, attorneys, clergy, right-to-life organizations, feminist organizations, and others. The seminar also met with a surrogate to hear her experiences and point of view concerning the Act's surrogacy provisions. Finally, the students held a formal public hearing, inviting fourteen persons to testify on the Act.
Following this external review process, the seminar met regularly to finalize policy and language revisions and to complete and review the comments to the Act. These repeated line-by-line, painstaking reviews produced a first final draft in early April. After yet another review, the iterative process was complete, and the students submitted the Model Act to the Iowa Law Review for publication.
The Act itself regulates insemination, in vitro fertilization, and surrogacy arrangements. Articles 4 and 5 govern insemination and in vitro fertilization respectively. Both articles permit use of these reproductive technologies only if certain safeguards, designed to promote the best interests of the child, are met.
Surrogacy arrangements are regulated primarily by Article 6. The surrogacy provisions were perhaps the most difficult to formulate and will likely be controversial. The Act allows surrogacy only according to strict eligibility and procedural requirements. To be eligible for a surrogacy, the couple intending to parent the resulting child must be married, the intended mother must be unable to bear children safely, and one of the couple must provide a gamete for the resulting child. Further, no woman can be a surrogate unless she has had at least one uncomplicated pregnancy.
The procedural safeguards are equally stern. For example, all parties to the surrogacy must successfully complete counseling and medical and nonmedical evaluation. The parties must jointly petition a court to finally determine the validity of the surrogacy contract, according to enumerated requirements, before performance. The surrogacy may not be performed without a written indication by all parties of their informed consent. Finally, for reasons explained in the comments to Article 6, the Act requires that a surrogate be allowed up to seventy-two hours after the child's birth to decide to keep the resulting child. If this option is not exercised, the intended parents become the legal parents of the resulting child. Breach of contract or noncompliance with the Act does not affect this right-of-parentage scheme.
The other sections of act Act govern related aspects of surrogacy and reproductive technologies. Article 2 sets out the general rules of parentage, while Article 3 concerns obligations to, and rights of, the child. Article 7 governs evaluation and counseling, and Article 8 gives general immunity and liability standards. Finally, Article 9 details general regulatory requirements, such as record keeping and confidentiality, and puts forth a set of unique provisions regulating gametes and preembryos.
Throughout the year, the students benefited both in enthusiasm and understanding from the substantial amount of research that is being published on the subject of reproductive technologies and from the public interest generated by the Baby M case and the 1987 Vatican statement. In some measure, the burdens surrounding reproductive technologies are the product of the current legal system's failure to adjust the parenting notions of a simpler day to the technological innovations of the present. It was all too obvious to the students, as it must be to the public in light of Baby M, that children most often bear the principal burdens, many of which are not fully understood.
Whatever one may conclude about the result reached in Baby M or in any other case, it seems clear that the legal system must face up to the facts of today's reproductive technologies and begin to think now about tomorrow's technologies. It seems even clearer that the inevitable involvement of the legal system will be better shaped by thoughtful legislative action than by the single-handed response of a judge, who must necessarily create law in the course of choosing among often unsatisfactory alternatives. Finally, it seems evident that a set of rules to settle legal relationships will almost always be superior to bitter, prolonged, public, and self-destructive custody disputes fought out in the nation's courts.
Avoiding such results, achieving thoughtful and informed solutions, and providing for safe and effective regulation of the new reproductive technologies were the students' chief objectives. The Model Act is a product of their collective judgment, an informed judgment by a group of students who reflected a wide range of values, experiences, backgrounds, and beliefs.
At the beginning of the year, we were uncertain whether the enterprise we had launched would flourish or founder. Only in weak moments did we ever consider the possibility of a statutory product that would be of sufficient scope and quality to be published as a serious proposal for legislative enactment. We take great pride, therefore, in the students who produced this Model Human Reproductive Technologies and Surrogacy Act.
Randall P. Bezanson
Sheldon F. Kurtz
TABLE OF CONTENTS
Statement of Purpose ...................................................... 950
ARTICLE I GENERAL PROVISIONS
'1-101 Short Title ....................................................... 951
'1-102 Definitions ....................................................... 951
Comment ................................................................... 952
ARTICLE 2 RULES OF PARENTAGE
'2-101 Mother-Child Relationship ......................................... 955
Comment ................................................................... 955
'2-102 Father-Child Relationship ......................................... 955
Comment ................................................................... 957
'2-103 Termination and Transfer of Parental Rights to Intended Parents ... 958
Comment ................................................................... 958
'2-104 Effect of Noncompliance ........................................... 959
Comment ................................................................... 959
ARTICLE 3 OBLIGATIONS TO AND RIGHTS OF THE CHILD
'3-101 Health Care Decisions Concerning the Fetus ........................ 960
Comment ................................................................... 960
'3-102 Legitimacy ........................................................ 962
Comment ................................................................... 962
'3-103 Parents' Duty to Support .......................................... 963
Comment ................................................................... 963
'3-104 Duty of Others for Support ........................................ 963
Comment ................................................................... 963
'3-105 Intestate and Testate Succession .................................. 964
Comment ................................................................... 965
ARTICLE 4 INSEMINATION
'4-101 Eligibility ....................................................... 967
Comment ................................................................... 968
ARTICLE 5 IN VITRO FERTILIZATION
'5-101 Eligibility ....................................................... 970
Comment ................................................................... 971
ARTICLE 6 SURROGACY
'6-101 Regulatory Procedures ............................................. 973
Comment ................................................................... 973
'6-102 Eligibility ....................................................... 975
Comment ................................................................... 975
'6-103 Judicial Preauthorization ......................................... 976
Comment ................................................................... 978
'6-104 Mandatory Terms of Surrogate Contract ............................. 980
Comment ................................................................... 981
'6-105 No Specific Performance Rule ...................................... 985
Comment ................................................................... 985
'6-106 Damages ........................................................... 986
Comment ................................................................... 987
ARTICLE 7 EVALUATION
'7-101 Nonmedical Evaluation ............................................. 990
Comment ................................................................... 990
'7-102 Medical Evaluation ................................................ 991
Comment ................................................................... 992
'7-103 Counseling ........................................................ 993
Comment ................................................................... 994
ARTICLE 8 LIABILITIES AND IMMUNITIES FOR PARTICIPANTS OF INSEMINATION, IN VITRO
FERTILIZATION, AND SURROGACY
'8-101 Immunities ........................................................ 997
'8-102 Liabilities ....................................................... 997
Comment ................................................................... 997
ARTICLE 9 REGULATORY PROVISIONS
'9-101 Licensure and Regulation of Collection and Storage of Human
Gametes and/or Preembryos ............................................... 999
Comment ................................................................... 999
'9-102 Record Keeping ................................................... 1000
Comment .................................................................. 1001
'9-103 Restrictions on Use of Preembryos ................................ 1001
Comment .................................................................. 1001
'9-104 Rights in Gametes and Preembryos ................................. 1002
Comment .................................................................. 1002
'9-105 Transferability of Gametes and Preembryos ........................ 1002
Comment .................................................................. 1002
'9-106 Rights in Transferred Gametes and Preembryos ..................... 1003
Comment .................................................................. 1004
'9-107 Transfer of Rights with Respect to Gametes and Preembryos ........ 1006
Comment .................................................................. 1006
'9-108 Disposition of Gametes and Preembryos upon the Death or
Dissolution of the Person in Possession ................................ 1007
Comment .................................................................. 1007
'9-109 Status as Lives in Being: The Rule Against Perpetuities .......... 1008
Comment .................................................................. 1008
'9-201 Maintenance and Confidentiality of Records ....................... 1009
Comment .................................................................. 1011
Statement of Purpose
The purpose of this [Act] is threefold: (1) to determine the legal status of children born as a result of artificial insemination, in vitro fertilization, and surrogacy; (2) to provide for the safe regulation of and access to these reproductive technologies and surrogacy; and (3) to establish necessary standards and procedural safeguards to ensure that these technologies are utilized in the best interest of the resulting children.
While the [Act] makes insemination by donor and in vitro fertilization easily accessible, it requires all donors and recipients to be medically evaluated before engaging in these procedures, to ensure healthy parents and a healthy resulting child.
There exist strong, intelligent arguments both for and against surrogacy. Yet, the fact remains that hundreds of couples contracted with surrogates last year. Although surrogacy presents unique ethical, legal, and emotional dilemmas, to ignore or ban surrogacy will inevitably lead to unregulated arrangements. Thus, the [Act] does not prohibit surrogacy but fully and carefully regulates surrogacy arrangements to protect the interests of all parties involved. More specifically, the [Act] ensures that surrogacy arrangements are only utilized by married couples and only when necessary; that all parties to a surrogacy contract are physically, emotionally, and mentally qualified to fulfill the obligations of parenthood and their respective responsibilities under the surrogacy contract; that the surrogate is adequately protected and informed so that she is able to give informed consent to the arrangement; that the resulting child's status is legally certain in order that the child not be the chief remedial focus of litigation; and that adequate support be assured for the resulting child.
Finally, the [Act] ensures the safe and professional operation of human gamete and/or preembryo collection and storage facilities.
'1-101 SHORT TITLE
This [Act] may be cited as the Human Reproductive Technologies and Surrogacy Act.
The following words and phrases, whenever used in this [Act], shall have the following meanings, unless the context otherwise requires:
(1) 'Birth Mother' means a woman who gestates an embryo conceived by insemination, in vitro fertilization, or as a result of a surrogacy arrangement.
(2) 'Donor' means an individual who contributes his or her gametes for the purpose of insemination, in vitro fertilization, or implantation in another, or a woman who contributes a preembryo.
(3) 'Gamete' means the ovum (egg) and the spermatozoa (sperm).
(4) 'Health Care Provider' means a person who is licensed, certified, or otherwise authorized by the law of [this State] to administer health care in the ordinary course of business or practice of a profession.
(5) 'Informed Consent' occurs when a person, while exercising care for his or her own welfare, makes a decision about whether or not to participate in a proposed medical procedure or contractual arrangement that is based on a full awareness of the relevant facts. The relevant facts include: (a) the medical and psychological risks; (b) the legal, financial, and contractual rights and obligations; and (c) the available alternatives, including the alternative of not participating in any procedure or arrangement and each alternative's attendant risks and obligations.
(6) 'Insemination' means introduction of semen into a woman's vagina, cervical canal, or uterus through noncoital means.
(7) 'Intended Parents,' including 'Intended Father' and 'Intended Mother,' means persons who are married to each other and who, complying with the requirements of this [Act], enter into a surrogacy contract with a surrogate by which they are to become the parents of the resulting child.
(8) 'In Vitro Fertilization' means all medical and laboratory procedures that are necessary to effectuate:
(a) the extracorporeal combining of gametes to allow fertilization to occur; or
(b) the transfer of a preembryo into the uterine cavity.
(9) 'Licensed Person' means a person licensed or authorized by the [State Department of Health] pursuant to Section 9-101 of this [Act] to engage in the collection, storage, or use of gametes and preembryos.
[(10) 'Partner' means an individual specified by an insemination recipient or a preembryo transfer recipient to share equally the rights and responsibilities of parenthood for any resulting child.]
(11) 'Person' means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.
(12) 'Preembryo' means the cell mass that results from fertilization of an ovum prior to implanation.
(13) 'Surrogacy' or 'Surrogacy Arrangement' means any arrangement by which a woman agrees to be impregnated by noncoital means, using either the intended father's sperm or the intended mother's egg, or both, with the intent that the intended parents are to become the parents of the resulting child after the child's birth.
(14) 'Surrogate Contract' means an agreement that complies with the requirements of Article 6 of this [Act] providing for a surrogacy arrangement.
(15) 'Surrogate' means a woman who agrees, pursuant to a surrogacy contract, to bear a child for intended parents.
Comment to Section 1-102
Under Section 1-102(2), only the woman, and not the man, who contributes a preembryo is a donor of the preembryo. Thus, where a preembryo is removed from a woman's body by embryo lavage, the man who provided the sperm used to create the preembryo is not a donor of the preembryo under the [Act]. Pursuant to Section 9-104, the man who provides the sperm used to create the preembryo has only those rights in the preembryo acquired under Section 9-107(c).
Section 1-102(5) defines the concept of informed consent. The [Act] employs the term 'informed consent' in a number of settings. The term is specifically defined in order to make explicit the range of settings and information embraced within its scope when applied to the reproductive arrangements covered by the [Act]. At base, the concept of informed consent requires that an individual be allowed to choose his or her own course. Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).
The definition of informed consent is central to many provisions of the [Act] and concerns the need for persons who make decisions to have information pertaining to medical, legal, financial, and emotional risks and choices. These individuals need information about their condition, the proposed medical treatment, and the risks, rights, and obligations involved in alternative courses of treatment.
The definition of informed consent departs from the common-law definition in two ways. First, the common-law doctrine of informed consent is based on the physical well-being of the individual. Although physicians must disclose risks that are significant to the patient's decision, a physician is not liable at common law for failing to disclose a significant risk that does not materialize. Scott v. Bradford, 606 P.2d 554, 559 (Okla. 1979). The [Act], in contrast, deals with reproductive technologies where decisions to participate are highly personal and not based on physical well-being alone. Thus, under Section 1-102(5), failure to disclose risks encompassed within the meaning of informed consent may result in liability under Article 8. The focus is not limited to whether the risk that should have been disclosed materialized, but on whether it was disclosed at all. Without informed consent, individuals might participate in a procedure whose consequences they are unwilling to bear, and therefore impose costs on others.
The [Act's] second departure from the common law of informed consent is that its definition does not use the reasonable person standard. Under the common law, the courts are reluctant to delve into an individual's mind to determine whether he or she gave informed consent. The common-law principle of informed consent therefore requires a physician to disclose all material facts that would be significant to a reasonable person in making the same decision as the patient. Cowman v. Hornaday, 329 N.W.2d 422, 425 (Iowa 1983). Section 1- 102(5), however, does not require that the decisions by an individual be ones that most people would consider reasonable. This is because the reproductive technologies involved require highly personal decisions that are not based solely on physical well-being. Cf. Schultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 264 (1985). For example, a woman can abort a fetus for medically necessary reasons, or she can decide, on personal grounds, to risk her life and carry the fetus to term. Either decision is a result of informed consent if the woman is fully aware of the consequences of her decision.
The judicial preauthorization procedure of surrogacy provided for in Section 6-103 requires the judge to find informed consent by all parties to a surrogacy contract. Since a surrogacy arrangement brings in a third party, the surrogate, a whole new set of emotional risks and legal and financial rights and obligations are created. In addition to the usual medical, financial, and legal risks attendant to insemination and in vitro fertilization, the surrogate has her own motives and concerns, which may conflict with those of the intended parents. For instance, unbeknownst to the intended parents, the surrogate may plan to keep the child the intended parents want. The potential conflict of motives and concerns creates additional problems about which the parties to the surrogacy contract must be fully aware. The judicial preauthorization procedure acts as an additional safeguard against any failure to obtain informed consent to the complicated surrogacy arrangement.
The definition of in vitro fertilization in Section 1-102(8) includes either of two distinct procedures: fertilization in the strict sense of extracorporeal fertilization and the transfer of a preembryo into the uterus. Thus, the definition is intended to be broad enough to include such procedures as embryo lavage or other similar reproductive technologies developed in the future.
Section 1-102(8) is also meant to include the procedures necessary for in vitro fertilization. In embryo lavage, for example, the procedures used to obtain a preembryo are covered by this definition as well as the subsequent transfer of the preembryo into the uterus.
The bracketed definition of partner in Section 1-102(10) corresponds with the bracketed language in Sections 4-101(c) and 5-101(c).
