In Washington State a critical step was taken toward legalizing paid surrogacy. While I applaud this most important step, I think that the rules as proposed do not go far enough.

The motivation behind the bill’s passage was that people seeking surrogacy could travel to other states and therefore the only people really hurt were those who could not afford to go out of state. In formalizing this sentiment, and allowing paid surrogacy, certain conditions were placed on the proposed surrogacy agreements; mental and physical health screenings, a requirement that  surrogates must have already given birth to a child and various other conditions.

However, to the extent possible, there should be as much certitude as possible put into the surrogacy protocols. Accordingly, the mental health screenings should be done for both the surrogate and the intended parents at the time the surrogacy agreement is entered into-not after the birth. Similarly, the agreement signed by the surrogate to relinquish any and all rights regarding children born as a result of the surrogacy agreement should be signed before the IVF cycle commences and should be irrevocable.

While legalizing paid surrogacy is an important step, it should be done with an eye toward ensuring that the various parties to the deal-the intended parents and the surrogate are able to proceed with as few “maybes” as possible.

There once was an expectation that when people entered into a contract and made a solemn agreement to live by the terms of a written and signed document, there was a legal obligation, and to some, an added moral obligation to live up to the dictates of that agreement.

Recently, in the realm of surrogacy and genetic donation agreements, the notion of living up to one’s word has been all but thrown out the window. I believe that, at least in some small part, the reason is that our legal system grapples with issues of morality and ethics and becomes hobbled when there is an added philosophical dimension.

When child custody issues arise, agreements between parents are of limited import to the courts because they look to the best interests of the child. Similarly, when issues of adoption agreements arise, the courts get involved with a view to the best interests of the child. These are examples of our legal system’s involvement in moral and ethical issues.

Our country is philosophically divided on the rights of the embryo or fetus, and as a result, the United States is essentially divided on its view regarding abortion which stems from the question of when does life begin? There are those who feel that life begins with birth and some who feel that life begins with conception.

The difficulty with the abortion divide is that from a practical perspective, it plays out in the legal arena but is deeply rooted in religious, philosophical, moral and ethical arenas.

One would think that even if a person believed that life began at conception, he/she would readily agree that genetic material – irrespective of whether it was male or female — that had not yet been successfully been combined with its counterpart would not be considered a life.

Accordingly, from a “life” perspective, an agreement to donate genetic material — sperm or egg — should be enforced. That, however, is far from certain.

Welcome to the intersection of Law Street and Philosophy Avenue, a street corner with a horrible history of multicar accidents.

While it may be clear that some people feel that genetic material is not a “life,” there is some aspect to it that should preclude people from buying and selling genetic material as if it were a commodity like corn or wheat. Apparently, there is no clearly articulated reason other than a certain level of discomfort based on one’s philosophy, morality or ethics. To somehow synthesize these divergent views, many jurisdictions do not allow the sale of genetic material, feeling more comfortable allowing compensation for the effort or pain necessary in the procurement and development of the genetic material. From the point of view of the genetic donor, it is not a significant distinction as long as he/she gets paid. Obviously, if the fees are exorbitant, there are those who argue that it transcends the effort and procurement expense but seems to be more like a sale and, therefore, is inappropriate, reprehensible or downright illegal.

Other jurisdictions outlaw compensation for genetic material.

All of this becomes interesting when we enter the realm of surrogacy.

In setting up Proactive Family Solutions and in attempting to set forth the various iterations of surrogacy, we have found it very useful to deal with the following explanatory framework.

It is self-evident that the birth of a child results from three contributing components – male genetics, female genetics and a womb. While there are three ingredients, the list of participants in the process (or the number of actors – as in people who act) ranges from two to five. If a man and a woman have a child together as the intended parents (IPs) and the male utilizes his own genetic material and the female uses both her genetic material and her own womb, this case has a cast of two because the intended parents are the same as the genetic donors and womb participant.

