72 Iowa L. Rev. 415 (1986-1987)
Litigation, Legislation, and Limelight: Obstacles to Commercial Surrogate Mother Arrangements

handle is hein.journals/ilr72 and id is 427 raw text is: Litigation, Legislation, and Limelight:*
Obstacles to Commercial Surrogate
Mother Arrangements
I. INTRODUCTION
Approximately 2.5 million couples in the United States are involun-
tarily infertile.' To accommodate these couples and others seeking alter-
native means of procreation, medical technology has developed techniques
such as artificial insemination,2 in vitro fertilization,3 embryo transfer,4 and
surrogate motherhood.5 These new methods of reproduction have raised
*Noel Keane, a leading attorney in the surrogate arrangements field, stated: The battle
for legitimizing surrogate motherhood is being waged on three fronts: through litigation,
legislation, and limelight. Detroit News, Nov. 24, 1981, at 6b.
1. Human Embryo Transfer: Hearings Before the Subcomm. on Investigations and Oversight of the
House Comm. on Science and Technology, 98th Cong., 2d Sess. 34 (1984) (testimony of Howard
W. Jones, Jr., M.D.). Problems with a woman's reproductive system are the source of infertility
in 60% of the recorded cases. Wallis, The New Origins of Life, TME, Sept. 10, 1984, at 46, 50.
2. Artificial insemination involves the instrumental injection of the donor's semen into the
woman's reproductive tract for fertilization of the woman's egg. See Sagall, Artificial Insemina-
tion, TRIAL, Jan.-Feb. 1973, at 59, 59. There are two basic types of artificial insemination:
artificial insemination homologous (AIH) and artificial insemination donor (AID). Id. In AIH
the sperm of the husband is used to impregnate his wife. See id. This technique is used most
often when the husband is either physically unable to have intercourse or has a low sperm
count. See id. at 61. A child born through AIH is the biological product of both the husband
and wife. See id. at 59. AID is used when the husband is sterile, has a low sperm count, or
carries traits of a genetic disease. See id. at 61. Sperm is donated by a third party whose identity
is known only to the inseminating physician. See id. at 62. The sperm donor has no parental
rights or duties to a child born through AID. See id. The child is biologically related only to the
wife in the marital relationship. See id. at 59. For additional discussion on the topic of artificial
insemination see generally W. FINEGOLD, ARTIFicAL INSEMINATION (1964) (discussing artificial
insemination techniques); Guttmacher, Artificial Insemination, 18 DE PAUL L. REv. 566 (1969)
(analyzing legal issues raised by artifical insemination); Lorio, Alternative Means of Reproduction:
Virgin Territory for Legislation, 44 LA. L. REv. 1641, 1643-46 (1984) (discussing AID, AIH, and
requirement of husband's consent to wife's insemination). Although no law prohibits the use
of artificial insemination by single persons, less than 10% of doctors and fertility clinics
performing the procedure are willing to provide the service to unmarried individuals. See
Curie-Cohen, Luttrell & Shapiro, Current Practice of Artificial Insemination by Donor in the United
States, 300 NEw ENG. J. MED. 585, 585 (1979) [hereinafter Current Practice].
3. In vitro fertilization is the fertilization of an ovum by sperm outside of the woman's
body. Annas & Elias, In Vitro Fertilization and Embryo Transfer: Medicolegal Aspects of a New
Technique to Create a Family, 17 Fnm. L.Q. 199, 199 (1983). Oocytes are removed from the wife's
ovaries and fertilized in vitro with sperm from the husband or an anonymous donor. See id. at
199 n.1.
4. Embryo transfer describes the process that occurs when an ovum is fertilized outside
the uterus, and the fertilized embryo is transferred into the womb. See id. at 203-06. Embryo
transfer permits married couples with infertility due to the wife's irreparable fallopian tube
disease to have children. See id. at 210, 214. This technique is also used when the husband has
a low sperm count or other semen abnormalities. See id. at 210.
5. For purposes of this Note, a surrogate mother is a fertile woman who agrees to conceive
and bear a child for another person. See Surrogacy Arrangements Act, 1985, ch. 49,  1
(defining surrogate mother). In most instances the woman is artificially inseminated with

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