The definition of surrogacy in Section 1-102(13) covers only arrangements where a woman agrees to be impregnated by noncoital means, using either the intended father's sperm, or the intended mother's egg, or both. Surrogacy is defined to exclude arrangements using neither of the intended parents' gametes. Because of the substantial medical and emotional risks to all parties involved in a surrogacy arrangement, the use of surrogacy should generally be discouraged. When would-be parents desire to raise a child, but both are either unable to provide a viable gamete or are indifferent to the biological relation of the child to be raised, then this desire should be fulfilled using adoption procedures. That is, the definition of surrogacy is limited so that intended parents must not only want a child, they also must desire and at least one of them must be able to produce a biologically related child. Without this limitation, surrogacy might well replace adoption.
RULES OF PARENTAGE
'2-101 MOTHER-CHILD RELATIONSHIP
Except as otherwise provided in this [Act], a woman is the mother of a child to whom she has given birth.
Comment to Section 2-101
The mother-child relationship is established under Section 2-101 by proof that the mother has given birth to the child. Thus, this section is consistent with the current legal presumption that assigns parentage to the birth mother. See Broun, The Unfillable Promise of One Rule for All Presumptions, 62 N.C.L. REV. 697, 700-02 (1984) (explaining presumption that parents are woman who gives birth and her husband); see also BLACK'S LAW DICTIONARY 913 (5th ed. 1979) (defining mother as woman who bears child). Moreover, this relationship is conclusively determined at the point of birth regardless of whether the child was conceived through sexual intercourse, insemination, or in vitro fertilization.
Section 2-101 recognizes that the birth mother usually intends to form a parental relationship with her child. For this reason, Section 2-101 provides that, absent compliance with Article 6 by the parties to a surrogacy contract, the woman who gives birth to the child will be the child's mother. In the case of a surrogacy contract under Article 6, parenthood remains in the surrogate if she elects to keep the child within seventy-two hours of the child's birth, but is automatically transferred to the intended parents if the surrogate makes no such election. These rules are also reflected in Section 2-103. In the case of a surrogacy arrangement that fails to comply with Article 6 of this [Act], parentage is determined only under the provisions of Section 2-101 and Section 2-102. See also ' 2-104.
This [Act] does not supersede existing state law by which the child might be adjudicated a ward of the state because all persons to whom parenthood is assigned under this [Act] abandon their parental responsibilities for the child.
'2-102 FATHER-CHILD RELATIONSHIP
(a) A man is presumed to be the father of a child if:
(1) he and the child's mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated for any reason, or after a decree of separation is entered by a court;
(2) before the child's birth, he and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared void, voidable, or otherwise invalid; and
(i) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination for any reason; or
(ii) if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;
(3) after the child's birth, he and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared void, voidable, or otherwise invalid; and
(i) he has acknowledged his paternity of the child in a writing filed with the [appropriate court or Vital Statistics Bureau];
(ii) with his consent, he is named as the child's father on the child's birth certificate; or
(iii) he is obligated to support the child under a written voluntary promise or by court order;
(4) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his child; or
(5) as an unmarried donor of sperm for use in insemination or in vitro fertilization, he and an unmarried woman, who under Section 2-101 would be the mother of the child, follow the procedures in Article 4 or Article 5 and agree in writing in advance of the procedure that the donor shall be the father.
(b) A presumption under subsection (a) may be rebutted in an appropriate action only by clear and convincing evidence. The existence of the father and child relationship presumed under paragraphs (1), (2), or (3) of subsection (a) is not, however, rebutted by evidence that the child was conceived by means of insemination or in vitro fertilization so long as the presumptive father complies with the requirements of Section 4-101(c) or Section 5-101(c) of this [Act]. In the absence of such compliance, the presumptive father's consent will be conclusively presumed by his failure to object to paternity [by filing an action to dispute paternity] within 30 days after he knew or should have known of the child's birth. If two or more presumptions of paternity arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.
Comment to Section 2-102
Section 2-102 describes the circumstances in which the presumption of paternity will arise under this [Act]. Paragraphs (1) through (4) of subsection (a) are fashioned after Section 4 of the UNIFORM PARENTAGE ACT, 9A U.L.A. 587 (1979). By contrast, paragraph (5) allows an unmarried woman, who would become the birth mother, and a semen donor to enter into a binding written agreement declaring that the semen donor is the resulting child's father, provided that both parties follow the procedures mandated in Article 4 or Article 5 and agree to the paternity in writing prior to the insemination or in vitro fertilization procedure. Section 2-102(a)(5) is applicable only when the donor is known and wishes to continue a parental relationship with his child. Evidence of this intent and the mother's acquiescence will be found in the written agreement required by paragraph (5). The rationale underlying Section 2-102(a)(5) is that it is not in the best interest of the child to exclude the donor if he desires the rights and responsibilities created by the paternal parent-child relationship. Additionally, the state welfare system benefits in having two child support obligors.
Section 2-102(a)(5) cannot apply to surrogacy arrangements because surrogacy is outlined in Article 6 and Section 2-102(a)(5) is limited to the procedures outlined in Articles 4 and 5.
Subsection (b) states that a presumption of paternity under subsection (a) is rebuttable only by 'clear and convincing evidence.' If a man is presumed to be the father of a child pursuant to paragraphs (1), (2), or (3) of subsection (a), evidence that the child was conceived as a result of insemination or in vitro fertilization will not rebut the presumption, provided that the presumptive father consented to such procedure in the manner provided for in Section 4-101(c) or Section 5-101(c). For example, if a husband agrees to the insemination of his wife, he is conclusively presumed to be the resulting child's father under this section. Conversely, when a woman becomes pregnant by means of insemination or in vitro fertilization without the consent of her husband, Section 2-102 affords the presumptive father a qualified right to rebut the parent-child relationship so established, on the basis of his noncompliance with the appropriate provision of this [Act]. If the presumptive father does not dispute paternity within thirty days after he knew or should have known of the child's birth, he will be conclusively presumed to be the child's father. To avoid uncertainty, the [Act] specifies that such an objection is shown by filing an action disputing paternity. A state may wish to refer to some other procedure for disputing paternity or to refer to an appropriate section of its laws.
If competing claims of paternity arise under Section 2-102, the [court] is further directed to ascertain paternity on the basis of 'the weightier considerations of policy and logic,' a discretionary standard that should be read in light of the intent of the parties who resort to the procedures governed by this [Act].
'2-103 TERMINATION AND TRANSFER OF PARENTAL RIGHTS TO INTENDED PARENTS
Parental rights established under this article shall be terminated and transferred to the intended parents or to the surrogate and her husband, if any, only pursuant to Article 6 of this [Act].
Comment to Section 2-103
This section provides that parental rights established by Section 2-101 and Section 2-102 are relinquished by the surrogate and her husband, if she is married, and transferred to the intended parents, as provided in Section 6- 103(d)(4), if there is a surrogacy contract complying with the provisions of Article 6 of this [Act]. If parenthood is so transferred to the intended parents, they alone, and for all purposes, are the child's legal parents. The assignment of maternity will remain with the surrogate, however, if, pursuant to Section 6-104(a), she elects within seventy-two hours of the child's birth to keep the child. If such an election is made, any paternity will be determined under Section 2-102. By conditioning the parental rights of the intended parents in this manner, this section accounts for the interests of the surrogate who may or may not want to assume the responsibilities of parentage.
The variety of genetic relationships that may exist in a surrogacy arrangement necessitate inclusion of the surrogate and her husband, if any, in this provision. Inclusion is also necessary because either the intended father or the intended mother or both will be the biological parent, thus requiring, in the case where the surrogate elects to keep the child, transfer of parentage to the surrogate's husband or the surrogate, respectively, under the laws of many states. Cf. Donovan, The Uniform Parentage Act and Nonmarital Motherhood-by-Choice, 11 N.Y.U. REV. L. & SOC. CHANGE 193, 209-10 (1983) (discussing problem of biological father who changes mind about his role as parent).
'2-104 EFFECT OF NONCOMPLIANCE
Noncompliance with the requirements of this [Act] shall not affect the determination of parenthood under Article 2, nor shall breach of a judicially preauthorized surrogacy contract affect transfer of parentage under Section 6- 103(d)(4).
Comment to Section 2-104
Section 2-104 ensures that, should the requirements of insemination or in vitro fertilization not be followed, or in the event of a breach of a preauthorized surrogacy contract, all questions pertaining to the parentchild relationship are determined in accordance with the provisions of Article 2. In other words, the child's status will not become part of a remedy for noncompliance or breach.
For example, if intended parents and a surrogate enter into a contract pursuant to Article 6 that proscribes surrogate drug ingestion, and if the surrogate breaches by ingesting drugs eesulting in a deformed child that is unwanted by all of the parties, Sections 2-103 and 2-104 provide that the intended parents receive all rights and incur all obligations, including child support, as parents of the resulting child. The intended parents, although now legally the parents of the resulting child, may in turn bring a breach of contract action against the surrogate for appropriate damages pursuant to Section 8-102(b). Thus, Section 2-104 serves the interests of the resulting child by assuring that, although litigation over monetary liability may occur, the parental rights and responsibilities are firmly established.
OBLIGATIONS TO AND RIGHTS OF THE CHILD
'3-101 HEALTH CARE DECISIONS CONCERNING THE FETUS
(a) All decisions regarding the health of the birth mother and the fetus are to be made by the birth mother.
(b) In the case of surrogacy, after birth and prior to:
(1) the expiration of the 72-hour period specified in Section 6-103(d)(4), or
(2) a surrogate's election to keep the child,
health care decisions regarding the resulting child shall be made by the birth mother, or, in the event of her disability, by the intended parents, unless the surrogacy contract otherwise provides.
Comment to Section 3-101
Section 3-101(a) confers upon the birth mother the right to make health care decisions for herself and her fetus. The birth mother should have responsibility for health care decisions because any action taken concerning the fetus' health also affects the birth mother's health and because her privacy interests are paramount. See Roe v. Wade, 410 U.S. 113, 152-54, 164 (1973). During most of the pregnancy, her interests outweigh those of the state. Id. at 163. Her privacy interests always outweigh those of her parents, see Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976), and her spouse, see id. at 71.
In all areas but surrogacy, this rule is generally accepted. Compare Danforth, 428 U.S. at 74 (noting privacy interests of pregnant woman) with Coleman, Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 85-86 (1982) (arguing that people who hire surrogates should be able to enforce contract requiring regular medical checkup). Although, in the surrogacy context, the birth mother's interest is slightly weaker, that interest still requires that she be given control over herself and the fetus. Because the surrogate will surrender the child to the intended parents, she has fewer long-term interests at stake. For example, child care expenses and life-style changes will fall primarily on the intended parents. Therefore, the surrogate's privacy interests are weakened slightly in relation to those of the intended parents, suggesting that some participation by the latter parties in health care decisions is justifiable. Notwithstanding this fact, there are a number of reasons why the intended parents' interest must be subordinate to the surrogate's interest.
First, the possibility that the surrogate may end up keeping the child under Section 6-104(d), somewhat strengthens the surrogate's interest.
Second, even if the possibility of keeping the child was not available to the surrogate, the surrogate's privacy rights are strong enough to allow her the sole right to make health care decisions during the pregnancy. The birth mother still has an interest in her personal health, the fetus' health, and her life style during the pregnancy. The strength of these interests requires that the birth mother keep her right to make all the health decisions.
Third, surrogacy is analogous to adoption situations, in which the mother retains her privacy interests. A pregnant woman can avoid parenthood by surrendering the child for adoption, but this possibility does not eliminate her privacy interests during pregnancy. See Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (noting privacy interests of pregnant woman). The fact that a surrogate intends to surrender the child should not militate against her privacy rights any more than these situations. Because the typical mother has not lost her privacy rights, neither should a surrogate.
Finally, the case for allowing the intended parents to make the health care decisions during the pregnancy is even weaker than is the case for the biological mother's parents or spouse. Cf. Danforth, 428 U.S. at 71-75 (interests of parents and spouse subordinate to mother). When parents or a spouse are involved, there is at least an assumption that they have the woman's interests in mind. No such assumption should be made on behalf of the intended parents. Their primary interest is in the child, and they can be expected to put that interest above the interests of the surrogate. Because of this potential conflict, the surrogate should be able to prevent the intended parents from putting pressure on her to make a decision risky to herself but beneficial to the fetus.
Section 3-101(a) only applies to health care decisions made during the pregnancy. Except for surrogacy, all health care decisions affecting the resulting child and made after the child's birth are made by the child's parents as determined under the provisions of Articles 2 and 6 of this [Act]. In a surrogacy arrangement, postnatal health care decisions are governed by Subsection (b).
Section 3-101(b) applies in the surrogacy situation only. This section determines who shall care for the child in the seventy-two-hour time period after the child's birth and clarifies decision-making authority if the surrogate is unable to make such decisions. If she is able, the surrogate should make all health care decisions for the child during this time period. The main reason for allowing the surrogate to make health care decisions is to protect the child. During this period, it is reasonable to conclude that the surrogate will have the interests of the child at heart. The surrogate can still decide to keep the child and, therefore, will have a strong interest in ensuring that the child is given the proper medical attention. If, after the child's birth and prior to the running of the full seventy-two-hour period, the surrogate gives notice to keep the child, then this section applies only for the period of time between the child's birth and the giving of such notice. Thereafter, the surrogate (or her husband or guardian) makes all health care decisions affecting the child, pursuant to Articles 2 and 6 of this [Act]. If the surrogate does not give notice within the seventy-two-hour postnatal period, she retains decision-making authority up to the seventy- second-hour. After this period decision-making authority transfers to the intended parents pursuant to Articles 2 and 6 of this [Act]. Nothing in this section precludes the surrogate from consulting with the intended parents.
The surrogate will generally be available to make these health care decisions. This availability is of the utmost importance when decisions have to be made quickly, as is typically the case in neonatal emergencies. The surrogate may not, however, always be able to make decisions for the child, due to complications arising from the birth. Were this to occur under normal circumstances, the husband or the guardian of the worman--or the guardian of the child--would make the necessary decisions. In the surrogacy context, this approach is unsatisfactory. Because at least one of the intended parents of the child must also be the child's genetic parent, the intended parents have a more direct interest in the child's health and welfare than does the surrogate's husband or guardian. Because of this genetic link and because of the assumption that the intended parents will be the child's parents at the end of the seventy-two-hour period, the intended parents will be more likely to act in the child's best interests than would the surrogate's husband or guardian.
While this section clarifies who should make health care decisions, the rules in this section are not the only possible solution to this problem. Therefore, if the parties to a surrogacy contract agree on a differenent method of making these postnatal health care decisions, their procedure will be followed provided that the agreement is a part of the surrogacy contract and is otherwise enforceable under the circumstances.
If, under the provisions of this [Act], a parent-child relationship is created between two persons, the child shall be considered for all purposes of law the legitimate child of the parent.
Comment to Section 3-102
This section is intended to make it clear that a child born through the utilization of the procedures provided for in Articles 4, 5, and 6 of this [Act] is the legitimate child of the person or persons to whom parenthood is assigned under the provisions of this [Act]. The policy behind this section is that the benefits of legitimacy should be accorded to the child who is born through the utilization of the procedures provided for in Articles 4, 5, and 6 of this [Act].
'3-103 PARENTS' DUTY TO SUPPORT
Any person who is determined to be the parent of a child under the provisions of Article 2 of this [Act] shall support the child.
Comment to Section 3-103
This section makes no substantive changes to existing support laws. Rather, it merely incorporates existing support laws into this [Act].
'3-104 DUTY OF OTHERS FOR SUPPORT
(a) If the parties who are involved in an insemination, in vitro fertilization, or surrogacy arrangement do not substantially comply with the applicable provisions of Article 4, Article 5, or Article 6 of this [Act], then, in addition to the support obligations determined under Section 3-103, the court may impose a support obligation on:
(1) the sperm donor in the case of insemination;
(2) the gamete donors in the case of in vitro fertilization; or
(3) the intended parents or surrogate in a surrogacy arrangement.
