Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P47 potx

One legalized the practice of surrogate motherhood and made surrogacy contracts enforceable in court; the other barred the enforcement of contracts in which a surrogate mother is paid to

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restrict smoking in public places, and to place warning labels on cigarette packages Since the

1964 report, U.S smoking rates have declined from 46 percent to 25 percent Currently, Surgeon General warning labels appear on both alcohol and tobacco products

Other surgeons general have sparked public controversy as well In the 1980s, Dr C Everett

Koop’s advocacy of the use of condoms

to reduce the spread of HIV and AIDS angered religious groups and others

Dr M Joycelyn Elders, who was sworn in as surgeon general in September 1993, was forced to resign in December 1994 for pro-moting masturbation for young people as a way to avoid teenage pregnancy and sexually

The Surgeon General and

a Smoke-Free Future

In 2010, smokers risk more than their

health Bans and restrictions on

smoking have swept through nearly every

walk of public life, driving smokers out

of offices, restaurants, and public

build-ings Some firms even limit hiring to

nonsmokers Since the mid-1960s, the

antismoking movement has changed

social attitudes and laws that govern this

age-old habit Leading this change were

numerous studies warning that exposure

to secondhand smoke kills thousands of

U.S citizens each year Increasingly

provoked by the antismoking

clamp-down, smokers’ rights groups and the

U.S tobacco industry protest what they

see as discriminatory treatment

Laws against smoking date back to

the late nineteenth century, when 14

states prohibited cigarettes

Contempo-rary antismoking efforts began with a

U.S surgeon general’s report in 1964

endorsing medical findings that smoking

causes cancer Congress required

warn-ing labels on tobacco products in 1965

In 1967, the FEDERAL COMMUNICATIONS

COMMISSION(FCC) mandated that

broad-casters carry antismoking messages in

proportion to tobacco advertisements

This ruling led to the disappearance of

tobacco ads from television and radio

In the 1970s, public concern shifted

A long-standing awareness of smokers’

personal health risks was surmounted

by growing fears about hazards to the

public in general Increased attention to

secondhand smoke, or environmental

tobacco smoke (ETS), fueled this

signifi-cant change A 1972 report The Health

Consequences of Smoking: A Report of the Surgeon General contained a chapter on ETS, gave antismoking activists a power-ful new weapon Restrictions on public smoking began to appear In 1973, the Civil Aeronautics Board required airlines

to provide separate smoking and non-smoking sections States passed clean indoor air acts to protect the health of nonsmokers, beginning with Arizona in

1973 (Ariz Rev Stat Ann § 36-601.01)

The U.S tobacco industry lobbied strongly against such measures and defeated a 1977 California bill, but momentum was with the antismoking movement By the early 1990s, all but five states had enacted some form of state antismoking law

The next victory for nonsmokers came in a landmark 1976 court case that upheld a worker’s right to a smoke-free work environment (Shimp v New Jersey Bell Telephone, 145 N.J Super 516, 368

A 2d 408[N.J 1976]) Donna Shimp, an office worker, successfully sued her employer after complaining that an allergy to smoke caused her physical suffering Her employer installed an exhaust fan, but when this proved ineffective, Shimp was asked to move to

a different work site; the move amounted

to a demotion and pay cut In Shimp, the court ruled that workers who are espe-cially sensitive to smoke must not be subjected to it in the course of perform-ing their job The court’s opinion cited clear and overwhelming evidence that cigarette smoke poses general health hazards by contaminating the air

A turning point came in 1986 when Surgeon General C EVERETT KOOP

issued a report titled The Health Effects

of Involuntary Smoking The report concluded that ETS causes lung cancer and other diseases in nonsmokers

It carried a dramatic warning: separating smokers and nonsmokers within the same airspace might reduce—but could not eliminate—the hazards of breathing ETS Koop’s report coin-cided with a study by the National Academy of Sciences that reached similar conclusions Although the to-bacco industry disputed these findings, the reports galvanized the antismoking movement

The first effect on federal legislation was seen in December 1987, when Congress enacted an amendment to the Federal Aviation Act of 1958 (§404[d] [1][A]) that placed a two-year ban on smoking on all domestic airline flights of less than two hours’ duration

Debate over the amendment was fierce Supporters of the ban included flight attendants and a coalition of health groups, including the American Cancer Society Their argument centered

on the perils of ETS The airline industry noted that smoking on airplanes created many problems, ranging from damage

to aircraft interiors to the difficulty

of purifying recirculated cabin air Opponents, particularly members from tobacco-producing states, argued that the ban would depress tobacco prices They also said it would be difficult to enforce But enforcement proved

448 SURGEON GENERAL

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transmitted diseases In 2006 Surgeon General

Dr Richard Carmona released a scathing report

on the dangers of second-hand smoke, which

urged the adoption of indoor smoking bans

Carmona later claimed that the administration

of GEORGE W BUSH, who appointed him, had

tried to pressure him to water down and delay

the report

FURTHER READINGS Kluger, Richard 1996 Ashes to Ashes New York: Knopf.

