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 I n 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). TheU.S.tobaccoindustrylobbied strongly against s uch 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 l aw. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 SURGEON GENERAL 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, the GENERAL 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 COMMISSION banned 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 industry LOBBYING, 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 smoking 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SURGEON GENERAL 449 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 of CRIMINAL PROCEDURE, a DEFENDANT in a federal criminal matter may move to strike surplusage in an INDICTMENT. SURPRISE An unexpected act ion, 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 and PLEADING. SURREJOINDER In the second stage of COMMON-LAW PLEADING,the plaintiff’s answer to the defendant’s rejoinder. SURRENDER To give up, return, or yield. The word surren der 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 tenan t. 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, in CRIMINAL LAW it 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 stat es with SUBJECT MATTER JURISDICTION over actions and proceedings involv- ing, among other things, the probate of wills, affairs of decedents, and the guardianship of the property of INFANTS. 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. In SURROGATE 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 SURPLUSAGE Less of ten, 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 husban d’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 $10,0 00 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 the ADOPTION by 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 the AMERICAN BAR ASSOCIATION (ABA) drafted two alternative model laws involving surrogate motherhood. These laws were not binding but were intended to guide states as they formu lated 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 marr ied 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SURROGATE MOTHERHOOD 451 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] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 452 SURROGATE MOTHERHOOD Surrogate Parenting Agreement 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). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SURROGATE MOTHERHOOD 453 A sample surrogate parenting agreement (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Surrogate Parenting Agreement 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 ___________________________________________________ ________________________ Signature of Natural Father 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 SURROGATE MOTHERHOOD Does Surrogacy Involve Making Families or Selling Babies? M edical 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. The Case for Surrogacy Advocates 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 ADOPTION does 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SURROGATE MOTHERHOOD 455 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 likew ise 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 LAWS created 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 SURROGATE MOTHERHOOD 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 $35 0,000, 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. FURTHER READING “The Small Business Surtax.” Wall Street Journal. July 15, 2009. A11. SURVEILLANCE See ELECTRONIC SURVEILLANCE; WIRETAPPING. SURVIVORS INSURANCE See OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE. SURVIVORSHIP See RIGHT OF SURVIVORSHIP. SUSPECT CLASSIFICATION A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy. Laws passed by state and federal legislatures are entitled to a presumption of constitutional- ity. A law will usually be upheld as a constitutional exercise of legislative power so long as the law has a rational relationship to its stated purpose. This is known as the “rational basis” test. Federal courts will review most laws using the rational-relationship test. However, the U.S. SUPREME COURT has held that certain kinds of government classifications are inherently suspect and must be subjected to strict judicial scrutiny. The suspect classification doctrine has its constitutional basis in the FIFTH AMENDMENT and the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT, and it applies to actions taken by federal and state governments. When a suspect classification is at issue, the government has the burden of proving that the challenged policy is constitutional. The concept of suspect classifications was first discussed by the Supreme Court in Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944 ). The Court upheld the “relocation” of Japanese Americans living on the West Coast during WORLD WAR II, yet Justice Hugo L. Black, in his majority opinion, stated that all legal restrictions which curtail the CIVIL RIGHTS of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. Though it is now widely recognized that no compelling justification existed for the relo ca- tion order and that racial prejudice, rather than national security, led to the forced removal of Japanese Americans, Korematsu did signal the Court’s willingness to apply the Equal Protec- tion Clause to suspect classifications. STRICT SCRUTINY of a suspect classification reverses the ordinary presumption of constitu- tionality, with the government carrying the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling STATE INTEREST. If this is proved, the state must then demon- strate that the legislation is narrowly tailored to achieve the intended result. Although strict scrutiny is not a precise test, it is far more stringent than the traditional RATIONAL BASIS TEST, which only requires the government to offer a reasonable ground for the legislation. Race is the clearest example of a suspect classification. For example, the Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 198 L. Ed. 2d 1010 (1967), scrutinized a Virginia statute that prohibited interracial marriages. The Court noted that race was the basis for the classification and that it was, therefore, suspect. The Court struck down the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUSPECT CLASSIFICATION 457 . com- prehensive New York law, New York Public Health Law I (sections 1 399 -n to 1 399 -x [McKinney 199 0]), took effect January 1, 199 0, and targeted most public areas and workplaces. The law permitted smoking. the Politics of Reproduction. Berkeley, Calf.: Univ. of California Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 SURROGATE MOTHERHOOD Rae, Scott B. 199 4. The Ethics of Commercial. gestational mother, of the child. This method of surrogacy is some- times called traditional surrogacy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 SURPLUSAGE Less of ten, when the intended