Well, I hardly mean this to be a blog devoted exclusively, or even primarily, to questions of surrogacy. But here is a recent Ohio case that is both current (decided in December) and on the topic of the last few days. (See here and here.) So how can I not? I’ll move on to something else tomorrow.
This case has been kicking around for some time in at least two different court systems. It seems an Ohio man wanted to be a parent. He purchased an egg from a woman in Texas. The egg was fertilized with his sperm and the resulting embryo was implanted in a woman from Pennsylvania. She gave birth to triplets. The deal fell apart when the woman who gave birth took the triplets home. (You can find some details here or in other press coverage.) Litigation in both Pennsylvania and Ohio followed.
In December the Ohio Supreme Court issued an opinion you can find here. It’s pretty short and worth reading, both majority and dissent. The majority basically says there isn’t any Ohio policy (i.e. there are no laws passed by the legislature) about gestational surrogacy and so there’s no reason not to enforce the contract. They go as far as allowing consideration of an award of damages against the surrogate for breaching her obligations.
In my view they completely miss the real issue, which the dissent sees quite clearly. The question really is whether the woman who gave birth is the mother. If she is, then the contract has to fail (it’s the old you cannot sell babies thing.) If she is not, then it’s just a contract. But you must decide whether or not she is a mother before you can decide about the contract.
The dissent also notes another interesting point. It would seem that this is a child who does not have and never did have a mother. The egg donor is not the mother (either because she sold her parental rights for $2500 or because she never had any parental rights.) And the woman who gives birth is not a mother. This may be fine–you get the same result whenever a single man or a gay male couple use a surrogate and a purchased egg to begin a family. But it is still worth noting.
Finally, two other quick points. Compare this case to the outsourcing motherhood problem. The real difference is the global dimension (and hence, the race to the bottom for wages). But they’re both instances of the same process. And if you dig into the facts, note that for the first two years of their lives the triplets lived with the surrogate and her husband. Is that important in considering parenthood?
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