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Surrogacy and Adoption: A Case of Incompatibility

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  • Surrogacy
  • Adoption
  • Surrogate Mothers
  • Domestic Relations
  • Family Law
  • Law
  • Law And Society
  • Biology


Surrogacy and Adoption: A Case of Incompatibility by Barbara L. Atwell* So the woman who has the baby is the surrogate mother. She is the substitute. But for what? For the real mother? No, she is the real mother. So, for what is she a surrogate? She is the surrogate, according to logic (if that is not too strong a word to use in relation to what lies behind this Bill or Act) for somebody who cannot have a baby. But that does not make her a surrogate mother, it makes her a mother. The woman who gets the baby is the substitute for that original mother who hands the baby over by a process of adoption.' INTRODUCTION Since the highly publicized case of Baby M , 2 surrogate parenting agreements have become a popular issue for public comment. While the events leading to the Baby M case began in 1985, there has been a resurgence of surrogate parenting3 since the * Assistant Professor of Law, Pace University. B.A., Smith College (1977); J .D . , Columbia University (1983). I would like to thank my husband Peter F. Hurst, J r . , Esq. and Professor Donald L. Doernberg for their editorial assistance and encouragement. I am also grateful to Professors Michael J . Kaufman and Harry G. Prince for their review of this article. I would also like to thank my colleagues at Pace for their moral support. Finally, I thank my research assistants Marianna Germana, Peter Navon, Hidelgaida Ortiz, Thomas Rubertone, and Katherine Speyer. 1. 173 PARL. DEB., H . L . (5th ser.) 174 (1986), quoted in Means, Surrogacy u. The Thirteenth Amendment, IV N.Y . L . SCH. HUM. RTS. ANN. 445, 445 n. 1 (1987). 2. In re Baby M , 109 N.J. 396, 537 A.2d 1227 (1988). 3. The woman who agrees to bear a child in a surrogate parenting ar- rangement is normally referred to as the "surrogate mother." As indicated above, this term is misleading. In fact, the surrogate is not a surrogate mother at all, but is the natural or biological mother of the child. It is perhaps more appropriate

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