If the intended parents each supply their own genetic material but use a surrogate, there would be a cast of three. If the intended parents use the genetic material of the male intended parent and use an egg donor as well as a surrogate, there would be a cast of four. Similarly, if the genetic material of the intended female parent, donated male genetic material and a surrogate were used it would once again have a cast of four.

The numbers will also be dependent on the IP being one or two.

A cast of five is where IPs use two genetic donors and a separate surrogate. At Proactive Family Solutions, we have dealt with virtually every permutation except for a cast of five.

Apparently, the various jurisdictions and courts are all over the place regarding the rights of genetic donors whose contribution is lifeless genetic material and surrogates whose only contribution is the womb. They may differ when it is the intended parents who are the people that both facilitated the process for obtaining the child, and in most cases, furnished at least some of the genetic material, as well as obtained everyone’s agreement that they were to be the intended parents.

A New Jersey court recently conferred parental status to a surrogate who has no genetic link with the children and who agreed to have no parental rights.

On the other hand, the United States Federal Government, with regard to granting citizenship to children born abroad, will only look to the genetic father or mother and will not confer citizenship based on the citizenship of the surrogate.

Other courts have conferred rights to genetic donors despite the fact that they were not the IPs and agreed to relinquish any rights regarding the future children born utilizing their genetic material.

It is my belief that if the courts want to start making a retroactive analysis after a child is born as to the rights of a person who donated genetic material and/or who made a deal where, by any stretch of the imagination, that which he/she donated was not “alive,” they should just outlaw surrogacy. In these cases, people should be allowed to go to those jurisdictions that permit the building of families and either allow or, in fact, encourage surrogacy like India.

The pain and uncertainty that flow from Monday morning quarterbacking is unnecessary especially when dictated by people who have not gone through the rigors and challenges of infertility or whose orientation or family structure is such that they are not able to have cast of two children.?

The story is pretty straightforward – The implications are far from

One of the partners in a gay union asks his sister to be a gestational surrogate using the egg of an anonymous donor and the sperm of his partner. Twins are born and ……….

The surrogate seeks parental rights despite the fact that she has no genetic link with the twins – and she gets it.

What is left to see is if she gets primary custody and the amount of child support she will ultimately receive.

Interestingly, the court did not see any difference (in the parental rights of the surrogate) if there is a genetic link or not. This emotion is generally reserved for the level of love and caring of either intended parents or adoptive parents, not for people who have decided to and committed to carry a baby for others with the express understanding that will relinquish any rights they may have regarding the children.

In fact, the court’s decision, which is appended below, in equating gestational (no genetic link) with traditional surrogacy (genetic link) created new fangled parental rights for the non genetic surrogate.

The effect of this decision is far reaching.

Prior conventional wisdom of New Jersey law was that based on the famous Baby M case, traditional surrogacy (in which the surrogate was also the egg donor and there was a genetic link with the child) was not permissible, and that even gestational surrogacy in which the ova (egg) is either supplied by the intended parent or by an egg donor (leaving the surrogate without any genetic link to the child) would only be acceptable if there was no compensation. In fact, the lack of compensation, from a practical perspective essentially rendered the only possible surrogacy arrangements that would be condoned in New Jersey to be those for which the surrogate was performing this service of carrying the child for altruistic reasons – generally a very close friend or a family relation. Clearly this decision does away with surrogacy in New Jersey.

The effect of embarking on surrogacy without a very conservative approach to the law, and in the case of foreign surrogacy, embarking on the journey without both a very conservative approach to surrogacy law and immigration law can be catastrophic.

The pain in this case begins shortly after twins in question were born on October 4, 2006, when custody issues and questions of parental rights first came before the court. The decision was issued more than three years after the children were born. This is not a case that only deals with potential future rights of and between a surrogate, the sperm donor and his partner, but inherent in this case are three years of visitation, custody and child support battles – issues that one would normally find in a hotly contested divorce.