Office of the U.S Surgeon General Website Available online

at www.surgeongeneral.gov (accessed December 17, 2009).

CROSS REFERENCE Health Care Law.

effective because Congress granted the

FEDERAL AVIATION ADMINISTRATION (FAA)

the power to fine violators without resort

to judicial intervention After the

two-year ban expired, Congress passed a law

permanently banning smoking on all

domestic airline flights under six hours’

duration (103 Stat 1098[49 U.S.C.A §

1374(d) app.]), which went into effect

February 25, 1990

Surgeon General Koop’s report also

sparked a surge of state legislation In

June 1989, New Jersey became the third

state in the nation, after Kansas and

Utah, to ban smoking in buildings

owned by boards of education The

New Jersey law, New Jersey Statutes

Annotated, section 26.3D-17(b) (West

1990 Supp.), was aimed at preventing

teenagers from picking up the smoking

habit Many other states passed

anti-smoking laws as well, including Virginia,

a tobacco industry stronghold Virginia’s

law, Code of Virginia Annotated (section

15.1-291.2 [West 1990 Supp.]),

re-stricted smoking in public places such

as common areas of schools, government

buildings, and restaurants A more

com-prehensive New York law, New York

Public Health Law I (sections 1399-n

to 1399-x [McKinney 1990]), took

effect January 1, 1990, and targeted

most public areas and workplaces The

law permitted smoking at work in

limited areas as long as all present agree

to allow it

Federal policy making followed

this trend In 1987, theGENERAL SERVICES

ADMINISTRATION (GSA) banned smoking

in its 6,900 federal buildings, and

Amtrak, the federal passenger rail

line, imposed new limits on smoking

in its trains, effective April 1, 1990

Also in 1990, the INTERSTATE COMMERCE

COMMISSIONbanned smoking on interstate

buses

Private bans on smoking also in-creased Some companies, such as Turner Broadcasting, in Atlanta, Georgia, and Northern Life Insurance, in Seattle, Washington, refused to hire smokers

Many smokers view laws dictating when and where they may smoke as an

INFRINGEMENT of their personal rights

However, a federal appeals court in

1987 rejected the argument that the U.S Constitution protects the right to smoke In Grusendorf v City of Oklahoma (816 F.2d 539 [10th Cir 1987]), the court upheld a city fire department’s dismissal of a trainee for smoking during

a lunch break in violation of a policy prohibiting smoking both on and off the job The ruling said this limit on individual liberty was justified by a rational purpose: namely, to protect the health of employees in an industry that demands that its workers be in good physical condition

Supported by civil libertarians and tobacco industryLOBBYING, smokers have had some success seeking laws designed

to protect them from being fired or passed over for job promotions By 2009,

30 states and the District of Columbia had passed smokers’ rights legislation that prohibited employers from prohibit-ing employees from smokprohibit-ing while off duty

On January 7, 1993, the ENVIRONMEN-TAL PROTECTION AGENCY (EPA) handed antismoking forces further support in a report on secondhand smoke (Respira-tory Health Effects of Passive Smoking:

Lung Cancer and Other Disorders [EPA Report EPA/600/6-90/006F]) Based on several years of research, the report designated ETS as a potent carcinogen that kills about 3,000 U.S citizens annually and causes hundreds of thou-sands of respiratory illnesses in children

Strikingly, the agency placed ETS in the same risk category as radon and asbestos Reaction to the EPA risk assessment was swift and dramatic In the six months that followed, approximately

145 local governments banned smoking

in public buildings Los Angeles passed far-reaching legislation that banned smoking in most restaurants Effective August 2, 1993, the law applied to some 7,000 indoor restaurants, permitting smoking only in outdoor seating areas Violators face citations of up to $250, and restaurant owners who permit in-door smoking face jail sentences of up to six months and $1,000 fines An effort to repeal the controversial law was soon underway

Although the U.S Surgeon General’s Office did not reach its hoped-for goal of

a smoke-free United States by 2000, antismoking laws have continued to proliferate As of 2009, according to the American Nonsmokers’ Rights Founda-tion, 71 percent of the U.S population lives under a ban on smoking in

“workplaces, and/or restaurants, and/or bars, by either a state, commonwealth, or local law.” However, only 41 percent of the population lives in places where smoking is banned in workplaces, bars, and restaurants Only 13 states do not have some type of law prohibiting smoking

FURTHER READINGS Reducing Tobacco Use: A Report of the Surgeon General 2000 Washington, D.C.: Dept.

of Health and Human Services, U.S Public Health Service.