In imposing this support obligation, the court may consider the seriousness of and the reasons for noncompliance in order to determine which of the parties, if any, should be liable for support.
(b) If any person willfully fails to comply with the provisions of this [Act], as determined under Section 8-102(a), and the effect thereof is the authorization of a procedure in violation of this [Act], that person may be liable for support of the resulting child.
Comment to Section 3-104
Traditionally, only a child's parents are liable for the child's support. This section extends the obligations to support a child born as the result of insemination, in vitro fertilization, or surrogacy to persons who would not be liable for child support under current law. Section 3-104 has two essential purposes. One is to ensure that the economic maintenance of the child will be taken care of with a minimum burden on the state welfare system. The other is to encourage compliance with the provisions of the [Act].
Section 3-104(a) authorizes a court to impose an obligation of support upon donors or intended parents who do not substantially comply with the provisions of this [Act]. In determining whether a support obligation should be imposed upon such persons and in what amount, the court may consider the seriousness of and the reasons for noncompliance.
Under Section 3-104(b), if a person willfully fails to comply with the provisions of the [Act] and as a result of such action a reproductive procedure is performed that violates the [Act], that person may be held liable for the support of the resulting child. This provision applies to doctors, lawyers, evaluators, suppliers, and others who actively participate in the procedures regulated by the [Act]. The determination of willfulness should correspond with that provided for in Section 8-102(a).
Section 3-104 is designed to ensure use of, and compliance with, the [Act], and to ensure that the resulting child and the state will not financially suffer when there is a substantial or willful noncompliance with the provisions of this [Act]. By holding persons potentially liable for violating the [Act's] provisions, this section creates a penalty that should deter improper use of insemination, in vitro fertilization, and surrogacy procedures. Section 3-104 gives the child more support obligors and, therefore, increases the likelihood of adequate support. Additionally, the state will not be left with the burden of supporting a child born through procedures prohibited by this [Act].
'3-105 INTESTATE AND TESTATE SUCCESSION
(a) Subject to the provisions of Section 3-105(b), a child shall be considered a child only of his or her parent or parents as determined under Article 2 of this [Act], and vice versa, for purposes of
(1) intestate succession;
(2) taking against the will of any person;
(3) taking under the will of any person, unless such will otherwise provides; and,
(4) being entitled to any support or similar allowance during the administration of a parent's estate.
(b) For purposes of Section 3-105(a), a child born of a surrogate is:
(1) the child of the intended parents from the moment of the child's birth unless within 72 hours of the birth of such child the surrogate gives notice of her intent to keep the child pursuant to Section 6-104(d) of this [Act]; or
(2) the child of the surrogate and her husband, if any, or if none, the person presumed to be the father under Section 2-102(a)(4), from the moment of the child's birth if the surrogate gives notice of her intent to keep the child pursuant to Section 6-104(d) of the [Act].
Comment to Section 3-105
In general, Section 3-105(a) uses the parent-child relationship, as determined by Article 2, to determine the reciprocal rights of a child born pursuant to one of the procedures provided for under this [Act] and of the child's parentsd to inherit property, either under the will of any person, whether or not the child's parent, unless the will provides otherwise, or by intestate succession. Once the parent-child relationship is determined, governing state laws relating to intestate and testate succession apply. For example, if child A is born to woman B as the result of insemination, A is the child of B and any person determined to be A's father under Section 2-102. If B died intestate, A would inherit from B.
Section 3-105(b) addresses inheritance relationships in the case of surrogacy. Under this section, a child born to the surrogate is the child of the intended parents for purposes of testate and intestate succession from the moment of the child's birth, unless the surrogate elects to keep the child within seventy-two hours of the child's birth pursuant to Section 6-104(d). Thus, if the intended parents, or either of them, dies during the pregnancy or within seventy-two hours of the child's birth and the surrogate does not elect to keep the child, the child is the child of the deceased intended parent or parents for testate or intestate succession purposes. If the surrogate dies within seventy-two hours of the birth of the child without having elected to keep the child, the child is not a child of the surrogate for testate or intestate succession purposes. Similarly, if the surrogate's husband dies during the pregnancy or within seventy-two hours of the birth of the child, the child is the husband's child for testate or intestate succession purposes only if the surrogate elects to keep the child pursuant to Section 6-104(d) of this [Act]. In order to ensure that the child has only one set of parents, it is necessary to relate the parent-child relationship back to the moment of birth, even though the parenthood of that child may not be known for seventy-two hours after the child's birth.
If the surrogate elects to keep the child pursuant to Section 6-104(d) of this [Act], the child is not the child of the intended parents for purposes of testate and intestate succession. Rather, the child is the child of the surrogate and her husband, if any, for such purposes. If the surrogate has no husband, the child is the child of the surrogate and any person presumed to be the child's father under Section 2-102(a)(4).
Nothing in Section 3-105 precludes the surrogate or intended parents or any other person from making a testamentary provision for a child born to the surrogate even though that child is not the child of that person.
A child whose parents are determined under the provisions of Article 2 of this [Act] is a member of the class of children or issue of any such parent in favor of whom a gift has been made under the will of such parent or any other person. For example, if a father created a testamentary trust to pay the income to his daughter, M, for life, remainder to M's death the trust then, unless the father's will provides otherwise, upon M's death the trust corpus would be distributed to M's children, including any child of M determined under Article 2 of this [Act].
If a child born to a surrogate dies more than seventy-two hours after the child's birth, inheritance from the child is determined according to the parent-child relationships established under Article 2. If the child dies within seventy-two hours of birth, the determination of parenthood will not be known until the seventy-two hours expire, and parenthood, as so determined, will relate back to the moment of the child's birth. Thus, if the surrogate elects to keep the child, she and her husband, if any, are the parents of the child for inheritance purposes; if the surrogate does not elect to keep the child, the intended parents are the parents of the child for inheritance purposes.
Sinsemination shall be performed in accordance with regulations adopted by the [State Department of Health] and shall be available only to a woman:
(a) who is over the age of  years;
(b) who, if unmarried, successfully completes the nonmedical evaluation, and who, whether or not married, successfully completes the medical evaluation, receives appropriate counseling, pursuant to Article 7 of this [Act], and provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure; and
(c) whose husband, if the recipient is married, receives appropriate counseling pursuant to Article 7 of this [Act], and:
(1) successfully completes the medical evaluation, if he is the gamete donor in the insemination procedure,
(2) provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure, and
(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the insemination procedure.
[(c) whose partner, or husband if the recipient is married, receives appropriate counseling pursuant to Article 7 of this [Act] and:
(1) successfully completes the medical evaluation, if he is the gamete donor in the insemination procedure and, in the case of a partner, successfully completes the nonmedical evaluation, pursuant to Article 7 of this [Act],
(2) provides written certification of the counseling and any evaluation to the licensed person performing the insemination procedure; and
(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the insemination procedure.]
Comment to Section 4-101
Section 4-101 sets forth the eligibility requirements for insemination. The eligibility criteria of Section 4-101 achieve a balance between an individual's interest in receiving insemination and the best interests of any resulting child. Insemination need not be medically necessary for fertilization for a woman's participation in insemination to fall within the coverage of this article. Section 4-101 is also intended to eliminate the concerns of health care providers regarding possible liability for providing insemination to single women.
Section 4-101 contemplates the provision of insemination services to single as well as married women. This reflects a policy determination that neither marital status nor sexual preference alone should adversely affect a woman's eligibility to participate in insemination. The bracketed Section 4-101(c) gives states an option to provide coverage to all couples that participate in insemination, whether or not the partners are married to one another. Expanding coverage beyond married couples extends parenthood rights and responsibilities to unmarried partners and provides a legal relationship for any child born through insemination to both partners composing an unmarried couple.
The minimum age requirement in Section 4-101(a) reflects a policy determination, based on increased health risks accompanying teenage pregnancy, that it is undesirable for individuals under the age of eighteen to have children through insemination. The age limitation is bracketed because the choice of any particular age is somewhat arbitrary and enacting states may therefore validly differ in judgment.
Section 4-101(b) requires unmarried women to successfully complete a nonmedical evaluation pursuant to Section 7-101. Unmarried partners are similarly required by bracketed Section 4-101(c)(1) to complete a nonmedical evaluation successfully. Married couples are exempted from nonmedical evaluation because such an evaluation impermissibly intrudes into the marital relationship and because, for married couples, insemination is primarily a medical procedure designed to resolve problems of infertility. The privacy of the marital relationship outweighs the possible benefits of nonmedical evaluation for any resulting child. An individual woman's privacy or an unmarried couple's privacy, however, does not seem to outweigh the possible benefits of nonmedical evaluation for any resulting child because the relationships and home environments of these people often prove unstable for a child.
Under Section 4-101(c)(2), a husband who contributes his own gametes for his wife's insemination need not provide written acceptance of parenthood. In this instance, the husband is the biological parent of any resulting child and, like all such parents, is responsible for the child. The exemption places such husbands in the same legal position as if a child were born to the marriage without use of insemination procedures. Husbands who do not contribute gametes for their wives' insemination, however, and unmarried partners, regardless of whether they contributed their gametes for the insemination, must accept parental responsibility by a writing. This provision is intended to secure the legal status and rights of the resulting child by eliminating the possibility of later litigation of such issues as support obligations or inheritance. Acceptance by the husband/partner of legal responsibility for any resulting child will discourage irresponsible behavior based on the absence of a formal marriage or biological paternity. The writing thus ensures that children are born only to those who willingly accept parental responsibilities.
All husbands, whether or not the sperm donor, and all women who are to be inseminated, must receive counseling. The level of counseling will depend upon all of the facts and circumstances, as indicated in the comments to Section 7- 103.
Licensed persons may not perform insemination procedures until they receive written certification that all appropriate counseling and evaluations are successfully completed. This requirement does not preclude the performance of insemination when counseling has taken place, but will continue after insemination and, therefore, is not complete. The statutory requirement of appropriate counseling means that level of counseling which is deemed necessary before insemination occurs.
For further comments, see the comments to Article 5, relating to in vitro fertilization.
IN VITRO FERTILIZATION
In vitro fertilization shall be performed in accordance with regulations adopted by the [State Department of Health] and shall be available only to a woman:
(a) who is over the age of  years;
(b) who, if unmarried, successfully completes the nonmedical evaluation, and who, whether or not married, successfully completes the medical evaluation and receives counseling, pursuant to Article 7 of this [Act], and provides written certification of the counseling and any evaluation to the licensed person performing the in vitro fertilization procedure; and
(c) whose husband, if the recipient is married, receives appropriate counseling, pursuant to Article 7 of this [Act], and:
(1) successfully completes the medical evaluation, if he is the gamete donor in the in vitro fertilization procedure,
(2) provides written certification of the counseling and any evaluation to the licensed person performing the in virto fertilization procedure, and
(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the in vitro fertilization procedure.
[(c) whose partner, or husband if the recipient is married, receives appropriate counseling, pursuant to Article 7 of this [Act] and:
(1) successfully completes the medical evaluation, if he is the gamete donor in the in vitro fertilization procedure and, in the case of a partner, successfully completes the nonmedical evaluation, pursuant to Article 7 of this [Act],
(2) provides written certification of the counseling and any evaluation to the licensed person performing the in vitro fertilization procedure, and
(3) indicates, by a writing, acceptance of the legal rights and responsibilities of parenthood for any resulting child unless the husband contributes his sperm for the in vitro fertilization procedure.]
Comment to Section 5-101
Article 5 governs eligibility for in vitro fertilization. The substantive provisions of Article 5 track the provisions of Article 4, relating to insemination procedures.
Section 5-101 delineates those individuals who are eligible candidates for in vitro fertilization programs. As with insemination procedures, in vitro fertilization is by and large a medical treatment for infertility rather than an experimental procedure. The limitations on eligibility, therefore, are focused largely on medical risks and the resulting child's interests.
Recognizing that the state may have a compelling interest in avoiding medical complications associated with pregnancy, particularly those complications associated with pregnancy resulting from in vitro fertilization, Section 5-101 mandates a minimum age of 18. The brackets around this age limit reflect the fact that states may reasonably choose a different age limit, although, in light of increased risks, the limit should reflect a point at which the woman is able to understand the risks of the procedure.
The restrictions on access to in vitro fertilization by married persons are tailored to specific risks and interests. Among other things, married persons are required to undergo medical screening to ensure that the in vitro fertilization will result in a healthy child. Medical screening is not unnecessarily intrusive nor does it impose prohibitive additional costs. See ' 7-102 comment. Married persons are not required to complete the nonmedical evaluation. They are required to complete an appropriate level of counseling as determined upon all facts and circumstances. For a discussion of the nonmedical evaluation requirement in the insemination context, see ' 4-101 comment, para. 4. See also ' 7-101 comment.
Marital status is not an appropriate basis for limiting the availability of in vitro fertilization, especially in view of the procreative privacy rights of both single and married persons. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The bracketed language in Section 5-101 states the option to provide coverage to all couples that participate in in vitro fertilization, regardless of marital status. Expanding coverage beyond married couples extends parenthood rights and responsibilities to unmarried partners and provides a legal relationship for any child born through in vitro fertilization to both partners composing an unmarried couple, thereby enhancing support, inheritance, and other rights.
All persons covered by Article 5 are required to undergo counseling. Although this requirement places an additional burden on employing in vitro fertilization, the state has an important interest in protecting the child and assuring informed decisions by parties employing the procedure. Cf. Berman v. Allan, 80 N.J. 421, 432, 404 A.2d 8, 14 (1979) (holding doctor liable for failing to inform pregnant woman of pregnancy's consequences). At present, in vitro fertilization involves greater risks to the woman and to the resulting fetus than does insemination. See Mushin, Spensley & Barreda-Hanson, Children of IVF, 12 CLINICS OBSTETRICS & GYNAECOLOGY 865, 871-73 (1985) (discussing hazards). Furthermore, its success rate is problematic; often repeated and expensive procedures are required. See Elias & Annas, Social Policy Considerations in Non-Coital Reproduction, 255 J. AM. MED. A. 62,200-03 (1983) (discussing IVF procedures). The interest in providing awareness of these facts, as well as needed emotional support, outweighs the costs of counseling imposed on persons who conceive a child through in vitro fertilization. For further discussion of counseling in the insemination context, see ' 4-101 comment, para. 8. See also ' 7-101 comment.
Persons who conceive a child through in vitro fertilization may use their own gametes or may acquire donor gametes or donor preembryos. Optimally, any child conceived will be biologically related to one of the resulting parents. This is not always possible. For example, when in vitro fertilization and preembryo implantation using the participants' own gametes has failed, donor preembryos or donor gametes may be made available to these participants. Similarly, men and women who are carriers of autosomal recessive genes that in combination would result in a defective or unhealthy child may have access to donor embryos to avoid transferring the undesired genes.
In those instances in which the father is not biologically related to the child conceived by in vitro fertilization, a written acknowledgement of his acceptance of the legal rights and responsibilities of parenthood is required. This requirement prohibits the husband or partner from denouncing the obligations of parenthood at a later time. This writing also serves to prevent competing claims of paternity. See ' 2-102; ' 2-102 comment.
For further information, see comment to Article 4, relating to insemination.
'6-101 REGULATORY PROCEDURES
(a) A surrogate arrangement is lawful only if it conforms to the requirements of this article and if, before the procedure to impregnate the surrogate:
(1) the licensed person performing the procedure receives written certification that the parties successfully completed the medical and nonmedical evaluation and counseling pursuant to Article 7;
(2) the surrogate arrangement has been judicially preauthorized pursuant to Section 6-103; and
(3) all parties to the surrogacy contract provide the licensed person performing the procedure with written indication of their informed consent to the arrangement.
(b) The procedure to impregnate a surrogate shall be performed only in accordance with regulations issued by the [State Department of Health].
