Council member John Ray is the author of a bill that would make the District of Columbia the first jurisdiction in the country to regulate the practice of surrogate mothering. The measure, which was the subject of council hearings this week, concerns contracts of a new and controversial nature between a couple who desire a child and a woman who agrees to be artificially inseminated by the husband and to relinquish the child to him and his wife. Usually the surrogate mother carries the baby to term, but in some cases the embryo is transferred to the natural father's spouse.
A number of recent medical advances have been designed to help childless couples. The development of fertility drugs and the perfection of in vitro fertilization have brought great, and sometimes multiple, happiness to many families. These techniques, however, involve only two parents and do not present the complicated medical and legal problems that arise when a third individual is a necessary part of the procedure. No state has yet adopted legislation to regulate surrogate mothering, and none has outlawed it either. But this year, at least 22 jurisdictions have considered facilitating or prohibiting laws. Mr. Ray seeks, in his bill, not necessarily to encourage the practice but to prohibit some of the abuses and commercialization that have arisen around it.
There are plenty of problems for lawmakers to grapple with. What sort of controls should there be over who can enter into this kind of agreement, and what medical and psychological examinations and background checks should be required? What happens if the baby is born with handicaps or a genetic problem traceable to the surrogate mother? Should the natural father and his spouse have to adopt the baby or should it be theirs at birth? Suppose the paternity of the child is questioned by the sperm donor. Should the surrogate mother be paid a fee? How much should it be? (Mr. Ray's bill would allow only the payment of expenses.) Do the husband of the surrogate mother and the wife of the sperm donor have special rights? How should they be protected or relinquished? If the natural father dies before the baby is born, who should be given custody? Can the surrogate mother be forced to give up the child if she changes her mind during pregnancy? Should the child be able to learn the identity of the surrogate mother against her will?
The number, complexity and emotional nature of these questions are ample reason for caution. If we authorize and regulate these arrangements, do we encourage this form of parenting as an alternative to promoting the adoption of children, not only here, but overseas, who need families? The desire for children is a natural one, but the problems inherent in this particula method may be more than parents, or society, bargain for.