Parker-Pope, Tara 2001 Cigarettes: Anatomy

of an Industry from Seed to Smoke New York: New Press.

CROSS REFERENCES Tobacco; Tobacco Institute.

SURGEON GENERAL 449

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SURPLUSAGE Extraneous matter or language; something that is impertinent, superfluous, redundant, or unnecessary

In pleadings, surplusage refers to allegations that are not relevant to the CAUSE OF ACTION Under the Federal Rules of CIVIL PROCEDURE, upon a motion, a court can strike from the pleadings any surplusage, such as an insufficient defense or an immaterial matter Under Rule 7(d) of the Federal Rules ofCRIMINAL PROCEDURE,

a DEFENDANT in a federal criminal matter may move to strike surplusage in anINDICTMENT

SURPRISE

An unexpected action, sudden confusion, or an unanticipated event

As a ground for a new trial, surprise means the condition in which a party to a lawsuit is unexpectedly placed Lack of preparation for such a situation can indeed prejudice the party’s case The situation must be one that the party could not reasonably have anticipated and that could not be guarded against or prevented

Surprise can also be grounds for exclusion of evidence

When a party is taken by surprise by the testimony of his or her own witness, the party may be permitted to discredit the witness by showing that the witness made prior contradic-tory or inconsistent statements In the case of a witness for whose testimony a party is not (and cannot be expected to be) prepared, a court might grant a continuance, out of fairness to all parties, in order to allow DEPOSITION of that person before proceeding further Nickey v

Brown, 7 Ohio App.3d 32, 454 N.E.2d 177

SURREBUTTER

In COMMON-LAW PLEADING, the plaintiff’s factual reply to the defendant’s rebutter or answer

Surrebutter is governed by the same rules as replication and is no longer required under modern practice andPLEADING

SURREJOINDER

In the second stage ofCOMMON-LAW PLEADING, the plaintiff’s answer to the defendant’s rejoinder

SURRENDER

To give up, return, or yield

The word surrender presupposes the posses-sion or ownership of the thing that is to be returned or given up It indicates a transfer of title as well as possession, but it does not express

or in any way suggest the transaction of a sale and delivery Instead, it involves yielding or delivering in response to a demand A surrender may be compelled or it may be voluntary

In landlord-tenant law, surrender occurs when a tenant agrees to return the leased premises to the landlord before the expiration

of the lease and the landlord agrees to accept the return of the premises In this respect a surrender differs from ABANDONMENT, which is simply a unilateral act on the part of the tenant

In contrast, a surrender arises through a mutual agreement between the lessor and lessee Surrender is used in many areas of SUBSTAN-TIVE LAW For example, inCRIMINAL LAWit refers

to a suspect’s giving up to the police In insurance law the“cash surrender” value is the amount of money a person will receive when he elects to end a policy and take the proceeds allocated under the insurance contract

SURROGATE COURT

A tribunal in some states with SUBJECT MATTER JURISDICTIONover actions and proceedings involv-ing, among other things, the probate of wills, affairs of decedents, and the guardianship of the property ofINFANTS

SURROGATE MOTHERHOOD Surrogate motherhood is a relationship in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child; it is also called mothering by proxy

InSURROGATE MOTHERHOOD, one woman acts

as a surrogate, or replacement, mother for another woman, sometimes called the intended mother, who either cannot produce fertile eggs or cannot carry a pregnancy through to birth, or term

Surrogate mothering can be accomplished

in a number of ways Most often, the husband’s sperm is implanted in the surrogate by a procedure called ARTIFICIAL INSEMINATION In this case, the surrogate mother is both the genetic mother and the birth, or gestational mother, of the child This method of surrogacy is some-times called traditional surrogacy