Comment to Section 6-101
Under Section 6-101(a), only surrogacy contracts among parties who comply with the specific requirements of Article 6 are valid. Contracts that do not comply with the statutory requirements are void. If a surrogacy contract is void, no party may bring an action for damages under the contract, nor may the contract transfer parentage to the intended parents under Section 6-104. Thus, the surrogate, as the birth mother, is the mother of the child pursuant to Section 2-101, paternity is determined under Section 2-102, and the intended parents can acquire parental rights only by following state adoption procedures.
Section 6-101(a)(1) requires all parties to the surrogacy contract to successfully complete the medical and nonmedical evaluation provided for in Article 7. Unlike Articles 4 and 5, there is no exception for married couples. Both of the intended parents, who must be married to each other, as required in Section 1-102(7), and the surrogate and her husband, if any, must undergo evaluation.
The use of surrogacy is significantly different from the use of insemination or in vitro fertilization procedures under Article 4 and Article 5. This justifies the differing treatment afforded married couples using those procedures and married couples using surrogacy. First, the decision to have a child by using insemination or in vitro fertilization is no different than deciding to have the child naturally; neither decision requires the consent of anyone outside the family. Even when donated gametes are used, the couple's decision is essentially private, for the donors are usually anonymous and are therefore not involved in the decision. Nonmedical evaluation of married couples using these procedures would be as intrusive of the couple's privacy as would the evaluation of couples conceiving naturally. Second, the nonmedical risks to the child that may be caused by using insemination or in vitro fertilization are limited. For example, although there is a risk that parents may not appreciate childrens' desire to know the nature of his or her conception, denial of this information to a resulting child should not cause extreme distress. Finally, because the risks associated with insemination or in vitro fertilization may be adequately addressed through the less intrusive requirement of counseling, see ' 7-103, the intrusion of nonmedical evaluation is usually unnecessary.
The privacy of a married couple in a surrogate arrangement stands in contrast to that of a married couple using insemination or in vitro fertilization. The decision to use a surrogate requires the intimate involvement of a person outside the family, not only in the decision to have a child, but throughout the process of conception, gestation, and delivery. Similarly, a married couple's decision to have the wife be a surrogate is entirely dependent on the desire of another family. In both cases, the couples have chosen to involve those outside their own family in their decision to have a child. Therefore, the requirement of nonmedical evaluation does not involve the same degree of intrusion as it would with insemination or in vitro fertilization.
Surrogacy also creates a variety of nonmedical risks to the potential child that are not present in the other regulated procedures. For example, the surrogate, after relinquishing the child to the intended parents, might change her mind and want the child back. This danger was recently illustrated in the Baby M case. See In re Baby 'M', 217 N. J. Super. 313, 525 A.2d 1128 (N. J. Super. Ct. Ch. Div. 1987). Here, the surrogate's potential difficulty in relinquishing the child was identified in an initial evaluation, but that finding was never revealed to either the surrogate or the intended parents. Nonmedical evaluation would attempt to identify and reveal such information before the surrogate becomes pregnant.
Another potential risk of surrogacy is that, because of the bond between a child and his or her gestational mother that occurs in utero, the child will suffer when removed from that woman's care. See R. SNOWDEN, G. D. MITCHELL & E. M. SNOWDEN, ARTIFICIAL REPRODUCTION: A SOCIAL INVESTIGATION 170-71 (1983). Requiring successful completion of the nonmedical evaluation attempts to address this concern and other unknown risks of surrogacy by attempting to ensure the child a good home.
For an explanation of the requirement of informed consent, see ' 1-102 comment, paras. 2-5.
(a) All parties to a surrogacy contract must be over the age of .
(b) The intended mother must be medically determined to be physiologically unable to bear a child without serious risk to her health or to the child's health.
(c) The intended mother or the intended father must provide a complete gamete to be used to impregnate the surrogate.
(d) The intended mother or the surrogate must provide the ovum.
(e) No woman can be a surrogate unless she has a documented medical history of at least one uncomplicated pregnancy and uncomplicated vaginal delivery.
Comment to Section 6-102
Section 6-102 provides the rules of eligibility for surrogacy. Becuase of surrogacy's unknown long-term effects on the surrogate and the child, and its known risks of custody litigation and unwanted, deformed children, the use of this procedure should be limited. This section restricts surrogate arrangements to those that allow a married couple who are otherwise unable to have a child to have one that is biologically related, while using the simplest medical procedure.
Subsection 6-102(a) provides a bracketed age minimum for parties to the surrogacy contract. An age requirement is based on the increased health risks accompanying teenage pregnancy. Although states may reasonably choose a different age limit, this limit should take into account the emotional difficulties of surrogacy and the ability of the parties to give informed consent.
Subsection 6-102(b) limits intended parents to those who are unable to have, or are medically advised against having, a child naturally or through insemination, in vitro fertilization, or other medically assisted conception. This section thereby excludes married couples from using surrogacy for convenience.
Only medical conditions that create serious risks to the health of the mother or child, or that make pregnancy impossible, are sufficient causes for using a surrogate. Examples of sufficient causes include lack of a uterus, severe hypertension, severe epilepsy, and a known or strongly suspected X-lined genetic disease.
In all cases, a medical procedure that would result in a safe pregnancy with high prospects for a healthy baby should be attempted before surrogacy. For example, if the woman is known, or is strongly suspected, to pass a defect such as hydrocephaly, then in vitro fertilization with preembryo transfer to the intended mother using a donated ovum, or a transfer of donated preembryos to the intended mother, should be attempted before surrogacy.
Section 6-102(c) requires the child to be biologically related to one of the intended parents. It also excludes the use of developing technologies; such as recombining DNA and replacing the nucleus of an ovum, that may allow more than one person to contribute to a single gamete.
Section 6-102(d) restricts the ovum used in a surrogacy arrangement to either the ovum of the intended mother or the ovum of the surrogate. The parties may use the intended mother's ovum so that she is related to the child, or they may use the surrogate's ova and insemination using the intended father's semen. Besides guaranteeing that one of the intended parents is biologically related to the child, these limits ensure that only the safest procedures are used. A donated ovum may not be used because it would require the risk of an additional medical procedure without resulting in either intended parent being a biological parent.
Subsections (c) and (d) read together substantially limit the possible combinations of gametes allowed in a surrogate arrangement. For example, if donated semen is used, the intended mother must provide the ovum so that the child will be related to an intended parent. Similarly, if the surrogate's ovum is used, the intended father must provide the semen. Because subsection (d) effectively prohibits using a donated ovum, the only other combination available is using the intended father's semen with the intended mother's ovum.
Section 6-102 requires a surrogate to have a documented medical history of one uncomplicated pregnancy and vaginal delivery. These eligibility requirements ensure the physical ability of the surrogate to carry a child to term. They are also necessary if a surrogate is to realistically give her informed consent. See ' 6-104(d), para. 9.
'6-103 JUDICIAL PREAUTHORIZATION
A petition for preauthorization of a surrogacy arrangement must be brought in the [district court] for the [district] in which the surrogate resides at the time the petition is filed.
(b) Petition for Preauthorization Hearing.
(1) Prior to insemination or in vitro fertilization of a surrogate, the parties to a surrogacy contract, as specified in Section 6-104, shall jointly petition the [court] for judicial preauthorization of the surrogacy arrangement.
(2) The petition shall contain:
(i) the full name, age, place, and duration of residence of all petitioners;
(ii) the date and place of the intended parents' marriage;
(iii) the date and place of the marriage, if any, of the surrogate and her husband;
(iv) a copy of the duly executed surrogacy contract;
(v) all required written consents;
(vi) all evaluations and reports required by this [Act]; and
(vii) the name and address of the licensed person who will perform the procedure.
(c) Time of Hearing; Notice.
(1) After the filing of a petition for preauthorization, the [court] shall fix a time and place for hearing within  days.
(2) Notice of the filing of the petition and the time and place of hearing shall be given by petitioners at least 10 days prior to hearing to any person who conducted any nonmedical or medical evaluations or counseling pursuant to Article 7 of this [Act].
(d) Hearing and Validation of Surrogacy Arrangement.
(1) Petitioners must be present at the hearing.
(2) The parties may offer additional evidence deemed relevant by the [court], and the [court] may require the submission of such additional information as it deems appropriate under the circumstances.
(3) An order validating the surrogacy arrangement shall be issued only if, after the hearing, the [court] makes the following findings:
(i) All parties to the surrogacy contract have given their informed consent;
(ii) The surrogacy contract conforms to all of the requirements of Section 6-104 of this [Act] and contains no prohibited or unconscionable terms; and
(iii) Evaluations and counseling, pursuant to Article 7, have been completed, and petitioners have been determined by the persons performing the evaluations or counseling to be qualified to enter into the surrogacy arrangement as provided by this [Act].
(4) The effect of a judicial order validating the surrogacy arrangement shall be the automatic termination of the parental rights of the surrogate and her husband, if any, 72 hours after the birth of a child born as a result of the arrangement and a vesting of those rights solely in the intended parents, unless the surrogate exercises her rights under Section 6-104(d) of this [Act] to keep the child, in which case any parental rights of the intended parents shall be terminated and shall be vested solely in the surrogate and her husband, if any.
(e) Closed Hearings and Record.
(1) All hearings shall be closed to the public. The only persons admitted shall be essential officers of the [court], parties, witnesses, and counsel.
(2) All papers and records pertaining to the surrogacy hearing are subject to inspection only upon consent of all petitioners or upon a showing of strict necessity supported by a court order.
Comment to Section 6-103
Section 6-103 describes the procedures that must be followed by the parties to a surrogacy agreement in order for that agreement to be a valid and binding contract. Essentially, Section 6-103 determines the validity of the contract prior to the impregnation of the surrogate. Once the contract is determined to be valid, it cannot later be challenged.
Section 6-103 provides that, prior to insemination or in vitro fertilization of a surrogate, the parties to the surrogacy arrangement must receive judicial authorization of the surrogacy arrangement. The [court] will authorize and validate the surrogacy arrangement only after making particular findings following a hearing on the matter.
The goals of the hearing and judicial preauthorization are therefold: (1) to ensure that all the parties to the surrogacy contract have given their informed consent tothe surrogacy arrangement; (2) to ensure that the surrogacy contract is fair, reasonable, valid, and in conformance with the [Act]; and (3) to ensure that the surrogacy contract permits the surrogate to keep the child if she complies with Section 6-104(d) of this [Act].
The goal of assuring informed consent is accomplished in a number of ways. First, Section 6-103(b)(1) provides that the parties to a surrogacy arrangement must jointly petition the court for the judicial preauthorization of the surrogacy arrangement. Since all parties to the contract must jointly petition for approval of the contract, they are not required to receive notice. In contrast, Section 6-103(c)(2) requires that, at least ten days prior to the hearing, petitioners give notice of the filing of their petition for preauthorization, including the time and place of the hearing, to any person who conducted any medical or nonmedical evaluation or counseling pursuant to Article 7. This will assist the [court] in determining whether the parties have acted with informed consent and whether approving the contract serves the best interest of the child.
Section 6-103(d)(1) provides further assurance that informed consent will be given by the parties to the arrangement by requiring that petitioners be present at the hearing. Finally, Section 6-103(d)(3)(i) explicitly provides that the [court] shall issue an order validating the surrogacy arrangement only upon finding that all parties to the arrangement have given their informed consent to the surrogacy arrangement.
The main goal of Section 6-103 is to have a [court] determine in the judicial preauthorization hearing that the proposed surrogacy contract is fair, reasonable, and in conformity with the requirements of the [Act]. In order to facilitate this decision, Section 6-103(b), among other things, requires that the petition for judicial preauthorization contain the following: the names, ages, and addresses of all petitioners; the date and place of marriage of the intended parents and of the surrogate and her husband, if any; a copy of the proposed surrogacy contract; all required written consents; and all reports and evaluations required by the [Act].
To provide the [court] with all possibly relevant information at the hearing, and to provide flexibility in the hearing process, Section 6-103(d)(2) allows the parties to offer, and the [court] to consider, additional relevant evidence. This section empowers the [court] to require the parties to submit any additional information that the [court] believes is necessary, relevant, or appropriate in the particular circumstances of any given case.
As a condition for valid authorization, Section 6-103(d)(2)(iii) requires the [court] to find that all evaluations and counseling have been completed pursuant to Article 7 and that the petitioners are persons who are qualified to enter into the surrogacy arrangement. This finding applies to both the intended parents, the surrogate, and her husband, if any, since one or more of them may ultimately become the parent of the resulting child. After consideration of all the relevant facts pursuant to Section 6-103(d), the [court] can validate the surrogacy arrangement, but only upon finding that the written contract contains all of the provisions required by Section 6-104 and contains no prohibited or unconscionable terms. By requiring an assessment of the validity of the surrogacy contract prior to performance, these provisions help justify the finality of a judicial preauthorization order as established in Section 6- 103(d)(4).
The third purpose of Section 6-103 is to ensure that all proposed surrogacy contracts allow the surrogate to elect to keep the child at any time prior to seventy-two hours after a child's birth. Because the surrogate is presumed to be the mother of the resulting child, see ' 2-101, and because the surrogate may decide that she desires to keep the resulting child, Section 6-103(d)(4) ensures that the surrogate will always have seventy-two hours after the birth of the child in which to withdraw any prior consent to the termination of her parental rights. Requiring that a surrogate finally relinquish her claim on the resulting child upon contract, or at some other point before the child's birth, would force the surrogate to decide before completion of the bonding process and could result in long-term emotional harm. Thus, the surrogate should be allowed to decide to keep the child sometime after it is born. Giving the surrogate a seventy-two-hour period recognizes that a newborn child usually leaves the hospital approximately seventy-two hours after birth. By firmly and finally establishing the rights and duties of all parties involved before the child leaves the hospital, Section 6-103(d)(4) in conjunction with Section 6-104(d) prevents undue emotional or physical hardship to the child or to the other parties involved. See ' 6-104(d) comment, paras. 6-8.
In addition to constituting a final decision on the validity of the surrogacy arrangement generally, the judicial order automatically establishes specific rules governing the parentage of the child. Section 6-103(d)(4) provides that the effect of a judicial order validating a surrogacy arrangement is to terminate the parental rights of the surrogate and, if she is married, of her husband seventy-two hours after the birth of the child and to vest them exclusively in the intended parents, provided that the surrogate does not give notice as provided in Section 6-104(d) that she elects to keep the child. If the surrogate gives such notice within the seventy-two-hour period, then she and her husband, if any, retain all of the parental rights to the exclusion of the intended parents, and any parental rights of the intended parents are terminated and vested solely in the surrogate and her husband, if any. Even if Section 6-103(d)(4) did not exist, a judicial order validating a surrogacy agreement would obligate the parties to the agreement to follow the rules prescribed by that section. See Article 2; ' 6-103(d)(3); ' 6-104(a)-(c). The purpose of Section 6-103(d)(4) is to independently and directly provide that these events must occur.
In order to provide privacy to all of the parties involved in the surrogacy arrangement and to encourage the parties involved to disclose any and all possibly relevant information to the [court], Section 6-103(e)(1) states that all hearings will be closed to the public. Finally, Section 6-103(e)(2) provides that all papers and records relating to the proceeding are subject to inspection only upon the consent of the petitioners. Upon a showing of strict necessity, however, nonidentifying information from the record can be made available to a resulting child who attains age eighteen. See ' 9-201(e). These provisions reflect a balance between certain individuals' strong desire to know general facts about their biological parents' national origin, background, physical characteristics, and the like, and the privacy rights of the surrogate and the intended parents.
'6-104 MANDATORY TERMS OF SURROGACY CONTRACT
A surrogacy contract must be signed by the intended parents, the surrogate, and, if she is married, the surrogate's husband and shall include the following provisions:
(a) the consent of the surrogate that she will surrender custody of the child or accept the obligation of parenthood if she gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];
(b) the consent of the husband of the surrogate, if any, that he will surrender custody of the child or accept the obligation of parenthood if the surrogate gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];
(c) the consent of the intended parents that they will accept the obligations of parenthood unless the surrogate gives notice of intent to keep the child as provided in Section 6-104(d) of this [Act];
(d) the right of the surrogate to keep the child if, at any time prior to 72 hours after the birth of the child, the surrogate:
(1) executes a signed writing of her intention to keep the child; and
(2) delivers the writing to the intended parents or the attending physician.
