concurring.
In my view, the statute is unconstitutional for a number of reasons in addition to the one described above.
Preliminarily, the state, in principle, may indeed seek to regulate or even to prohibit surrogacy. It has a legitimate interest in preventing the mercenary trafficking in babies, i.e., rent-a-womb services and the buying and selling of eggs. It also has a legitimate concern to avoid the emotional disruption in the gestational mother likely to result from taking the child from her (e.g., Mary Beth Whitehead), as well as the child’s denigration as an object of profit. These constitute compelling reasons in principle why regulation or prohibition in this area may be appropriate. See W. Wagner, “The Ethical and Legal Implications of Hired Maternity,” 35 American Journal of Jurisprudence 187 (1990).
I agree with the majority that the present statute does not adequately achieve these goals, but for me the reasons differ. I agree with the trial court’s reason for holding the statute unconstitutional, namely that it imposes the burden of motherhood on a surrogate mother who almost certainly does not wish it and did not contract for it. Her contract is to carry the child, not to nurture or raise it. The statute thrusts these burdens on her as a duty well beyond her contract.
By way of corollary to that reason, the statute disregards the best interests of the child. It does so in two ways. In the first place, by automatically giving custody of the child to the surrogate, the statute ignores the very real possibility, just mentioned, that the gestational mother has probably no interest whatsoever in raising the child, hardly a decision in the child’s best interest. Equally importantly, the statute ignores the universal pattern in our domestic relations law to make the determination of the child’s custodian an evidentiary matter turning on the child’s best interests, rather than a matter of a priori statutory fiat. See for comparison, AR.S. section 25-332, including subsection E, which prohibits any custodial preference based on gender.
Furthermore, the first part of the statute is overbroad because it prohibits all surroga*476cy whether it is mercenary or not. I cannot see any constitutional barrier to a properly-drafted statute which would permit surrogacy for limited altruistic motives other than profit, i.e., where a family member or friend agrees to serve as an unpaid gestational surrogate for the genetic mother.
Although I share the concern about the due process violation regarding the mother’s inability to prove maternity, that issue seems to present no great practical problem because maternal identity always seems to be a given fact. To me, the reasons above are more compelling for holding AR.S. section 25-218 unconstitutional.