450 SURPLUSAGE

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Less often, when the intended mother can

produce fertile eggs but cannot carry a child to

birth, the intended mother’s egg is removed,

combined with the husband’s or another man’s

sperm in a process called in vitro fertilization

(first performed in the late 1970s), and

implanted in the surrogate mother This

method is called gestational surrogacy

Surrogacy arrangements are categorized as

either commercial or altruistic In commercial

surrogacy, the surrogate is paid a fee plus any

expenses incurred in her pregnancy In altruistic

surrogacy, the surrogate is paid only for

expenses incurred or is not paid at all In

2008, it was estimated that surrogate mothers in

the United States were paid between $20,000

and $30,000 for their services

The first recognized surrogate mother

arrangement was made in 1976 Between 1976

and 1988, roughly 600 children were born in the

United States to surrogate mothers Since the

late 1980s, surrogacy has been more common,

yet reliable statistics about surrogate births in

the United States are hard to find

Organiza-tions that provide surrogate services estimated

there were about 1,000 surrogate births in the

United States in 2007 However, the Society for

Assisted Reproductive Technology (SART)

counted about 260 in 2006, a 30 percent

increase over three years Experts believe that

number is too low because many clinics do not

report births to SART, and private agreements

made without a clinic or agency are not

reported Because a number of countries ban

surrogate motherhood, international couples

hire U.S women to perform this service

The issue of surrogate motherhood came to

national attention during the 1980s, with the

Baby M case In 1984 a New Jersey couple,

William Stern and Elizabeth Stern, contracted

to pay Mary Beth Whitehead $10,000 to be

artificially inseminated with William Stern’s

sperm and carry the resulting child to term

Whitehead decided to keep the child after it was

born, refused to receive the $10,000 payment,

and fled to Florida In July 1985 the police

arrested Whitehead and returned the child to

the Sterns

In 1988, the New Jersey Supreme Court

ruled in In re Baby M (109 N.J 396, 537 A.2d

1227) that the contract was unenforceable, but

the court allowed the Sterns to retain physical

CUSTODY of the child The court also restored some of Whitehead’s parental rights, including visitation rights, and voided theADOPTIONby the Sterns Most importantly, the decision voided all surrogacy contracts on the ground that they conflict with state PUBLIC POLICY However, the court still permitted voluntary surrogacy arrangements

The Baby M decision inspired some state legislatures to pass laws regarding surrogate motherhood Most of those laws prohibit or strictly limit surrogacy arrangements As of

2009, 12 states refused to recognize surrogacy contracts and a few states made it a crime to arrange surrogacy contracts for money

In 1989 theAMERICAN BAR ASSOCIATION(ABA) drafted two alternative model laws involving surrogate motherhood These laws were not binding but were intended to guide states as they formulated their own laws One legalized the practice of surrogate motherhood and made surrogacy contracts enforceable in court; the other barred the enforcement of contracts in which a surrogate mother is paid to have a child and then give up any claim to the child

Under either ABA model, states legalizing surrogate contracts limit them to agreements between a surrogate mother and a married couple A genetic link must be established between the couple and the child, by the husband’s supplying sperm or the wife’s contributing an egg, or both To be valid, the contract must be approved by a judge before conception takes place, and it must be accom-panied by proof that the wife is unable to bear a child The surrogate mother has the right to

Mark and Crispina Calvert, holding a picture of their son, won a landmark 1993 case in which the California Supreme Court ruled on the legality of surrogacy contracts in California.

AP IMAGES SURROGATE MOTHERHOOD 451

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A sample surrogate

parenting agreement.

SURROGATE PARENTING AGREEMENT

This Agreement is made on _ (Date), by and between ,

a married woman (Referred to as Surrogate), _ , her husband (Referred to as Surrogate's Husband), who both reside at _ (Address) and , (Referred to as Natural Father), who resides at (Address).

RECITALS This Agreement is made with reference to the following facts:

A Natural Father is a married man over the age of ( ) (Eighteen (18) or Applicable Age Required by Statute) years who desires to enter into this Agreement, the sole purpose of which is to enable the Natural Father and his wife, who cannot conceive, to have a child who is biologically related to the Natural Father.

B Surrogate and Surrogate’s Husband are over the age of ( ) (Eighteen (18)) years and both desire and are willing to enter into this Agreement subject to the terms and conditions contained in this Agreement NOW THEREFORE, in consideration of the mutual promises, representations, terms and conditions contained in this Agreement, the parties agree as follows: SECTION ONE

Surrogate represents that she is capable of conceiving children Surrogate understands and agrees that in the best interests of the child she will not form or attempt to form a parent-child relationship with any child or children she may conceive, carry to term, and give birth

to, pursuant to this Agreement.

SECTION TWO Surrogate and Surrogate's Husband have been married since _ (Date) Surrogate's Husband agrees with the purposes and provisions of this Agreement and acknowledges that his wife, Surrogate, shall be artificially inseminated pursuant to the provisions of this Agreement Surrogate's Husband agrees that in the best interests of the child he will not form or attempt to form a parent-child relationship with any child or children Surrogate may conceive by artificial insemination, as described in this agreement, and agrees to freely and readily surrender immediate custody of the child to Natural Father.