This right can only be exercised personally by the surrogate and cannot be exercised by any guardian or other legal representative of the surrogate.
(e) A provision for adequate coverage through insurance or otherwise of health care expenses of the surrogate and the child for the term of the pregnancy and six weeks after the termination thereof for complications caused by the pregnancy or birth;
(f) if the surrogate will receive a fee, a provision that the fee will be deposited into an escrow account at a federally insured institution prior to a conception and held in escrow until:
(1) relinquishment of parenthood to the intended parents; or
(2) the contract is terminated before a live birth by means other than a breach by the surrogate. In this case, the surrogate will receive that portion of the fee which the parties to the surrogacy contract shall have provided for in the surrogacy contract.
Comment to Section 6-104
Section 6-104 sets forth the terms that a surrogacy contract must contain. This section is intended to be an aid for contract drafters and for the court during the judicial preauthorization hearing provided for in Section 6-103. While the parties to a surrogacy contract can draft a contract tailored to their particular needs, the contract must contain the provisions delineated in this section.
In addition to the mandatory contractual terms provided for in Section 6-104, the parties to a surrogacy contract may want to include additional contractual terms. Provisions for health or life insurance on the lives of both the surrogate and the intended parents are encouraged. The parties may wish to include provisions that relate to the life style of the surrogate during the term of the pregnancy, such as not smoking, drinking alcohol, or using drugs. The parties may wish to add a provision that would allow the child to learn of the arrangement at some future date and may wish to contract specifically with respect to who is to make health care decisions for the child within the seventy-two-hour period following the child's birth. See ' 3-101. These additional terms or provisions are encouraged but are not required. While such terms may be desirable, the parties should be allowed to draft a contract to fit their particular needs.
Section 6-104(a)-(c) is intended to ensure that each party to the surrogacy contract accepts the responsibility of parenthood in the event that party becomes the parent of the child. These provisions are required for all parties to the surrogacy contract because of the possibility that the surrogate may elect to keep the child within the seventy-two-hour period following the child's birth. See ' 6-104(d).
Section 6-104(d) requires that the contract include a provisions allowing the surrogate to retain custody and parenthood of the child provided she executes and delivers a writing of her intention to keep the child to the intended parents or the attending physician within seventy-two hours after the birth of the child. Since the surrogate's right to give this notice is absolute, it can be given by the surrogate whether or not the child is living. This provision, like the other required provisions, cannot be waived. If the surrogate does not exercise her option to keep the child within the seventy-two-hour period, the intended parents become the child's parents and the surrogate's parental rights terminates. See ' 2-103; see also ' 6-103(d)(4). If the surrogate exercises her option to keep the child, her decision is final. Therefore, under Section 2-101 the surrogate continues to be the child's mother and the child's father, if any, is determined under Section 2-102. In light of these provisions, the custody of the child and the determination of the parent-child relationship is determined finally no later than seventy-two hours after the child's birth.
The election to keep the child must be exercised, in all events, during the seventy-two-hour period and may only be exercised by the surrogate. No guardian or other legal representative may give the notice on behalf of the surrogate. If the surrogate is legally incapable of giving the notice throughout the seventy-two-hour period, her right to give the notice expires, and the intended parents become the parents of the child. If the child is defective and neither the surrogate nor the intended parents want to keep the child so that the child becomes the ward of the state, any obligations to the state are the intended parents' obligations, not the surrogate's obligations. Section 6-106(c) contemplates that if the intended parents do not want the child and the surrogate elects to keep the child, perhaps to keep the child from becoming the ward of the state, the surrogate may recover child support from the intended parents.
Section 6-104(d) balances the interests of all parties to the surrogacy contract as well as the child and eliminates long custody disputes. Available evidence suggests that custody disputes should be settled as soon as possible to protect the interests of the child and that, once made, the decisions should remain final. See J. GOLDSTEIN, A. FREUD & A. SOLNIT, BEYOND THE BEST INTEREST OF THE CHILD 42-45 (1973). The seventy-two-hour period ensures that in most situations the custody and parent(s) of the child will be determined before the child leaves the hospital.
Under Article 7, all parties to a surrogacy contract undergo a nonmedical evaluation to determine their suitability to parent a child. Accordingly, the child born to a surrogate should not be injured by the seventy-two-hour rule. If the surrogate elects to keep the child, the child will be placed with a woman who has been determined to be a suitable parent and to whom the child has become bonded during the in utero period. See D. SMITH & L. SHERWEN, MOTHERS AND THEIR ADOPTED CHILDREN--THE BONDING PROCESS 67-68 (1983). If the intended parents, who were also determined to be suitable to parent a child, become the parents of the child, the child will be able to begin the bonding process with them shortly after birth and in all likelihood as soon as the child leaves the hospital.
The seventy-two-your rule is also in the best interests of the child because it places a degree of certainty in the custody determination. An alternative approach that requires a custody hearing after the birth of the child might not accomplish this goal. A custody hearing may be disputed or delayed. In this situation, the psychological bonding process between the intended parents, if they receive custody, and the child is delayed.
Section 6-104(d) protects the interests of the surrogate by giving her an option to retain custody of the child. Until effective screening procedures are developed to determine which women will make good surrogates, a woman may enter into the agreement without fully understanding the promises she is making. For example, the surrogate may not realize the full impact of giving up the child when the contract is made, although the requirement in Section 6- 102(e) that the surrogate have had one uncomplicated pregnancy and delivery should help to avoid this problem. If the surrogate is forced to surrender custody of the child, some studies indicate that this may cause the surrogate long-term psychological problems. See Condon, Psychological Disability in Women Who Relinquish a Baby for Adoption, 144 MED. J. AUSTL. 117, 118 (1986). While some may consider the seventy-two-hour period too short to allow the surrogate an opportunity to decide whether to keep the child, most surrogates who will regret their decision to surrender the child will begin to experience doubts about the decision during the pregnancy. Therefore, the seventy-two- hour period added to the term of the pregnancy should be enough time for the surrogate to make her decision, especially when concerns for protection of the surrogate are balanced against the best interests of the child and the interests of the intended parents.
Section 6-104(d) is also designed to further the interests of the intended parents by ensuring that, once the seventy-two-hour period has expired without the surrogate exercising her option, she will not later be able to challenge the custody rights and parenthood of the intended parents. Under a rule that makes the surrogate's contractual promise to surrender custody of the child enforceable immediately, there is a chance for custody disputes. See In re Baby 'M', 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987). If the surrogate begins to doubt her decision before the child is born, the surrogate may leave the state, and the result may be a long custody battle, with the laws of other jurisdictions complicating the dispute. With the seventy- two-hour rule, however, the surrogate who regrets her decision will be able to exercise her option and will not subject the child or the intended parents to the emotional suffering and uncertainty of an extended custody dispute.
Although Section 6-104(d) allows a surrogate to change her mind, the seventy- two-hour rule is designed to decrease the number of surrogates who actually do change their minds. Section 6-104(d) provides an incentive for the intended parents to ensure that the surrogate is selected by the best evaluation procedures that are available. This same incentive ensures that surrogacy contracts contain provisions to give the surrogate adequate counseling before, during, and after the pregnancy to help her cope with problems she may experience bysurrendering custody of the child. Finally, the surrogate's decision is not cost free. If the surrogate elects to retain custody of the child, the intended parents are entitled to restitution damages to the limited extent provided for in Section 6-106(a).
Section 6-104(e) requires that a health care provision be included in the surrogacy contract. This section is intended to ensure that the surrogate and the child receive adequate medical care. This section allows for their health care costs to be provided for through the use of insurance or otherwise. Requiring the parties to obtain insurance coverage may not be practical because of the commercial unavailability of health care coverage for surrogacy arrangements. Therefore, the parties may use whatever means are available to ensure that the health care costs will be paid.
Section 6-104(f), requiring that any fee be held in escrow, is intended to protect both the surrogate and the intended parents. The surrogate's fee must remain in the account until the contract is completed. The surrogate will receive her fee if she does not materially breach the contract or elect to keep the child pursuant to Section 6-104(d). In this way, the surrogate is assured that she will receive her compensation if she completes the contract. In addition, the surrogate's decision to keep the child pursuant to Section 6- 104(d) will not be influenced by the fear that she will have to return to the intended parents a substantial sum of already expended money. The intended parents also are protected in the event that the surrogate breaches the contract, because the intended parents can recover the fee. Because of this requirement, insolvent surrogates cannot demand a substantial immediate payment, spend all of the money, and then refuse to perform. By requiring performance before payment, Section 6-104(f) removes the lure of an immediately available large sum of money and ensures that surrogates have thought about their ability and desire to perform. For these reasons, in no event can the contract provide for a distribution of the fee to the surrogate until the relinquishment of parenthood to the intended parents or the termination of the contract other than by a breach by the surrogate. This section does not prohibit payment to the surrogate for reasonable medica or living expenses before completion of the contract.
Although not required, an ideal contract would provide for a pro rata payment to the surrogate in the event that the pregnancy is terminated before birth in circumstances that do not constitute a breach of the contract. For example, the surrogate may have to undergo several unsuccessful inseminations before the contract is terminated pursuant to Section 6-106(b), or an abortion may be required to protect the surrogate's health. In these situations, the surrogate should receive some compensation for her time and services. What compensation, if any, the surrogate receives in such circumstances is negotiable by the parties.
'6-105 NO SPECIFIC PERFORMANCE RULE
There shall be no specific performance for a breach by the surrogate of a surrogacy contract term that:
(a) requires her to become impregnated;
(b) requires her to have an abortion; or
(c) forbids her to have an abortion.
Comment to Section 6-105
Section 6-105 prohibits specific performance for breach of a contract term requiring the surrogate to become impregnanted, requiring her to have an abortion, or forbidding her to have an abortion. Section 6-105 is intended to safeguard the surrogate's right to privacy in matters that affect her own body. This section is meant to conform with existing Supreme Court decisions regarding abortions and also draws on contract law regarding personal service contracts.
Because of Supreme Court decisions, starting with Roe v. Wade, 410 U.S. 113 (1972), the enforceability of a contract term forbidding the surrogate to have an abortion is doubtful. See Coleman, Surrogate Motherhood: Analysis of the Problems and Suggestions for Solutions, 50 TENN. L. REV. 71, 85 (1982). But see Note, Developing a Concept of the Modern 'Family': A Proposed Uniform Surrogate Parenthood Act, 73 GEO. L.J. 1283, 1314 n.162 (1985). The [Act] reflects a judgment that the surrogate should be entitled to make decisions regarding her own body notwithstanding the terms of the surrogacy contract.
The ability to specifically enforce the types of contract terms embodied in this section is also questionable under existing contract law. See, e.g., Keane, Legal Problems of Surrogate Motherhood, 1980 S. ILL. L.J. 147, 168. Generally, courts will not order specific performance of a personal service contract. See J. FRIEDMAN, CONTRACT REMEDIES IN A NUTSHELL 123 (1981). Courts will refuse to order specific performance as a remedy for breach of a personal service contract, for three reasons. First, if the breaching party is reluctant to perform, the adequacy of the party's performance will be difficult to ensure. Second, contracts of a personal nature require the parties to have a continuing relationship. In some situations the court might feel it is undesirable to force the parties to continue the relationship once ill feelings develop. Last, specific enforcement of a personal service contract often puts the breaching party into a form of involuntary servitude. See generally E. FARNSWORTH, CONTRACTS ' 12.7, at 835-36 (1982).
Specific performance should not be a remedy for a breach of the contract terms specified in this section. For instance, it would be undesirable and pose a difficult enforcement problem if the court could compel a surrogate to become impregnanted or to forbid the surrogate from having an abortion. In these situations, the surrogate could take actions that might endanger the fetus or be contrary to the interests of the intended parents. In addition, the relationship between the surrogate and the intended parents is one that demands a degree of trust and loyalty. In the situations dealt with by this section, it would not be in the best interests of the parties for a court to force a continuation of the relationship once a dispute has arisen. Furthermore, a judicial decree requiring the specific performance forbidden by Section 6-105 enslaves the surrogate mother by forbidding important choices of a highly emotional, intimate nature.
While the surrogate will not be held to specific performance for breach of a contract term that is included in this section, the intended parents may recover restitution for their expenses. See ' 6-106(a).
(a) The intended parents may recover only health care expenses and the fee prescribed in Section 6-104(f) if:
(1) the surrogate refuses to become impregnanted;
(2) the surrogate has an abortion that is not medically necessary without the consent of the intended parents; or
(3) the surrogate elects to keep the child as provided in Section 6- 104(d).
(b) If the surrogate fails to become pregnant through no fault of either party within nine months after the surrogacy contract has been judicially approved pursuant to Section 6-103 of this [Act], the contract is voidable at the option of either party.
(c) If the intended parents breach a material term of the contract, the surrogate may:
(1) recover health care expenses that the intended parents were required to pay;
(2) collect the fee that is provided for in the contract; and
(3) if the breach is refusal to accept the child within 72 hours after birth, the surrogate may file notice pursuant to Section 6-104(d) of this [Act] and the intended parents may be liable for support.
Comment to Section 6-106
Under Section 6-106(a), if the surrogate refuses to become impregnated, has an abortion that is not medically necessary without the consent of the intended parents, or elects to keep the child, the intended parents may recover any fee, and restitution damages for any of the surrogate's or resulting child's health care expenses. Section 6-106(a) is intended to limit existing contract law remedies for the awarding of restitution damages. Under this section, the intended parents will be reimbursed for health care expenses they paid during the period the contract was in force. The intended parents will also be able to collect the entire fee set aside for the surrogate mother in the escrow account. See ' 6-104(f).
Section 6-106(a) applies only if the surrogate refuses to become impregnanted, unnecessarily aborts the fetus, or elects to keep the child pursuant to Section 6-104(d). In all other cases where the surrogate breaches the contract or is negligent, the intended parents may recover whatever contract or tort damages are available through existing law. If the surrogate's breach relates only to conduct described in Section 6-106(a), the court is limited in its choice of remedies to the fee and to restitution for health care expenses. If the intended parents can prove another breach or negligence, involving conduct extraneous to Section 6-106(c), then the court may resort to contract or tort remedies available through existing law, provided that such relief is given to remedy only the extraneous conduct. Thus, a cause of action in addition to and extraneous to those described in Section 6-106(a) does not nullify the limit on available remedies applicable to the conduct prescribed by that section.
Stated in terms of existing law, Section 6-106(a) implies that health care costs and the fee are adequate compensation for pecuniary injury caused exclusively by the described conduct and that any emotional injury suffered by the intended parents because of that conduct is not reasonably measurable in money damages. Under general contract law principles, a court will not award damages for emotional injury resulting from a breach of contract. There are exceptions to the general rule, however, in cases in which the breach is particularly likely to cause the injured party serious emotional injury. See E. FARNSWORTH, CONTRACTS ' 12.18, at 894-95 (1982). Expectation damages for this grave emotional harm must be proved to a 'reasonable certainty.' J. FRIEDMAN, CONTRACT REMEDIES IN A NUTSHELL 42 (1981). The remedy provided for the intended parents by Section 6-106(a) disallows damages for emotional harm, in part because of the difficult in measuring the actual harm that the intended parents suffered from the conduct described in that section. In each of the three stated situations, the injury to the intended parents will be the loss of the child, and this cannot be measured by money damages. The surrogate's negligence or breach that does not involve conduct described in Section 6- 106(a), however, may cause a reasonably measurable injury in addition to health care costs and the fee, and for this injury, existing law should dictate the remedy.
