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Horton hatches the egg.

A case recently before the courts in Arizona reminds us that, since the time of Abraham and Sarah, one woman agreeing to bear a child for another has engendered problems.[1] For about the last twenty-five years, infertile couples have been able, with the aid of a so-called surrogate mother, to have a child genetically related to the husband, even when die wife is unable to produce ova or carry to term. The practice became news with Baby M, when the New Jersey Supreme Court held surrogacy contracts to be void as against public policy, refused to enforce the contract under which William and Elizabeth Stern claimed the right to be the parents of the girl borne by Mary Beth Whitehead after artificial insemination by Mr. Stern, and awarded visitation privileges to Mrs. Whitehead.[2]

Since that decision, lawmakers have struggled with how to regulate the practice. In six states, statutes (some with criminal or civil penalties) declare all surrogacy contracts void, while another nine states prohibit only contracts involving payment and brokers' fees. Four of the latter--along with Arkansas and Tennessee, which have no prohibitions--provide some form of regulation of the terms and procedures to be followed for a valid contract. In most of the remaining states, courts have had to resolve surrogacy disputes by applying constitutional and common law principles and state adoption and parentage acts.

To give both partners a genetic link to the potential child, fertility centers over the past decade have increasingly turned to so-called gestational surrogacy, in which artificial insemination is replaced by transfer of an embryo produced through in vitro fertilization using ova recovered from the wife and sperm from the husband. Gestational surrogacy complicates the legal picture because it adds a third dimension to the meaning of motherhood. Like adoption, surrogacy separates the role of rearing mother from what the law has called the natural mother, but gestational surrogacy breaks the latter down into the roles of genetic mother and birth mother, leaving two women with biological connections to the child.

The Arizona Case

Arizona, one of the six states that prohibits all surrogacy contracts, explicitly includes contracts "in which a woman agrees to implantation of an embryo not related to that woman" as well as contracts in which she "agrees to conceive a child through natural or artificial insemination and to voluntarily relinquish her parental rights to that child."[3] Although the statute prohibits the formation of such a contract, the state apparently realized that the practice would continue, for the statute also declares that the surrogate is the legal mother of a child born pursuant to such a contract and is entitled to custody. If the surrogate is married, her husband is presumed to be the father of the child, but that presumption may be rebutted by proof that another man--the husband in the infertile couple--is the father.

In 1992, Ronald and Pamela Soos entered into a surrogacy contract with Debra Ballas because Ms. Soos, who had voluntarily relinquished custody of her children from a previous marriage, was unable to conceive due to a partial hysterectomy. Gametes obtained from the Sooses and fertilized in vitro were implanted in Ms. Ballas, who gave birth to triplets in September 1993. Prior to their birth, however, Pamela Soos, who had left her husband to live with another man, filed for divorce and requested that she and Ronald share custody of the children. He responded that under the Arizona statute, Ms. Ballas would be the legal mother of the children and Ms. Soos lacked standing to request custody. After the triplets' birth, the Maricopa County Superior Court issued an order naming Mr. Soos the natural father, and he took custody.

Ms. Soos then filed a paternity action, arguing that Section 25-218(b) of the statute, which declares surrogates the natural mothers of children born under such contracts, is unconstitutional. In a brief order, the trial court concluded that the state lacked a "compelling interest" that would justify, terminating "the substantive due process rights of the genetic mother" in such a summary fashion. Citing "the important role that generations of genetics may play in the determination of who a child is and becomes," the court declared the statute unconstitutional and announced it would hold an evidentiary hearing to determine which woman could "better assume the social and legal responsibilities of motherhood." When the trial court denied Mr. Soos's motion for reconsideration, he persuaded the state Court of Appeals to review the order under a Petition for Special Action.

In upholding the lower court at the end of last year, the appellate tribunal rested its ruling on the equal protection clause of the Fourteenth Amendment. Its basic argument, which also borrows from the lower court's due process holding, is that the state lacks adequate reason to treat biological fathers differently from biological mothers by withholding from the latter an opportunity to rebut the presumption of parentage.