Surrogate's Husband further agrees to terminate his parental rights to such child Surrogate's Husband acknowledges he will do all acts necessary to rebut the presumption of paternity of any offspring conceived and born pursuant to this Agreement as provided by law, including blood testing and/or HLA testing.

SECTION THREE Surrogate shall be artificially inseminated with the semen of Natural Father by a physician Surrogate, upon becoming pregnant, agrees she will carry the embryo (or fetus) until delivery Surrogate and Surrogate's Husband agree that they will cooperate with any background investigation into Surrogate's medical, family, and personal history and warrants the information to be accurate to the best of their knowledge and belief Surrogate and Surrogate's Husband agree to surrender custody of the child to Natural Father, to institute and cooperate in proceedings to terminate their respective parental rights to such child, and to sign any and all necessary affidavits, documents, and papers in order to further the intent and purposes of this Agreement Surrogate and Surrogate's Husband understand that the child is being conceived for the sole purpose of giving such child to Natural Father, its natural and biological father Surrogate and Surrogate's Husband agree to sign all necessary affidavits and other documents, prior to and subsequent to the birth of the child, and to voluntarily participate in any paternity proceedings necessary for the Natural Father's name to be entered on the child's birth certificate as the natural or biological father.

SECTION FOUR The consideration for this Agreement, which is compensation for services and expenses, and should in no way be construed as a fee for the termination of parental rights or as payment in exchange for a consent to surrender the child for adoption, in addition to other provisions contained in this Agreement, shall be as follows:

1 ($ ) dollars shall be paid to Surrogate, for services and expenses in carrying out Surrogate's obligations under this Agreement, immediately upon surrender to Natural Father custody of the child born pursuant to the provisions of this Agreement.

2 The consideration to be paid to Surrogate shall be deposited with (Referred to as Custodian), the representative of Natural Father, at the time of the signing of this Agreement and shall be held in escrow until completion of the duties and obligations of Surrogate as provided for in this Agreement.

3 Natural Father shall pay the expenses incurred by Surrogate, pursuant to her pregnancy, which are specifically defined as follows: (a) All medical, hospitalization, pharmaceutical, laboratory, and therapy expenses, incurred as a result of Surrogate's pregnancy, not covered or allowed by her present health and major medical insurance, including all extraordinary medical expenses and all reasonable expenses for treatment of any emotional, mental, or other problems related to such pregnancy In no event, however, shall any such expenses be paid or reimbursed after a period of _ ( _) months has elapsed since the date

Surrogate Parenting Agreement

[continued]

452 SURROGATE MOTHERHOOD

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of the termination of the pregnancy This agreement specifically excludes expenses for lost wages or other non-itemized

incidentals related to such pregnancy.

(b) Natural Father shall not be responsible for any medical, hospitalization, pharmaceutical, laboratory, or therapy expenses

occurring ( _) months after the birth of the child, unless the medical problem incident to such

expenses was known and treated by a physician prior to the expiration of the ( _) month period and written

notice advising of this treatment is given to Custodian, as representative of Natural Father, by certified mail, return receipt

requested.

(c) Natural Father shall be responsible for the total cost of all paternity testing Such paternity testing may, at the option of Natural

Father, be required prior to release of the Surrogate fee from escrow If Natural Father is conclusively determined not to be the

biological father of the child as a result of an HLA test, this Agreement will be deemed breached and Surrogate shall not be entitled

to any fee, and Natural Father shall be entitled to reimbursement of all medical and related expenses from Surrogate and

Surrogate's Husband.

(d) Natural Father shall be responsible for Surrogate's reasonable travel expenses incurred at the request of Natural Father

pursuant to this Agreement.

SECTION FIVE

Surrogate and Surrogate's Husband are aware, understand, and agree to assume all risks, including the risk of death, which are incidental

to conception, pregnancy, childbirth, and includes, but is not limited to, complications subsequent to such childbirth.

SECTION SIX

Surrogate and Surrogate's Husband, hereby agree to undergo psychiatric evaluation by _ ,

a psychiatrist, as designated by Natural Father Natural Father shall pay for the cost of such psychiatric evaluation Prior to their evaluations,

Surrogate and Surrogate's Husband shall sign a medical release permitting dissemination to Custodian or Natural Father and his wife

copies of the report prepared as a result of such psychiatric evaluations.

SECTION SEVEN

Surrogate and Surrogate's Husband hereby agree it is the exclusive and sole right of Natural Father to name such child born pursuant to

this agreement.

