Establishing and Rebutting Maternity: Why Women Are at a Loss despite the Advent of Genetic Testing
De Vito, Amanda E., Albany Law Review
Surrogacy is an age old practice, dating to Biblical times. (1) Some scholars believe that surrogate motherhood pre-existed the famous story of Sarah and Abraham--Sarah, being barren, offered her handmaiden, Hager, to Abraham to act as a surrogate. (2) This surrogacy arrangement resulted in the conception and birth of Sarah and Abraham's first child, Ishmael. (3) Their story was merely the first to be recorded and known worldwide as a result of the Bible. (4) History has demonstrated the illustrious uses for surrogacy--most significantly, as a means of carrying on a family name or legacy. Yet, thousands of years later, society is still perplexed by the legitimacy and ethics accompanying surrogacy arrangements. Through assisted reproductive technology ("ART"), the possibility of bearing children composed of one's own genetic material has served as a catalyst for driving more infertile couples towards surrogacy.
Access to new reproductive technologies can sometimes lead to exploitation. The commoditization of reproductive materials and services has created what is known as the "baby market," and some might say that the highly efficient development of the infertility industry "fits well within America's capitalistic norms." (5) Coupled with America's capitalistic society is the world of the "celebrity," or, Hollywood. In recent years commercial surrogacy has become openly known and used within the entertainment industry, therefore making the practice more publicized in the wake of our country's obsession and need for emulation of celebrity lifestyle. (6) Some examples include Kelsey Grammar, former star of Frazier, actress Sharon Stone, Good Morning America host Joan Lunden, and most recently, Sex and the City star Sarah Jessica Parker. (7) The significance of pop culture's acceptance and use of surrogacy is that it does not always reflect surrogacy arrangements as they exist for the non-celebrity family. While the above named celebrities did not encounter any serious litigation questioning their parental rights to the resulting child, surrogacy arrangements often times fail to manifest in the way they were originally intended, subsequently leaving the families involved distraught and unhappy.
New York law has not been updated to reflect the most current medical abilities in assisted reproductive technology--specifically, surrogacy. Traditional surrogacy is very much a practice of the past and essentially all of the legislative intent surrounding surrogacy law was created to implement safeguards protecting the surrogate who has a legitimate genetic claim to the child. The more common usage of surrogacy, in 2011, is as a gestational carrier. The law does not differentiate between the two (gestational and traditional), however,
[a] narrowing construction of [the statute] that would limit its application to surrogate birth mothers who have contributed their own genetics to the conception of the child would obviate the application of the statutory presumption to cases of true gestational surrogacy ... and avoid any conflict with the fundamental rights of genetic/biological parents.... (8)
This Note claims that there is a fundamental flaw in New York legislation when applied to "compassionate" or gestational surrogacy. (9) New York Domestic Relations Law section 122 declares all surrogate parenting contracts void and unenforceable for public policy reasons. (10) As a result, the woman who gives birth is the presumed legal mother of the child, even if she is not biologically/genetically related to it. Biological/intended fathers who are parties to the surrogacy arrangements can assert parental rights by simply providing proof of the genetic connection. (11) Intended mothers and surrogates have no such rights in declaring or rebutting their parental status. Article Five of the New York Family Court Act only provides a mechanism for paternal declaration. …