In deciding whether the state's action was permissible, the court had to enter the thicket of the Supreme Court's equal protection jurisprudence, in which challenged classifications must be judged according to one of three tiers of inquiry. Under rational basis analysis, which applies to ordinary categories, the state need merely show some reasonable connection between the categorization and a plausible objective. Classifications involving gender (among others) receive what is called means-ends analysis in which the means chosen must be shown to be narrowly crafted to achieve an important official purpose. Finally, statutes that involve a suspect class (such as divisions by race) or that impinge on a fundamental right (such as marriage and reproduction) get strict scrutiny from the courts to ensure that the state has used means closely tailored to achieving a compelling collective interest. Although the sex-based differentiation embodied in the Arizona statute would seem to can for the intermediate test, the Court of Appeals chose to apply strict scrutiny on the ground that Ms. Soos's claim to be the mother of the triplets implicated a fundamental fight "to custody and control of one's child," which is implicitly protected by the U.S. and Arizona constitutions. Mr. Soos argued that a genetic connection is not enough to create parental rights, as the Supreme Court indicated in Lehr v. Robertson when it refused to sustain a biological father's objection to an adoption proceeding commenced without notice to him, in the absence of a developed parent-child relationship.[4] While it is true that at the time of birth, only a surrogate can have enjoyed a developed relationship with the newborn child because only she has directly participated in gestation, it would be manifestly unfair to apply the Lehr standard to a genetic mother who had promptly attempted to establish a maternal relationship.

On the other hand, the state's decision to treat men and women differently is not necessarily arbitrary since women have a dual role in reproduction not shared with men. At the time of birth, identifying who has a maternal relationship to the newborn child is straightfoward (albeit perhaps incomplete, if the egg has come from another woman). The identity of the child's father, however, is not self-evident, so it is necessary for the state, in furtherance of vital interests in ensuring the welfare of children and achieving order in familial relationships, to designate who is presumed to be the father, as Arizona did by naming the surrogate's husband.

The Court of Appeals decided, however, that if the state permits the sole male with a biological relationship to overcome this presumption by proving his genetic relationship to the child, it must offer a second female with a biological tie to overcome the presumption by proving her genetic relationship. But this reasoning ignores the sexual difference in reproduction and amounts not to an equal protection claim but to a substantive due process ruling that the state must prefer the interests of a woman with a genetic relationship with a child over those of a woman with a gestational relationship. While both women make an essential contribution to the birth, the state should be able to decide--as Dr. Seuss plainly did in Horton Hatches the Egg--that the gestator's contribution makes it reasonable for her to be recognized as a parent in preference to the person who merely provided the egg.

Moreover, the Court of Appeals's ruling would have troubling implications for other reproductive techniques. Imagine that Pamela Soos had been an "egg donor" who was asserting parental rights. Would her genetic relationship be sufficient to allow her to establish herself as mother? Most people would probably answer in the negative. If the reason is the intention of the parties at the time the pregnancy was begun, then a similar rule ought to be applied to surrogacy contracts, as some commentators have indeed argued. But that would mean enforcing the contractual terms to give the wife the maternal role not only in case of gestational surrogacy but also of ordinary surrogacy where the wife lacks a biological relationship, a result that courts across the country have consistently rejected.

If intention does not provide a viable rule, perhaps the reason for denying the assertion of maternity by an egg donor is that the woman who gives birth to the child ought to be recognized as the mother. Such a rule would serve important interests, such as providing a readily identified person to exercise parental rights and responsibilities and propelling the gestating mother to recognize the weighty nature of the decision to bear a child and encourage her to behave maternally toward the developing fetus. Yet, applied to the Soos case, this reasoning would validate, not overturn, the Arizona statute.

Just before this article went to press, the Arizona Supreme Court declined to review the Soos case. It thereby lost the chance to break out of the appellate court's circular reasoning that the state must show a compelling justification for its statutory scheme because Ms. Soos's interests are comparable to those of women in cases in which courts have constitutionally constrained states in terminating parental rights. The lower courts' analyses assumed the point at issue. Instead of providing a process to terminate maternal rights, the statute amounts to a declaration that the relationship between the source of an egg and the child born following fertilization and gestation of that egg is not a mother-child relationship.

The mere fact of a genetic link does not compel the designation of mother Nor does tradition--in which motherhood was attached to giving birth, and the genetic connection to the mother was assumed, even if the genetic connection to the father could not be. Nor does the Fourteenth Amendment--under which state laws have been upheld, though they deny a man the opportunity to establish that he is the father of a child created by his sperm.[5] Deciding which of two women with a biological relationship to a child will be deemed its mother is a policy choice, and Arizona has chosen a means of achieving ends that are important enough, in terms of the welfare of children, to survive an appropriate level of judicial scrutiny.


[1.] Soos v. Superior Court of the State, 179 Ariz. Adv. Rep. 22 (Ct. App. 1994), rev. den. CA-95-0049-PR (Sup. Ct. 7/12/95).

[2.] In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

[3.] Arizona Revised Statutes 25-218 (d).

[4.] Lehr v. Robertson, 463 U.S. 248 (1983).

[5.] Michael H. v. Gerald D., 491 U.S. 110 (1989).

Alexander Morgan Capro is University Professor of Law and Medicine, University of Southern California, Los Angeles.
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Title Annotation:includes overview of a case in Arizona; rights of surrogate mothers
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Sep 1, 1995
Previous Article:My conscience, your money.
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