SECTION EIGHT

Child, as referred to in this agreement, shall include all children born simultaneously pursuant to the inseminations contemplated in this

Agreement.

SECTION NINE

In the event of the death of Natural Father prior or subsequent to the birth of such child, it is understood and agreed by Surrogate and

Surrogate's Husband, the child will be placed in the custody of Natural Father's wife.

SECTION TEN

In the event the child is miscarried prior to the ( ) (Fifth or as the Case May Be) month of pregnancy, no compensation, as

enumerated in Section Four, Paragraph 1, shall be paid to Surrogate However, the expenses enumerated in Section Four, Paragraph 3 shall

be paid or reimbursed to Surrogate In the event the child is miscarried, dies, or is stillborn subsequent to the ( _)

(Fourth or as the Case May Be) month of pregnancy the Surrogate shall receive ($ ) dollars in lieu

of the compensation enumerated in Section Four, Paragraph 1 In the event of a miscarriage or stillbirth as described above, this

agreement shall terminate, and neither Surrogate nor Natural Father shall be under any further obligation under this Agreement.

SECTION ELEVEN

Surrogate and Natural Father shall each undergo complete physical and genetic examination and evaluation, under the direction and

supervision of a licensed physician, to determine whether the physical health and well-being of each is satisfactory Such physical

examination shall include testing for AIDS and venereal diseases including, but not limited to, syphilis, herpes, and gonorrhea Such AIDS

and venereal disease testing shall be done prior to, but not limited to, each series of inseminations.

SECTION TWELVE

In the event that pregnancy has not occurred within a reasonable time in the opinion of Natural Father, this Agreement shall terminate by

written notice to Surrogate, at the residence provided to the Custodian by the Surrogate (from Custodian, as representative of the Natural

Father).

SECTION THIRTEEN

Surrogate agrees she will not abort the child once conceived except if, in the professional medical opinion of the inseminating physician,

such action is necessary for the physical health of Surrogate or the child has been determined by such physician to be physiologically

abnormal Surrogate further agrees, at the request of such physician, to undergo amniocentesis or similar tests to detect genetic and

congenital defects In the event such test reveals the fetus is genetically or congenitally abnormal, Surrogate agrees to abort the fetus on

[continued]

A sample surrogate parenting agreement (continued) SURROGATE MOTHERHOOD 453

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A sample surrogate

parenting agreement

(continued).

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE, A

PART OF CENGAGE

LEARNING.

demand of Natural Father The fee paid to Surrogate in this circumstance will be in accordance to Section Ten If Surrogate refuses to abort the fetus upon demand of Natural Father, Natural Father's obligations, as stated in this Agreement, shall cease except as to obligations of paternity imposed by statute.

Natural Father recognizes that some genetic and congenital abnormalities may not be detected by amniocentesis or other tests, and, therefore, if proven to be the biological father, assumes the legal responsibility for any child who may possess genetic or congenital abnormalities.

SECTION FOURTEEN Surrogate agrees to adhere to all medical instructions given her by the inseminating physician as well as her independent obstetrician Surrogate also agrees not to smoke cigarettes, drink alcoholic beverages, use illegal drugs, or take prescription or nonprescription medications without written consent from her physician Surrogate agrees to follow a prenatal medical examination schedule to consist of

no fewer visits than: one (1) visit per month during the first _ ( ) (Seven or as the Case May Be) months

of pregnancy, two (2) visits (each to occur at two-week intervals) during the _ ( _) and ( _) (Eighth and Ninth or as the Case May Be) months of pregnancy.

SECTION FIFTEEN Prior to signing this Agreement, each party has been given the opportunity to consult an attorney of his or her own choice concerning the terms and legal significance of the agreement and the effect it has upon any and all interests of the parties to this Agreement.

SECTION SIXTEEN Each party acknowledges that he or she has carefully read and understands every word in this Agreement, realizes its legal effect, and is signing this agreement freely and voluntarily None of the parties has any reason to believe the other party or parties did not understand fully the terms and effects of this Agreement, or that the other parties did not freely and voluntarily execute this Agreement.

SECTION SEVENTEEN

In the event any of the provisions of this Agreement are deemed to be invalid or unenforceable, such invalid or unenforceable provision may be severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the reminder of this Agreement If such provision shall be deemed invalid due to its scope or breadth, then such provision shall be deemed valid to the extent

of the scope or breadth permitted by law.

SECTION EIGHTEEN This Agreement shall be executed in three copies, each of which shall be deemed an original One copy shall be given to Custodian, another copy to Natural Father, and the third copy to Surrogate.