Section 6-106(a) also limits damages for reasons unique to a surrogacy arrangement. While the surrogate's actions may cause emotional harm to the intended parents, damages are limited to health care expenses and the fee to further the other goals of this [Act]. First, the possibility of the surrogate being liable for an uncertain and potentially large sum of money may interfere with her right to make childbearing decisions under Sections 6-104(d) and 6- 105. Second, the child may be injured indirectly if the surrogate decides to exercise her option to keep the child pursuant to Section 6-104(d) and consequently becomes liable for a large sum of money. Last, limiting damages in this manner gives the intended parents a further incentive to seek out a properly evaluated surrogate and to provide her with the necessary counseling that would enable her to carry out her obligations under the contract. The recovery of health care expenses and the fee should help the intended parents financially in hiring another surrogate and attempting to have a child. Because the reasons given above are weaker for injuries not involving the conduct described in Section 6-106(a), existing law should control their remedy.
Under Section 6-106(b), the surrogacy contract can be terminated by either party if the surrogate does not become pregnant within nine months. This section applies to those situations where the surrogate fails to become pregnant through no fault of either party. In this way, the costs for unsuccessful attempts at impregnation will be limited and responsibilities will cease peaceably.
Section 6-106(c) provides a remedy for the surrogate in the event of a material breach by the intended parents. In general, if the intended parents breach the contract, the surrogate is entitled to her entire fee plus any expenses that she must bear which were to be paid by the intended parents. The surrogate is able to collect expectation damages because the value of her injury can be determined by the contract fee.
Section 6-106(c)(3) provides that, if during the seventy-two-hour period following the child's birth the intended parents refuse to accept the child, the surrogate may exercise her option to retain custody of the child pursuant to Section 6-104(d) and the intended parents may be liable for child support. This section serves to protect the child. Some intended parents will inevitably refuse to accept the child because of birth defects or for other reasons, such as the unanticipated death of one of the intended parents. When the intended parents refuse to accept custody of the child, the surrogate should be allowed to file the notice under Section 6-104(d), and the intended parents should still be liable for child support. This helps ensure that the child gets a parent and that the party at fault bears the cost.
Section 6-106(c)(3) does not specify how the intended parents' refusal to accept the child must be evidenced prior to the expiration of the seventy-two- hour period. Thus, the determination of whether they have refused to accept the child within seventy-two hours of the child's birth and prior to the surrogate's notification pursuant to Section 6-104(d) must be based upon all the facts and circumstances. While this may result in subsequent litigation between the intended parents and the surrogate, the issue in that litigation will be strictly limited to whether the intended parents breached the contract prior to the surrogate's election to keep the child, for in all events the surrogate, having timely filed the notice, is entitled to the custody of the child.
EVALUATION AND COUNSELING
'7-101 NONMEDICAL EVALUATION
(a) A nonmedical evaluation shall be performed by [a person authorized by the State Department of Health] who shall maintain a record of the findings and conclusions and make a copy of them available only to the person evaluated.
(b) The person conducting the nonmedical evaluation shall determine the party's suitability to parent by considering, in accordance with regulations of the [State Department of Health]:
(1) the ability and disposition of the person being evaluated to give a child love, affection, and guidance;
(2) the ability and disposition of the person being evaluated to provide a child with food, clothing, shelter, medical care, and other basic necessities; and
(3) any other factors required by rule of the [State Department of Health].
Comment to Section 7-101
Section 7-101(a) provides that any nonmedical evaluation shall be performed by a person authorized by the [State Department of Health]. This person shall maintain a record of his or her findings and conclusions, and a copy shall be made available to the person being evaluated. The copy that is given to the person being evaluated, or a copy thereof, should then be given to any person performing a procedure under Article 4 or 5, in order to comply with the certification requirements under those articles, and should be attached to the petition for preauthorization of the surrogacy contract.
The purpose of Section 7-101(b) is to protect the interests of potential children by preventing those unsuited to be parents from obtaining access to the regulated procedures. Although general considerations relevant to parentage--the ability to nurture and support a child--are provided in Section 7-101(b)(1) and (2), more precise standards against which these abilities are to be measured are deliberately omitted. Each state must determine the extent to which it will use this regulation to prevent individuals from having children and choose the standard of evaluation accordingly.
For example, a state may decide that intended parents should not be subject to standards more stringent than those for normal parents simply because they are biologically unable to bear a child. The state could then provide a standard for evaluation that would measure a person's suitability to parent against the minimum ability needed for a parent to keep a child in an action by the state to terminate parental rights. This minimum standard, for instance, might prevent an individual's access to a regulated procedure only if there is a substantial probability that the resulting child will have to be permanently removed from the parents' custody because of abuse or neglect. Such a standard holds the right of a person to have a child on par with, or above, the state's interest in protecting the potential child and would result in few people being denied access to the reproductive technologies.
Alternatively, a state may choose the standard often used in the evaluation of prospective adopting parents. This standard places an affirmative duty on the evaluator to determine that the person evaluated is likely to be a good parent, rather than merely to find that the person is not likely to abuse or neglect the child. This determination requires a more extensive intrusion into the person's privacy by requiring a home study or an investigation into the person's employment record. By placing the best interests of the potential child above the individual's right to have a child, this standard would prevent more people from using the regulated procedures than would the first standard.
If a person does not successfully complete the nonmedical evaluation, the state may require a certain time to elapse before that person may apply again or may allow the person conducting the evaluation to set specific conditions that the person must meet before successful completion will be certified. For example, the person may be required to obtain regular employment or to pursue a rehabilitative program for drug or alcohol abuse.
By passing regulations under Section 7-101(b)(3), the state may also mandate that the existence of certain factors automatically excludes a person from successful completion of nonmedical screening. For example, the state could excluding a person for a history of child abuse, a conviction of a violent sexual crime, or a conviction of a felony within a certain number of years.
'7-102 MEDICAL EVALUATION
(a) General requirements;
(1) Gamete Donors. No gamete shall be used in an insemination procedure, in an in vitro fertilization procedure, or in a surrogacy arrangement unless the gamete donor has been medically evaluated and the results, documented in accordance with regulations promulgated by the [State Department of Health], demonstrate the medical acceptability of the person as a gamete donor.
(2) Recipients of Insemination and In Vitro Fertilization. No woman shall undergo an insemination procedure under Article 4, an in vitro fertilization procedure under Article 5, or be a surrogate under Article 6, unless the woman has been medically evaluated and the results, documented in accordance with regulations promulgated by the [State Department of Health], demonstrate the medical acceptability of the woman to undergo the insemination or in vitro fertilization procedure or to be a surrogate.
(b) Until such time as the [State Department of Health] promulgates regulations required by Section 7-102, medical evaluations shall be made in accordance with the relevant sections of the guidelines published by the American Fertility Society.
Comment to Section 7-102
The general objectives of Section 7-102 are: (1) to minimize the risks of transmitting health or genetic problems to mothers or children from gametes used in any of the procedures covered by this [Act]; (2) to facilitate record keeping; (3) to provide criteria for liability avoidance under Article 8 of this [Act]; and (4) to promote the appropriate and efficient use of the procedures covered by this [Act].
Section 7-102(a)(1) requires that all persons contributing gametes undergo a medical evaluation regardless of the ultimate disposition of the gametes or the resulting preembryo. The evaluation should include a thorough genetic and health history and must certify that, in the professional judgment of the evaluator, the gametes are acceptable for use in any of the procedures covered by this [Act].
This section authorizes the [State Department of Health] to promulgate specific rules governing the acceptability of gamete donation. These rules may vary with the different settings in which the evaluations occur. For instance, if a married couple contributes both gametes and the wife will be the recipient, professional medical judgment may allow the use of gametes, in insemination or in vitro fertilization procedures, that would be unacceptable if the gametes were provided for anonymous use or in surrogacy.
The following example further illustrates this point. A married woman, thirty-seven years old, is otherwise eligible to participate in in vitro fertilization using her husband's sperm. Due to the increased risks of birth defects associated with the woman's age, she would not be acceptable as an anonymous ovum donor. Still, if the couple is fully informed of the alternatives available and, in their judgment and that of the physician, the risks are acceptable, then the couple should be allowed into the in vitro fertilization program.
Section 7-102(a)(2) contemplates a fertility and health evaluation. This evaluation should determine the most efficacious procedure, if any, that each person or couple seeking treatment should follow. For example, a woman with blocked or missing fallopian tubes is not considered an acceptable candidate for insemination. A woman who is severely hypertensive, who is diabetic, or who suffers from a similar ailment might not be, in the judgment of the evaluator, an acceptable candidate for any of the procedures covered by this [Act].
In the case of insemination programs, the medical evaluation requirement is not intended to restrict the actual insemination to physicians. Nonphysician practitioners, however, must be able to document compliance with this section before proceeding with the insemination.
Section 7-102(b) serves to implement the medical evaluation requirements of Section 7-102(a) in the absence of any state regulation. This incorporates a minimum standard of medical practice and procedure into the [Act]. The provision allows each state flexibility to either continue to use the guidelines adopted by the American Fertility Society (AFS), adjust these medical evaluation regulations in light of each state's circumstances, or reassess regulations as the practice of infertility treatment is refined.
Under some state constitutions, incorporations like that made in Section 7- 102(b) may pose a problem. The [Act] minimizes this likelihood because, under Section 7-102(b), the [State Department of Health] may promulgate regulations in place of the AFS guidelines. If a state constitutional problem remains, then a state should modify Section 7-102(b) accordingly.
The AFS guidelines, Ethics Committee, The American Fertility Society, Ethical Considerations of the New Reproductive Technologies, 46 FERTILITY & STERILITY 1S (Supp. 1 of Issue 3 1986); Minimal Standards for Programs of In Vitro Fertilization, 41 FERTILITY & STERILITY 13 (1984); New Guidelines for the Use of Semen Donor Insemination: 1986, 46 FERTILITY & STERILITY 95S (Supp. 2 of Issue 3 1986), were chosen because they represent the judgment of a nationally recognized organization that is actively involved in both the medical and ethical issues inherent in infertility treatment.
For any procedure under Articles 4, 5, and 6 of the [Act], the prospective parents of a resulting child and, for a surrogacy arrangement, all parties to the surrogacy contract, shall receive counseling by a [qualified mental health care professional] pursuant to rules promulgated by the [State Department of Health].
Comments to Section 7-103
Section 7-103 requires that all prospective parents of a child resulting from the use of insemination, in vitro fertilization, or surrogacy participate in counseling by a qualified mental health care professional pursuant to rules promulgated by the [State Department of Health]. While the need for counseling varies by individual circumstance and type of procedure, the general requirement of counseling is based on the fact that the decision to use assisted reproduction is not merely a medical decision, but a decision that emerges from the complex set of motivations and expectations surrounding a person's desire to have children.
Using assisted reproduction, whether or not it results in a successful birth, will almost certainly have a serious and long-lasting effect on the adults involved. The consequences for a child born of these procedures are even more profound, for the procedures are determinative of the child's identity and upbringing. The long-term implications indicate the importance of providing a neutral forum to help people assess the costs and benefits of using a particular procedure and cope with issues that might arise once they have begun participating in an arrangement involving reproductive technologies. Counseling provides such a forum.
Counseling is necessary for persons to make an informed decision about whether or not to use a particular method of assisted reproduction. This [Act] provides a broad definition of informed consent, one that presumes an awareness not only of the medical risks, but also of associated psychological risks. In addition it presumes an awareness of financial and legal obligations, particularly those related to parentage. See ' 1-102(5). The availability of counseling is important to inform people and to help them evaluate their feelings about all these factors.
Counseling serves as a method of self-selection, allowing those people who are not fully prepared to accept the risks and obligations of parenthood to discover that fact before the child is conceived. It is difficult for individuals to separate the kind of decision making necessary to give informed consent from their feelings and desires for children. The advantage of providing counseling is that people can deal with issues related to their informed consent in conjunction with issues related to motivation. For example, a couple may discover that only one party wants the child or that they are attempting to solve personal or marital problems by having a child. In both cases, counseling assists people in clarifying their needs and interests and in considering the most appropriate way to meet those needs. Counseling can help people to choose a form of assisted reproduction, to consider adoption, or to learn how to cope with the pain of childlessness.
The level, timing, and duration of counseling depends, to some extent, upon the complexity of the procedure being used. When a woman is being inseminated with her husband's semen, only limited counseling may be necessary. In the case of a single woman who is inseminated with an anonymous donor's semen, the woman should consider her feelings about raising the child without a father and the effect that may have on the child. The counseling should be more extensive as the procedures involve more people, e.g., using donated gametes, or greater risks, e.g., using in vitro fertilization. When donor gametes are used, the noncontributing party should examine his or her feelings about infertility and the possible problems in forming a relationship with a biologically unrelated child. In in vitro fertilization, in which it is not uncommon to undergo several attempts without success, ongoing counseling is important to help people deal with raised expectations that may not be realized. Counseling should address certain issues with each person, no matter which procedure is involved. In all cases, potential parents should consider whether the use of assisted reproduction poses conflicts with the ethical or religious norms of their respective communities. Also, all potential parents should be encouraged to consider the issue of informing the resulting child of the nature of the child's conception.
The counselor should discuss all of the medical and nonmedical risks, together with associated legal and financial responsibilities, with the individual. Although the risks and responsibilities vary with each procedure and are likely to change with advances in technology, the following information might be conveyed. In insemination, the woman should understand the risk of infection and the possibility that insurance may not cover the cost. See, e.g., The University of Iowa Hospitals and Clinics, Agreement of Understanding, distributed with Information for Patients Receiving Artificial Insemination of Donor Semen (no date) (copy on file with the Iowa Law Review). In in vitro fertilization, the parties should understand the relatively low success rate, see Annas & Elias, In Vitro Fertilization and Embryo Transfer: Medicolegal Aspects of a New Technique to Create a Family, 17 FAM. L.Q. 199, 206-07 (1983), and the risks of laproscopy, of using fertility drugs, and of ectopic pregnancy, see The North Carolina Memorial Hospital, Consent for In Vitro Fertilization (no date) (copy on file with the Iowa Law Review). In surrogacy arrangements, the parties should understand the medical risks outlined above, as well as the risks associated with embryo transfer, other relevant procedures, and emotional stress.
In a surrogate arrangement, all parties need to be aware of these medical risks, but they also need to understand the associated contractual and legal obligations. The complex interrelationships in a surrogacy arrangement indicate a particular need for more extensive counseling. The intended parents need to be aware that the surrogate has the right to elect to keep the child. They need to consider the potential emotional impact of living with this uncertainty and the effect its uncertainty might have on their lives. On the other hand, they need to be aware, should the surrogate have a deformed child, that they would be responsible for the child's care. The surrogate needs to be made aware of the contractual responsibilities that she will have during the term of her pregnancy and, to the extent possible, to understand the potential emotional difficulty in relinquishing a child. The surrogate also needs to examine her motives for entering a surrogate agreement, to be sure they are compatible with the decision eventually to relinquish the child. She should be sure her decision to accept the role is entirely voluntary--that it is not the result of pressure, either from financial need or from the intended parents. The surrogate may be encouraged to continue counseling during the pregnancy and after relinquishing the child. Her husband, if she has one, should also participate in counseling. He must understand that, if his wife decides to keep the child, he will be the child's father. The surrogate's husband should evaluate his feelings about his wife's proposed role and his prospective ability to nurture and raise the child in the event his wife elects to keep the child. The parties to the surrogacy contract should also understand and agree upon the nature of their relationship during and after the pregnancy.
LIABILITIES AND IMMUNITIES FOR PARTICIPANTS OF INSEMINATION, IN VITRO
FERTILIZATION, AND SURROGACY
(a) No person shall be subject to civil or criminal liability for nonnegligent actions taken pursuant to the requirements of this [Act].
(b) A physician or other health care provider, whose actions under this [Act] are in accord with reasonable medical standards, shall not be subject to criminal or civil liability or discipline for unprofessional conduct with respect to those actions.
