KELLER V. ROSE: APPELLATE BRIEF

This paper consists of a summary of the facts, the legal issue presented, the legal arguments and points and authorities supporting an appellate brief to be filed by plaintiffs-appellees, Patricia and Stephen Keller ("Plaintiffs" or "the Kellers"), in the appeal of defendants-appellants, Isaiah and Madeline Rose ("Defendants" or "the Roses"), to the Illinois Supreme Court of the decision of the Appellate Court of Illinois in favor of Plaintiffs in Case No. 96-L-2041. The Appellate Court reversed the decision of a trial court in Cook County which had found that a surrogate agreement between the Roses and the Kellers was valid and that the attempt by the Roses to obtain legal custody of the female child, Leah Clare Rose ("Leah"), born pursuant to the surrogate agreement, was in breach thereof.

The Roses are a married couple. Madeline Rose in her 40s and her husband Isaiah were childless. They wished to have a child, but were concerned about the risks of pregnancy. The Roses decided (with the assistance of a third party agency) to arrange for the creation of a fertilized embryo. An egg contributed by an anonymous female donor was impregnated with Isaiah Rose's sperm and then implanted in the body of a willing third party female ("gestational mother") who would be willing to accept such implantation, carry the resulting fetus through pregnancy, give birth and then deliver the baby to the Rose's 72 hours after birth. Under the s

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tatute should prevent the enforceability of the surrogate agreement. There is very little, if any, difference between an commercial arrangement for a baby to be gestated by a woman's body for hire under a surrogate agreement and a paid adoption which has long been banned in Illinois under APCA. Those purposes were summarized pithily by the New Jersey Supreme Court in In re Baby M when it said at p. 1249 that "there are, in a civilized society, some things that money cannot buy." There is first the element of convenience. It was not established that Mrs. Rose could not have children nor even that medical opinion was against her attempting to do so, but merely that the Roses were concerned about the risks of pregnancy. The Warnock Commission in Great Britain which advised against enforcing assisted reproduction agreements said: "surrogacy for convenience alone . . . is totally ethically unacceptable." It went on to add that "even in compelling medical circumstances the danger of exploitation of one human being by another appears to . . . outweigh the potential benefits . . . that people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection." (Judith Areen, Bab

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