SECTION NINETEEN This instrument embodies the entire Agreement of the parties with respect to the subject matter of surrogate parenting There are no promises, terms, conditions, or obligations other than those contained in this Agreement, and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, among the parties.

SECTION TWENTY This Agreement cannot be modified except by written agreement signed by all the original parties.

SECTION TWENTY-ONE This Agreement has been drafted, negotiated, and executed and shall be governed by, and enforced in accordance with, the laws of the State of .

_

Signature of Surrogate Mother Date _

Signature of Surrogate's Husband Date _

Warning:

These forms are provided AS IS They may not be any good Even if they are good in one jurisdiction, they may not work in another And the facts of your situation may make these forms inappropriate for you They are for informational purposes only, and you should consult an attorney before using them

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Does Surrogacy Involve Making Families or Selling Babies?

Medical science continues to devise

new procedures and treatments

that test the boundaries of law and ethics

One such result is modern surrogate

motherhood, which was made possible

by ARTIFICIAL INSEMINATION and in vitro

fertilization

Surrogate motherhood has both

advocates and detractors, each with

strong arguments to support their

posi-tions A number of important questions

lie at the heart of the debate over the

ethics and legality of surrogacy: Does

surrogacy necessarily involve the

exploi-tation of the woman serving as the

surrogate mother or turn her into

commodity? What rights does the

surro-gate mother have? Is surrogacy

equiva-lent to baby selling? Should brokers or

third parties be allowed to make a profit

from surrogacy arrangements?

The Case against Surrogacy Nearly

all opponents of surrogacy find it to be a

morally repugnant practice, particularly

when it involves a commercial

transac-tion Many base their opposition on

religious grounds, whereas others judge

it using philosophical, legal, or political

criteria

The Roman Catholic Church is just

one of many religious institutions that

oppose surrogacy It is against all forms

of surrogacy, even altruistic surrogacy,

which does not involve the payment of a

fee to the surrogate It holds that

surrogacy violates the sanctity of

mar-riage and the spiritual connection

be-tween mother, father, and child It finds

commercial surrogacy to be especially

offensive Commercial surrogacy turns

the miracle of human birth into a

financial transaction, the church

main-tains, reducing the child and the woman

bearing the baby to objects of negotiation and purchase It turns women into reproductive machines and exploiters of children The church argues that surro-gacy also leads to a confused parent-child relationship that ultimately damages the institution of the family

Some feminists oppose surrogacy because of its political and economic context They disagree with the notion that women freely choose to become surrogates They argue that coercion at the societal level, rather than the personal level, causes poor women to become surrogate mothers for rich women If surrogacy contracts are legalized, they maintain, the reproductive abilities of a whole class of women can be turned into

a brokered commodity Some feminists argue that surrogacy is reproductive

PROSTITUTION Other critics join with Catholics and feminists to decry surrogacy as baby selling and a vehicle for the exploitation

of poor women

for surrogate motherhood propose it as a humane solution to the problem of infertility They note that infertility is common, affecting about 10 percent of U.S couples of childbearing age, and that surrogacy may represent the only option for some couples who wish to have children to whom they are genetically related Advocates also point out that infertility is likely to increase as more women enter the workforce and defer childbirth to a later age, when fertility problems are more common

Advocates of surrogacy also argue that ADOPTIONdoes not adequately meet the needs of infertile couples who wish

to have a baby They point out that

there are many times more couples than available infants Moreover, couples must wait three to seven years on average

to adopt an infant Here, too, social trends have contributed to a greater call for alternative reproductive options Most important, an increased use of contraceptives and ABORTION and a greater acceptance of unwed mothers have led to a shortage of adoptable babies

Those who favor commercial surro-gacy object to characterizations of the practice as baby selling A surrogacy contract, they assert, is a contract to bear

a child, not to sell a child Advocates of surrogacy see payment to a surrogate as a fee for gestational services, just like the fees paid to lawyers and doctors for their services Some advocates even argue that the prohibition of commercial surrogacy infringes on a woman's constitutional right to contract

Surrogacy is also supported by those who believe that society is served best when the liberty of individuals is maxi-mized They claim that women and society as a whole benefit from the increased opportunity of choice offered

by surrogacy The publicity surrounding the use of surrogate mothers by enter-tainment celebrities in the first decade of the twenty-first century has moved the practice out of the shadows and removed some of the social stigma associated with it

Advocates also maintain that in a successful surrogacy arrangement, all parties benefit The intended parents take home a cherished child, and the surrogate receives a monetary reward and the satisfaction of knowing that she has helped someone realize a special goal