This case is far from over because all the court has really done is establish that the surrogate, despite the fact that she has no genetic link with the child, has been granted parental rights – and that the lives of intended parents who were hoping to live happily ever after, will never be the same. What remains to be seen is what those parental court created parental rights will yield vis-à-vis custody and support in the future.

The couple entering into this arrangement, might well have proceeded on what was conventional wisdom at that time – that gestational surrogacy without payment was permissible in New Jersey – despite the fact that relating to surrogacy, there had been no affirmative ruling conferring parental rights on gay couples.

The pain and the uncertainty that the couple face in this case, not to mention their future battle is heartbreaking.

One would hope that people seeking to build a family (who are in positions because of which they have to resort to surrogacy) would at least be able to proceed with the peace of mind that if they finally achieve their dream and a child was born would in fact have the familial setting that they both hoped for, anticipated and agreed to. There is too much uncertainty in the reproductive process to allow for unnecessary uncertainty once children are born of surrogacy.

The lessons to be learned from this tragedy are, the importance choosing a venue that is surrogacy friendly, drawing proper documents, and in the case of foreign surrogacy covering all of the immigration issues in advance.

In the recently decided New Jersey surrogacy case, the judge made a ruling that inherently found that the woman carrying the child was the parent irrespective of not having any genetic link.

In years past, in the psychological world and particularly within the realm of adoption the question of nature vs. nurture reigned supreme. That quandary related to what the determining factors were in the psychological development of a person. The debate has endured and despite many studies the answer is far from clear.

In the realm of egg donation and surrogacy a new variation of the nature vs. nurture debate has emerged. However, the question now is not what the determining factor will be in the psychological development of the child, but rather, who is the real “mother”.

Recently, there was an article in the Jerusalem Post where Rabbi’s grappled with issues relating to Jewish egg donors and non-Jewish egg donors. The quandary they face is that to the extent Israeli law does not allow egg donation except for the use of extra embryos that are part of a couple’s IVF process, the domestic Israeli availability of Jewish egg donors is practically nil.

Apparently, this forced many Israeli’s to go abroad and avail themselves of non-Jewish egg donors.

Now for the problem – in Orthodox Jewish law, the religion of the child follows the religion of the “mother” and in the case of egg donation, the general consensus of Orthodox Rabbi’s seems to be – that when faced with egg donation the religion of the child will follow the religion of the egg donor as opposed to the woman that carried the baby. Simply stated, their religious belief is that the egg donor is the mother of the child.

From a scientific point of view, the child will be a combination of the genetics of the sperm donor and egg donor.

When often questioned as to the influence that a surrogate has on the child the best explanation I can give is that the surrogate is like a hotel for the embryo. When you check into a hotel, obviously the environment of the hotel will have something to do with your experience. However, in terms of health, so long as there is no disease in the air or similar situations, and your nutritional needs are met, you will in all likelihood leave the hotel in the same basic health as when you arrived.

To believe that the makeup of a child will be determined by the surrogate makes about as much sense to me as someone checking into a Hilton hotel with the expectation that they will emerge looking like Paris Hilton.

The contrast between the court in New Jersey, on the one hand, and the analysis of the Rabbi’s regarding the apparent need for Jewish egg donors to maintain the continuity of the religious line without needing to resort to conversion, on the other hand, is fascinating.

While it seems clear that the makeup of the child will be determined by the egg donor as opposed to the surrogate I think that the “Who is the Mother” controversy will endure the same as “Nature vs. Nurture” — for many years to come without resolution.

Irrespective of the lack of an answer to this question, in our experience we have found that many intended parents of the Jewish faith feel a strong need to use a Jewish egg donor. We are so happy that many egg donors of the Jewish faith are willing to help their co-religionists.

Similarly, Chinese or other Asian intended parents feel a bond with their particular country of origin and often times, Intended Parents of Chinese extraction insist on locating Chinese egg donors – an emotion we understand and are similarly happy to be able to accommodate.

However there is a dramatic difference between the individual needs of an Intended Parent or Intended Parents and the decision of a court that rules who the mother is and has such far reaching ramifications.