Surrogate Parenthood
These issues are addressed within the traditional context of adoption and parental rights determinations. This leads to a conservative approach based on the stricter state laws in each area. Although this provides a more generally applicable legal and ethical approach to reproductive technologies, physicians in less restrictive states may choose to be more aggressive in their use of these technologies, consistent with appropriate legal and ethical guidelines. Since legitimacy determinations and adoption laws differ dramatically from state to state, it is important for physicians to ensure that they comply with applicable state laws. Procedures that are legal and acceptable in one state may subject the physician to criminal prosecution and imprisonment in a different state.
Most of the legal disputes involving reproductive technologies have centered on the disputes over traditional parental rights to the resulting child or fertilized ova. Some cases, usually denominated as baby selling, are criminal prosecutions for failing to comply with the applicable adoptions laws. The most highly publicized cases have been custody disputes such as the Baby M case in New Jersey and the Davis divorce case in Tennessee. The Davis case, while involving more sophisticated technology, had a simpler legal solution. The only technology involved in the Baby M case was artificial insemination, but it had a much more complex legal result. In a thoughtful and articulate opinion, the New Jersey court discussed the legal problems posed by so-called surrogacy agreements and, implicitly, the general policy considerations in heterogeneous parentage situations. The following discussion includes quotation from the legal opinions themselves to convey the attitude of the courts as well as the legal rules in the cases. The holdings of these cases are limited to their respective states, but the attitude of the courts are representative of courts in other jurisdictions.