(a) A person who acts in willful noncompliance with this [Act]:
(1) shall be guilty of [a class ___ misdemeanor];
(2) shall be liable for resulting damages; and
(3) may be jointly and severally liable for child support to the resulting child under the laws of [this State].
(b) The sanctions provided in this section are in addition to any other sanctions provided under applicable law.
Comment to Article 8
This article outlines the extent of liability bestowed on persons for action taken under this [Act]. Section 8-101 offers immunity for all those actions taken in compliance with this [Act]. Special provisions protect physicians and other health care providers who act in accordance with applicable standards of professional judgment.
Civil liability may be imposed upon those persons acting in negligent noncompliance with the [Act]. In cases of negligent medical evaluations or malpractice, damages may be required only to compensate for a proximately resulting injury. For example, should such negligence occur, damages may be required to cover the added cost of medical expenses required to care for a deformed child, but damages may not be imposed for support of the child.
Criminal and civil liability may be imposed for willful noncompliance with the [Act]. In contrast to negligent noncompliance, civil liability for willful noncompliance may include joint and several liability for support. For example, when a couple engages the service of a surrogate without following the procedures outlined in this [Act], the couple as well as the surrogate and her husband may all be liable for the support of any resulting child. Criminal penalties may also be imposed under existing state criminal law except when the penalties are inconsistent with the provisions of this [Act]. For example, no person who complies with this [Act] should be guilty under existing baby- selling statutes.
'9-101 LICENSURE AND REGULATION OF COLLECTION AND STORAGE OF HUMAN GAMETES AND/OR PREEMBRYOS
The [State Department of Health] shall establish standards to be applied by, as well as make rules governing the licensure or authorization of, persons who engage in the collection, storage, or use of gametes and/or preembryos for the uses authorized by this [Act].
Comment to Section 9-101
This section provides that the [State Department of Health] is responsible for establishing minimum standards for the issuance of licenses to persons, as defined in Section 1-102(12), such as individual health care providers, hospitals, fertility clinics, sperm banks, and any other facility engaged in the collection, storage, or use of human gametes and preembryos for uses authorized by this [Act]. This section is intended to protect the public interest of the state's citizenry in the safe and professional operation of these facilities and the safe and professional conduct of procedures provided for in this [Act].
The minimum standards should govern the qualifications and types of personnel that should be available at these facilities or who engage in the procedures. These standards should regulate the various types of equipment needed for the different technologies. The standards should provide requirements for genetic evaluation in the process of the collection and storage of gametes. The evaluation requirements also should provide for evaluation for Acquired Immune Deficiency Syndrome (AIDS), veneral disease, and other diseases, as well as for a family history of inheritable physical or mental illness. All these standards will help protect the health interests of children conceived through gamete donation. It is suggested that the genetic evaluation standards adopted by the American Fertility Society serve as a model for the genetic evaluation requirements. See Ethics Committee, The American Fertility Society, Ethical Considerations of the New Reproductive Technologies, 46 FERTILITY & STERILITY 83S-84S (Supp. 1 of Issue 3 1986) (giving American Fertility Society's recommended minimum genetic screen for gamete donors).
In establishing minimum standards, the [State Department of Health] should also consider the adoption of rules relating to the following issues:
(a) Limits on the number of times a single donor's gametes may be successfully used within a particular geographic or ethnic community. Such a limit may be necessary to minimize risk of consanguineous marriages between children born through these procedures.
(b) Whether any payments may be made for a gamete donation. While barring such payment may promote altruism in gamete donations and honesty about one's medical history, it will discourage donation by potential donors who would have to take uncompensated release time from work. On the other hand, although payment may promote donations, it may discourage some donors from revealing information about their medical history that might serve as grounds for rejection of the donation. In both England and Australia, no payment for a gamete donation is permitted but the donor may be reimbursed for actual expenses and lost compensation. See Hargreave, Artificial Insemination by Donor, 291 BRIT. MED. J. 613, 613-14 (1985); see also New South Wales Law Reform Comm'n 50-51 (1984) (advance copy). At France's government sperm banks, the Centers for the Study and Preservation of Semen, donors may not receive payments. Recipients, however, are asked to recruit volunteer donors for future recipients. See David & Lansac, The Organization of the Centers for Study and Preservation of Semen in France, in HUMAN ARTIFICIAL INSEMINATION AND SEMEN PREPARATION 20 (G. David & W. Price eds. 1979); see also WORKING PARTY COUNCIL FOR SCIENCE AND SOCIETY, HUMAN PROCREATION: ETHICAL ASPECTS OF THE NEW TECHNIQUES 42-43 (1984).
(c) Storage fees for gametes stored for future personal use. Some individuals may wish to store their gametes for personal future use. For example, this may be the case where the gamete owners anticipate future exposure to toxic substances, such as drug therapy or radiation, that could damage their reproductive capabilities. Different considerations may govern charging a storage fee here than in most gamete donation situations.
(d) Periodic testing for continuing viability of the donated gamete and notification under appropriate circumstances to the gamete donor.
(e) Methods of storage. For example, states should consider encouraging the freezing of gametes over the immediate use of donated gametes in order to provide adequate time for through genetic evaluation.
(f) Time limits for the storage of gametes and whether they should vary depending on the purpose of the storage.
'9-102 RECORD KEEPING
(a) The [State Department of Health] shall require all licensed persons to keep records in accordance with Section 9-201 of this [Act].
(b) The [State Department of Health] shall periodically review these records for accuracy and completeness to assess the licensed person's compliance with the standards promulgated under Section 9-101 of this [Act].
Comment to Section 9-102
This section requires the [State Department of Health] to ensure continuous compliance by persons licensed under Section 9-101 of this [Act] with the standards promulgated under that section and with the record-keeping requirements set out in Section 9-201 of this [Act]. For a discussion of the reasons for record-keeping requirements, see ' 9-201 comment. Section 9-102 is not meant to provide the exclusive means a state may se for ensuring compliance with the standards established under Section 9-101. The [State Department of Health] is encouraged to develop enforcement methods best tailored to ensure compliance with its choice of standards.
'9-103 RESTRICTIONS ON USE OF PREEMBRYOS
(a) No preembryo shall be maintained ex utero beyond 14 days postfertilization development.
(b) No preembryo that has been donated for use in research shall be transferred to a uterine cavity.
Comment to Section 9-103
This section bans absolutely the use of preembryos in two situations. First, no preembryo may be maintained ex utero beyond fourteen days post-fertilization development. Because further preembryo development essentially cases at the lowered temperatures used in cryopreservation techniques, the fourteen-day limit does not include the time period during which these techniques are used to maintain the preembryo. While a developmental limit of fourteen days is somewhat arbitrary, this is generally recognized as the maximum time frame in which the status of preembryo is retained. Beyond fourteen days true embryonic development may be apparent: loss of the ability to twin is assured and structural differentiation of the embryo begins. See ETHICS ADVISORY BD., U. S. DEP'T OF HEALTH, EDUC. & WELFARE, REPORT ON IN VITRO FERTILIZATION, reprinted in 44 Fed. Reg. 35,033, 35,057 (1979) (fourteen-day limit); Report of the Comm. of Inquiry into Human Fertilisation and Embryology, in M. WARNOCK, A QUESTION OF LIFE, THE WARNOCK REPORT ON HUMAN FERTILISATION 66 (1984) (same); VICTORIAN GOV'T COMM. TO CONSIDER THE SOCIAL, ETHICAL AND LEGAL ISSUES ARISING FROM IN VITRO FERTILISATION, REPORT ON THE DISPOSITION OF EMBRYOS PRODUCED BY IN VITRO FERTILISATION 6.15 (1984) (fourteen-day limit).
Second, no preembryo that has been donated for research purposes can later be implanted in order to further embryonic development. Such a use is unethical in light of the effect these research methods may have on the preembryo's normal development processes.
Section 9-103 must be read in conjunction with the requirements of informed consent in this [Act]. Therefore, persons who contemplate entering into an in vitro fertilization procedure must be fully informed of the alternatives for the ultimate disposition of the preembryos that may result. The alternatives may include retention for the couple's later use, transfer to another infertile person, or transfer to a research facility.
'9-104 RIGHTS IN GAMETES AND PREEMBRYOS
Except as provided in Sections 9-105, 9-106, 9-107, and 9-108, no person, other than a donor, can have rights in a donor's gametes or preembryo.
Comment to Section 9-104
The general purpose of Section 9-104 is to preclude any claim of rights by a donor's spouse or partner with respect to the gametes or preembryos produced by the donor. A spouse of a donor may have rights in the donor's gametes or preembryos only if the donor retains rights under Section 9-106(b) upon transferring the gametes or preembryos to a licensed person and the donor subsequently transfers those retained rights to the spouse under Section 9- 107(c).
'9-105 TRANSFERABILITY OF GAMETES AND PREEMBRYOS
(a) Except as provided in Section 9-107, gametes and preembryos may be transferred only to a licensed person.
(b) Gametes and preembryos shall not be transferable by will or intestate succession.
Comment to Section 9-105
Section 9-105(a) provides generally that gametes and preembryos may be transferred only to a licensed person. All subsequent transfers of gametes or preembryos by a licensed person must also be to a licensed person. Thus, once transferred to a licensed person, gametes and preembryos shall remain in the possession of licensed persons until used as authorized in this [Act] or destroyed.
Section 9-105(a) is necessary for the efficient regulation of reproductive technologies. A state can effectively implement its substantive regulatory policies with respect to gametes and preembryos only when the gametes or preembryos are in the possession of licensed persons. Furthermore, a state generally should not attempt to regulate gametes or preembryos prior to their transfer to a licensed person.
This general rule does not preclude a donor from personally storing the donor's own gametes prior to their transfer. For example, a donor and a licensed person may arrange for the donor to collect his own gametes and then periodically transfer them to the licensed person.
Furthermore, this section does not speak generally to the retention or transfer of rights to gametes or preembryos. Although forbidding repossession after transfer, this section does not forbid a donor from retaining rights to the gametes or preembryos upon transfer. See ' 9-106(b). Likewise, if a person transfers possession of gametes or preembryos to a licensed person and in that transfer retains rights in the gametes or preembryos, this section does not forbid the donor from transferring the retained rights to the donor's spouse. See '' 9-105, 9-106.
Section 9-105(b) prohibits the transfer of gametes or preembryos by will or intestate succession. This rule effectively prevents persons from attempting to control their fertility after death.
'9-106 RIGHTS IN TRANSFERRED GAMETES AND PREEMBRYOS
(a) Except as provided in Section 9-106(b), a transfer of gametes or preembryos transfers all rights of the transferor with respect to the gametes or preembryos.
(b) A person who transfers gametes or preembryos may retain such rights with respect to them as are not inconsistent with the provisions of this [Act], by a written agreement with the transferee executed prior to the transfer.
(c) All rights of an individual with respect to gametes or preembryos shall terminate at the individual's death.
(d) All rights of any person with respect to a preembryo shall terminate upon implantation.
(e) Unless otherwise provided by written agreement, where two gametes are combined and a preembryo is created, each person who had rights with respect to either gamete shall have the same rights with respect to the preembryo, and conflicting rights with respect to the preembryo shall have priority in the following order:
(1) First, rights of a sperm donor who had retained rights with respect to his sperm, or the rights of the sperm donor's spouse.
(2) Second, rights of an ovum donor who had retained rights with respect to her ovum, or the rights of the ovum donor's spouse.
(3) Third, rights of a licensed person who had rights with respect to the ovum.
(4) Fourth, rights of a licensed person who had rights with respect to the sperm.
(f) Upon the death or dissolution of the licensed person in possession of gametes or preembryos, such gametes or preembryos shall be disposed of in accordance with the provisions of Section 9-108.
Comment to Section 9-106
Section 9-106(a) provides that, in the absence of a writing to the contrary, transfer of gametes or preembryos transfers all rights of the transferor with respect to the gametes or preembryos. This applies to both the initial transfer by a donor to a licensed person and to all subsequent transfers between licensed persons. A transfer of gametes or preembryos will not, however, transfer any rights that the transferor did not have.
Section 9-106(b) allows a transferor who wishes to store gametes or preembryos for a later use to retain some rights with respect to those gametes or preembryos. Any retention of rights must be in writing prior to the transfer. This section allows the parties to structure the storage arrangement, e.g., storage fees and rights upon default, as they see fit.
Any such retention of rights, however, must not be inconsistent with the provisions of this [Act]. A donor may not retain the right to regain possession of the gametes or preembryos since that would violate Section 9- 105(a), which prohibits a transfer of gametes or preembryos to an unlicensed person. One of the rights the donor may retain under Section 9-106(b) is the right to direct the transfer of the gametes or preembryos to a different licensed person who will perform insemination, implantation, or some other authorized use desired by the donor. Likewise, the donor may retain the right to have gametes or preembryos transferred from one storage facility to another. The donors may also retain the right to have their gametes or preembryos destroyed at any time.
Under Section 9-106(b), other persons who have rights with respect to gametes and preembryos may also retain these rights upon a transfer of the gametes or preembryos. For example, a storage facility that transfers several preembryos to a physician for an impregnation may retain the right to have any unused preembryos returned.
Section 9-106 imposes some further limits upon a person's rights with respect to gametes or preembryos. Under Section 9-106(c), an individual's rights with respect to gametes or preembryos terminate at the individual's death. Under Section 9-106(d), all retained rights in a preembryo terminate at implantation. This rule reflects the fact that no transfer can occur after implantation without terminating the embryo's capacity to develop further.
Under Sections 9-106 and 9-107, both donors (or their spouses) and licensed persons can have rights with respect to transferred gametes. Presumably, the agreement in which the donor retains rights with respect to transferred gametes will establish the priority of rights as between the donor and any licensed person.
Using in vitro fertilization, two gametes may be combined to create a preembryo. Under Section 9-106(e), each person who had rights with respect to either gamete shall have the same rights with respect to the preembryo, unless otherwise provided by written agreement. Since these persons may have conflicting rights, Section 9-106(e) establishes a default system to determine whose rights have priority. For example, under the priority rules if a husband and wife contribute gametes to create preembryos without specifying the disposition of the preembryos to be controlled, in the event of conflict between the husband and wife regarding disposition of the preembryos, the husband as sperm contributor shall control the disposition.
Section 9-106(e) is intended to minimize the potential for harm to any child resulting from use of the preembryos. The section's default system protects the interests of any resulting child by minimizing the potential for litigation over the child or in some cases by eliminating the possibility that a child could be born to the couple at all. To illustrate, the husband from the above example cannot bear a child himself, and if the preembryos are implanted in another woman, maternity is settled by Section 2-101. Section 9-106(e) also helps minimize the possibility that a sperm contributor who does not consent to the use of the preembryos will be determined the father of any resulting child by the operation of Section 2-102. This would be possible if the ova contributor could control the use of the preembryos.
Because Section 9-106(e) ranks the rights of persons with respect to preembryos only to protect the resulting child from disputes over conflicting rights, these persons may alter the default system to suit their preferences. The default priority rules may be altered by written agreement. Also, control of the preembryo will vary when one donor retains rights and the other does not. In both of these situations, as well as in the arrangement between donors and licensed persons, there should be no conflict of rights and thus no need for a default system.
If the sperm of a donor who has neither retained any rights nor transferred to his spouse any rights with respect to the sperm is combined with the ovum of an unmarried donor who has retained no rights with respect to the ovum, all licensed persons who had rights with respect to the gametes shall have the same rights with respect to the preembryo. When these rights conflict, the rights of the licensed persons who had rights with respect to the ovum shall have priority over the rights of licensed persons who had rights with respect to the sperm.
'9-107 TRANSFER OF RIGHTS WITH RESPECT TO GAMETES AND PREEMBRYOS
(a) A person may transfer rights with respect to gametes or preembryos by gift or sale, but only by a signed writing, or by a simultaneous transfer of the gametes or preembryos pursuant to Section 9-106(a).