SURROGATE MOTHERHOOD 455

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repudiate the contract up to 180 days after conception, in which case she may keep the child If she does not repudiate the contract during that time, the couple becomes the child’s legal parents 180 days after conception

In 1993 the California Supreme Court issued a landmark ruling declaring surrogacy contracts legal in California The case, Johnson

v Calvert (5 Cal 4th 84, 19 Cal Rptr 2d 494,

851 P.2d 776) involved a surrogacy contract between a married couple, Mark Calvert and Crispina Calvert, and Anna L Johnson Cris-pina Calvert was unable to bear children In

1990, the Calverts and Johnson signed a surrogacy contract in which the Calverts agreed

to pay Johnson $10,000 to carry an embryo created from the Calverts’ ovum and sperm

Disagreements ensued, and later that year, Johnson became the first surrogate mother to seek custody of a child to whom she was not genetically related

After the child’s birth, the Calverts were awarded custody Johnson appealed the deci-sion The state supreme court finally upheld the legality of surrogacy contracts under both the state and federal constitutions The court held such contracts valid whether or not the surrogate mother provides the egg The U.S

Supreme Court declined to hear Johnson’s appeal

In many states, surrogacy contracts are considered unenforceable because of existing adoption laws designed to discourage “baby selling.” These laws may, for example, forbid any consent to adoption given prior to the birth

of the child They may also make it illegal for a birth mother to receive payment for consenting

to give up a child or for an intermediary or broker to receive a fee for arranging an adoption In states with these laws, a surrogate mother who wishes to keep the child rather than give it up for adoption may successfully challenge an already established surrogacy contract

Laws concerning artificial insemination can also conflict with surrogacy agreements Some states have laws maintaining that semen donors are not legally the fathers of children created with their sperm These laws were originally designed to facilitate the development of sperm banks In a surrogacy arrangement, they conflict with an attempt to adopt the surrogate child

Increasingly, states are drafting laws that clarify the legal status of surrogacy arrangements, including who is the rightful parent of a child born through surrogate mothering

State laws differ in the way they handle surrogate motherhood contracts Most state laws on the issue are designed to prevent or discourage surrogacy Twelve states specifically allow surrogacy contracts under certain condi-tions Several other states (Arizona, Indiana, Louisiana, Michigan, Nebraska, New York, North Dakota, and Tennessee) specifically prohibit surrogacy contracts as void and in violation of public policy In some states (Kentucky, Utah, and Washington, as well as the District of Columbia) entering into a surrogacy contract or assisting in procuring such a contract is a criminal act, punishable by fine, imprisonment, or both

State laws likewise vary in the way they handle disputes over custody Surrogacy laws

in Michigan and Washington make custody determinations on a case-by-case basis, attempting to reach the decision that best serves the interests of the child In New Hampshire and Virginia, such laws presume that the contracting couple are the legal parents but give the surrogate a period of time to change her mind In North Dakota and Arizona, the surrogate and her husband are the legal parents

of the child

The COMMISSIONERS ON UNIFORM LAWScreated

a stir when it amended the Uniform Parentage Act to authorize gestational agreements as valid contracts According to the prefatory note to the uniform act, the commissioners determined that such agreements had become common-place during the 1990s, so the law was merely designed to provide a legal framework for such agreements However, several organiza-tions decried the inclusion of these provisions

As of 2009, 19 states have adopted the act but only a few include the surrogacy contract provisions

FURTHER READINGS Hall, Mark A., Mary Anne Bobinski, and David Orentlicher.

2003 Health Care Law and Ethics 6th ed New York: Aspen.

Larkey, Amy M 2003 “Redefining Motherhood: Determin-ing Legal Maternity in Gestational Surrogacy Arrange-ments ” Drake Law Review 51 (March).

Markens, Susan 2007 Surrogate Motherhood and the Politics

of Reproduction Berkeley, Calf.: Univ of California Press.

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Rae, Scott B 1994 The Ethics of Commercial Surrogate

Motherhood: Brave New Families? Westport, Conn.:

Praeger.

CROSS REFERENCES

Adoption; Child Custody; Family Law; Parent and Child.

SURTAX

An additional charge on an item that is already

taxed

A surtax is effectively a tax built onto, and

based upon, a pre-existing tax For example, if a

person pays one hundred dollars of tax on one

thousand dollars of income, a 5 percent surtax

would amount to an additional five dollars

In 2009 Congress considered a bill that

would impose a surtax of up to 5.4 percent on

families with incomes above $350,000, in order

to fund health care coverage Opponents argued

that the levy would unduly affect business (and,

in turn, employment), as over half of Americans

with incomes above the suggested levels are

small-business owners

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