Washington Law Review


Americans in the mid-1980s were shocked by the facts of the Baby M case. That case, a compensated surrogacy arrangement that publicly went very wrong, raised complicated issues that the country had not considered: whether a woman could contract to carry a pregnancy for another person without becoming the legal mother; whether she could be separated from the child at birth, even though it was her genetic offspring; and whether the contract could take precedence over a mother’s regret over giving up the child. As a result of that case, a number of states, including Washington, prohibited compensated surrogacy arrangements. Twenty-five years later, the fundamental nature of families has changed. In the process, the public has gradually accepted surrogacy as an option for families with infertility issues. Gestational surrogacy, where the surrogate is not genetically related to the embryo, has become more the norm. Without the genetic link to the embryo, the concept of “mother giving up child” does not ring the same, either legally or morally. Also, while sperm-banking has been available for decades, increasingly infertile couples rely on egg banks to assist them with their infertility issues, without entangling them in personal relationships with the donors. In this climate, and specifically as some state legislators experience surrogacy first-hand, state legislatures have begun reassessing their surrogacy prohibitions. The Washington Legislature undertook such a reassessment in 2011. This paper will discuss the facts of the Baby M case, the enactment of the 1989 compensated surrogacy prohibitions in Washington and the 2011 attempt to reverse them, and some thoughts for future legislation in this arena.

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