(b) Rights with respect to gametes or preembryos shall not be transferable by will or intestate succession.
(c) A donor may, prior to the donor's death, transfer rights retained by the donor to the spouse of the donor, but only if the donor has no retained rights after the transfer.
(d) Except as provided in Section 9-107(c), a person may transfer rights with respect to gametes or preembryos only to a licensed person.
Comment to Section 9-107
Section 9-107 states the rules by which rights with respect to gametes or preembryos may be transferred. Rights with respect to gametes or preembryos may be transferred along with the transfer of the gametes or preembryos pursuant to Section 9-106(a). If rights are retained under Section 9-106(b) at the time of the transfer of the gametes or preembryos, such rights may be subsequently transferred only by an executed writing to that effect.
In general, Section 9-107(d) provides that rights with respect to gametes or preembryos may be transferred only to a licensed person. An exception to this rule is that a donor who has retained rights may, during the donor's lifetime, transfer all retained rights to the donor's spouse. If the donor had previously transferred some of his or her retained rights to a licensed person, then the donor would have to transfer all of the donor's remaining retained rights to his or her spouse for the exception to apply. The transfer to the donor's spouse must be all or nothing, to avoid the possibility of a donor and spouse having inconsistent rights with respect to the gametes or preembryos.
To illustrate, a husband engaged in an occupation that poses a high risk of death may desire to store his sperm and transfer his retained rights to the sperm to his spouse. If the husband died, his spouse could still direct the use of the gametes for the purpose of bearing a child of her deceased husband. When the husband transfers his rights to his spouse during his lifetime, and the spouse desires to use the sperm after his death, presumably both husband and spouse contemplated that the spouse might want to bear a child of the deceased husband. An inter vivos interspousal transfer of a donor's retained rights with respect to gametes or preembryos is acceptable to accomplish this result.
The transfer of such rights by will or intestate succession, however, is disallowed. It is generally undesirable for a surviving spouse to have a child of the deceased spouse through the use of artificial reproductive techniques, especially when the deceased spouse did not, during his or her lifetime, transfer rights with respect to the gametes or preembryos to the surviving spouse. In such a situation, the presumption that both spouses at some point contemplated that the surviving spouse would have the deceased spouse's child is unwarranted.
'9-108 DISPOSITION OF GAMETES AND PREEMBRYOS UPON THE DEATH OR DISSOLUTION OF THE PERSON IN POSSESSION
(a) Gametes and preembryos in the possession of an individual shall be destroyed at the time of that individual's death.
(b) Gametes and preembryos in the possession of a licensed person who is not an individual shall, at the time of that licensed person's dissolution, be disposed of in the following manner:
(1) Those gametes and preembryos in which no other person has rights:
(i) shall be transferred by gift or sale to a licensed person; or
(ii) shall be destroyed.
(2) Those gametes and preembryos in which another person has rights:
(i) shall be transferred by gift or sale to a licensed person, subject to those rights; or
(ii) shall be destroyed, if, after reasonable efforts to dispose of the gametes and preembryos under Section 9-108(b)(2)(i), no licensed person accepts them.
Comment to Section 9-108
Section 9-108(a) provides clear direction to the executor of an individual in possession of gametes or preembryos at the time of that individual's death, regarding the disposition of those gametes or preembryos. In a small number of instances, this rule imposes a significant hardship. For example, when the donor of the gametes or preembryos has retained rights with respect to them and then becomes infertile, the donor suffers a hardship. Nonetheless, these costs are outweighed by the benefits gained by not requiring an executor to determine who, if anyone, has rights with respect to any of the gametes or preembryos that were in the possession of the deceased individual.
This section applies to individuals who are improperly as well as properly in possession of gametes. An individual in proper possession of gametes or preembryos includes a physician who is a licensed person.
Section 9-108(b) applies to sperm banks and other facilities where the person in possession is not an individual. The amount of gametes and preembryos in the possession of these persons, and the loss from their destruction, is likely to be substantially greater than when the person in possession is an individual. Thus, in this context, it is more reasonable to treat the person in possession as holding assets under Section 9-108(b)(1) or, when retained rights are involved, like a bailee under Section 9-108(b)(2). Although it is preferable to allow the transfer of the gametes and preembryos whether or not rights have been reserved, when this is not practicable these gametes and preembryos shall be destroyed.
'9-109 STATUS AS LIVES IN BEING: THE RULE AGAINST PERPETUITIES
(a) For purposes of the Rule Against Perpetuities, a person's life ends at the moment of his or her death even though such person may have gametes or preembryos deposited with a licensed or unlicensed person.
(b) For purposes of the Rule Against Perpetuities, a child born as a result of insemination, in vitro fertilization, or a surrogacy arrangement is the child of his of her parents determined under the provisions of Article 2 of this [Act] and is a life in being for the purpose of testing the validity of interests created by such parent, by an ancestor or descendant of such parent, or by any other person, but only if such child was alive at the creation of such interest, or was in utero at such time and born within 300 days thereafter.
Comment to Section 9-109
The purpose of this section is to clarify the impact of new reproductive technologies on the Rule Against Perpetuities. See J. GRAY, RULE AGAINST PERPETUITIES ' 201, at 202 (4th ed. 1942). Gamete and preembryo freezing and storage techniques have created the possibility that a person might posthumously produce children indefinitely, leading to the argument that the person continues to be a life in being for purposes of the Rule.
Section 9-109(a) provides that persons' lives end with their death even though they may have stored gametes and preembryos. This section is intended to eliminate any possible argument that for purposes of the Rule Against Perpetuities a person may continue beyond death as a life in being by storing gametes or preembryos.
To determine the validity of nonvested interests under the Rule Against Perpetuities, it may be necessary to ascertain who are the lives in being. See J. GRAY, RULE AGAINST PERPETUITIES ' 201 (4th ed. 1942). Under Section 9- 109(b), the lives in being at a person's death include the children of the person, determined under Article 2 of this [Act], only if such children are alive at the person's death, or are in utero at the time of such person's death and born within 300 days thereafter. For example, if a surrogate's husband dies while the surrogate is pregnant, leaving a will in favor of his descendents, the child born to the surrogate is a life in being to measure the validity of a nonvested interest created under this will only if the surrogate elects to keep the child pursuant to Section 6-104(d) making the surrogate's husband the father of such child under Article 2. If the surrogate makes no such election and the intended parents are treated as the parents of such child under Article 2, then such child is not a life in being to measure the validity of a nonvested interest created under the will of the surrogate's husband.
Under the common-law Rule Against Perpetuities, the children of a person who are lives in being at the person's death must be alive or in utero at the moment of the person's death. Section 9-109(b) modifies the Rule Against Perpetuities by adding a requirement that a person's children who are in utero at the person's death must also be born within 300 days thereafter. This modification addresses the technique of embryo lavage, whereby an unimplanted preembryo may be removed from the uterus and stored indefinitely before its return to a uterus and implantation. Most children in utero and not removed from the uterus by embryo lavage will be born within the 300-day limit. Any child in utero at the time of a person's death and subsequently removed by embryo lavage, however, will have to be implanted and born within 300 days of the person's death. Thus, the only effect of the modification in Section 9- 106(b) is the requirement that a person's children born after embryo lavage must be born within 300 days of the person's death in order to be lives in being.
'9-201 MAINTENANCE AND CONFIDENTIALITY OF RECORDS
(a) The [State Department of Health] shall create a Central Registry where all records listed under Section 9-201(b) and any others required by rule shall be kept.
(b) When a child is born as the result of the procedures governed by Article 4, 5, or 6 of this [Act], the attending physician shall report the following information, if available, to the Central Registry, which shall maintain it in confidence:
(1) the identification of the donor, including name, address, and social security number;
(2) the identification of the recipient, including name, address, and social security number;
(3) the identification of the surrogate and her husband, if any, including name, address, and social security number;
(4) the identification of any resulting children born from the donor;
(5) the county in which each birth occurred; and
(6) such other information as the [State Department of Health] may require by rule.
(c) Any person who destroys gametes shall notify the Central Registry of that fact, and shall provide such other information as required by rule.
(d) The [State Department of Health] shall provide by rule who will maintain the records, how long they must be maintained, where they shall be kept, and, subject to Section 9-201(e), the circumstances under which they may be disclosed.
(e) Access to Records:
(1) The identity of gamete or preembryo donors or surrogates shall be available only upon a showing of strict necessity supported by court order.
(2) The Central Registry shall notify any donor, any surrogate, or the parents of any child born as a result of the procedures governed by Article 4, 5, or 6 of this [Act], if known, of any information it acquires that poses a serious risk to the health of the child, the donor, the surrogate, or any other person.
(3) The records and information maintained in the Central Registry shall be made available for research under such terms and conditions as established by the [State Department of Health].
(f) Registration fees shall be determined by the [State Department of Health].
Comment to Section 9-201
The purpose of Section 9-201 is to ensure comprehensive and accurate record keeping of all parties utilizing the procedures governed by Article 4, 5, or 6 of this [Act], and of resulting births.
Accurate and comprehensive information is vital in providing data for statistical and public health research on the effects of the new reproductive technologies and in promoting the interests of both the donor and the child. Substantial research must be completed prior to expanding any use of artificial reproduction. Since actual practice points to expanding uses of artificial reproduction, record keeping must be implemented to assist researchers in this area. See R. SNOWDEN, G. MITCHELL & E. SNOWDEN, ARTIFICIAL REPRODUCTION: A SOCIAL INVESTIGATION 181-82 (1983).
It is in the best interests of the child that complete and accurate information be kept on the practice of conception through reproductive technologies. Pertinent records include the results of sperm/ovum donations in terms of successful conceptions and resulting births of healthy children. This information can also protect the parties involved from the danger of too many donations by a single donor, thus lowering the risk of consanguineous marriages between resulting children. Such records are especially vital to prevent recurrence of an inheritable disease that was not detected in the evaluation of donated gametes but later appears in either the donor or the child.
Besides ensuring safe birth and genetic health, information will benefit a resulting child throughout that child's life. For example, the child might need to know certain personal or social (although not necessarily identifying) information about the biological parents to help the child's healthy psychological development. The child may also need medical information about the child's biological parents in situations of illness or in making reproductive choices. Finally, such children may need to know the identity of their biological parents in order to avoid a consanguineous marriage.
Donors also have a strong interest in records being kept. Information on successful conceptions leading to births of healthy children will assist them with their own reproductive decisions. Donors would want to know if they or others in their family are at risk for an inheritable disease that would eventually affect them or their resulting offspring. Carriers of some diseases will not be discovered until the disease shows up in the next generation. Because the recipient should notify the Central Registry of any such disease, the donor could then be notified.
By requiring that states set up a Central Registry, Section 9-201(a) provides states with an opportunity to create an information system similar to that suggested by the Waller Commission and established in the Australian State of Victoria. The Waller Commission's proposed Bill to Amend the Infertility (Medical Procedures) Act 1984 emphasizes careful record keeping in the area of reproductive technology. Based on the Commission's recommendations, the Victorian government has established a comprehensive system of registration that is carried out by hospitals in conjunction with the Government Registry. Requiring creation of a Central Registry should help states follow this example.
Disparity in current record keeping practices suggests that it would be more accurate and efficient for each state to establish and maintain its own comprehensive Central Registry system where information could be stored. Because state regulation of the persons and procedures subject to this [Act] will vary from state to state, the exact information to be maintained in a Central Registry is not specified. Instead, the [Act] allows the relevant state agency to specify such matters by rule. Section 9-201(b) does, however, require that the attending physician provide a specific minimum of information at the time of birth.
The information requirements in Section 9-201(b) ensure the presence of the minimum amount of information needed adequately and efficiently to trace links between parties and, thus, avert the dangers of too many donations by a single donor in one community or the donation of flawed chromosomes not detected in the initial evaluation. Currently, the only available information on conception practices through the use of reproductive technology is the result of the 1979 survey of insemination practitioners in the United States. See Curie-Cohen, Luttrell & Shapiro, Current Practice of Artificial Insemination by Donor in the United States, 300 NEW ENG. J. MED. 585 (1979). The survey found that ninety-two percent of the responding physicians kept permanent records on recipient couples. Id. at 588. Thirty-seven percent kept permanent records of children born as a result of the insemination, but only thirty percent kept any permanent records on donors. Id. This disparity of practices in record keeping highlights the need for uniform guidelines governing the maintenance of records, the types of information to be kept, and access to this information.
Section 9-201(c) requires notification of the destruction of gametes to ensure the integrity of the licensing system established in Article 9.
Section 9-201(d) leaves the decision of how long records should be kept to each state. It is recommended, however, that the Registry maintain records for a minimum of one hundred years. This would provide the foundation for longitudinal research on the new reproductive technology and its effects on all involved parties. This would also enable the tracing of genetic disease that may show up in a second generation as well as assist the children in making their own reproductive choices.
Under Section 9-201(b), all records in the Central Registry are to be strictly confidential, subject to Section 9-201(e) of this [Act], in order to safeguard the right to privacy in making reproductive choices. Since anonymous donors generally have no intention of assuming any of the emotional or financial responsibilities of resulting biological parenthood, these donors have an important interest in confidentiality and nondisclosure of their identity to the child and the recipient couple. The recipient may have a strong interest in maintaining the donor's anonymity, to protect the unity of the family, a strong public policy consideration stemming from the notion that the donor's anonymity strengthens the parents' psychological identification with the child.
Section 9-201(e)(i) allows access to identifying information on gametes or preembryo donors and surrogates only upon a showing of strict necessity. The legal concept of necessity is derived from adoption cases dealing with children's access to identifying information about their biological parents. Like an adopted child, a child born as a result of third- party gamete donation usually does not know the identity of one or both of its biological parents. The adoption cases have found necessity or good cause for disclosure when identifying information is needed for medical or psychological reasons. See In re Anonymous, 92 Misc. 2d 224, 226, 399 N.Y.S.2d 857, 859 (Sup. Ct. 1977) (emotional reasons); In re Adoption of Female Infant, 5 Fam. L. Rep. (BNA) 2311, 2312-13 (D.C. Super. Ct. 1979) (psychological and medical reasons). While mere curiosity about one's origins does not amount to good cause for disclosure, disclosure is justified for adopted children when their social adjustment is impaired by lack of knowledge about their biological parents. See In re Ann Carol 'S.,' N.Y.L.J., Aug. 13, 1974, at 12, col. 6 (N.Y. Sur. Ct. Aug. 13, 1974).
In contrast to these cases, the [Act] intends a much stricter application of the strict necessity standard, effectively balancing the best interests of the child with the privacy interests of donors and recipient parents. Thus, in the context of the [Act], necessity relates more narrowly to those medical situations in which there is a serious risk to the health of the child and in which there is an immediate need for medical information not otherwise obtainable. A showing of strict necessity may be made through the testimony of physicians, phychologists, social workers, or other qualified professionals on a case-by-case basis before a court.
The [Act] does not address access to biological or medical information about donors or surrogates that is nonidentifying. The decision of whether and when to preclude parent or child access to this type of information is left to each state.
Section 9-201(e)(2) allows donors to notify recipients and recipients to notify donors indirectly through the Central Registry of any newly discovered medical information, e.g., a rare inheritable disease in the donor's family, that poses a serious risk to the health of the child. For example, the donor may notify the Central Registry, which in turn must notify the recipients, of a newly discovered inheritable disease in the donor's family. In this way, the Central Registry serves as a medium of communication for this important information while the parties are able to remain anonymous.
Section 9-201(e)(3) allows researchers access to information as determined by the [State Department of Health]. It is recommended that the [State Department of Health] require that the information be used strictly for purposes of statistical and public health research on the use and results of the new reproductive technology and its long-range effects on the parties involved.
Section 9-201(f) responds to funding concerns over a Central Registry established at the state level.