I’m putting the discussion of issues around conception with third-party gametes aside for the moment. I’ll come back to it shortly, as I do have several additional things to say, but I wanted to return to a discussion of surrogacy. You can look at the tags to find earlier posts on the topic–there are a lot.
I should start by saying what I mean by surrogacy. I mean a circumstance where a woman agrees to become pregnant and then give the baby to another person or a couple once it is born. There are several variations on this practice, but I won’t review those right now.
The hardest cases in surrogacy are the cases where someone changes their mind in mid-stream. If everyone is on the same page at the beginning and everyone follows through as agreed it all runs smoothly. Here’s a case that illustrates the sorts of problems that arise when people do change their minds. It’s from Ohio.
SN was a single woman who purchased eggs and sperm and then hired MB to be her surrogate. After signing the contract, embryos created with the purchased eggs and sperm were transferred to MB who became pregnant with twins. The twins were born prematurely in May, 2008. One of the twins died in June, 2008.
SN was planning to adopt the remaining child, but the relationship between the two women became strained and the adoption did not proceed. In August, 2008, SN filed a legal action seeking to disestablish MB as the mother by using genetic testing. In September both parties agreed that DNA tests would show that neither was related to the child.
The trial court first found that the child had no natural parents. Here’s one of those places one could think about what the court meant by “natural parents.” Of course, there were a man and a woman who were genetically related to the child, but they were unknown. And there was a woman who had given birth to the child, but she was not genetically related to the child. Perhaps what the court meant was that there was no one who, through automatic operation of law, was recognized as a legal parent. That’s akin to the usage discussed in this earlier post, I think.
After finding there was no natural parent, the court had to choose which woman would be the child’s legal mother. While MB was presumed to be the mother by virtue of having given birth, this presumption was rebutted by the absence of a genetic connection. The court reasoned that since the lack of genetic connection can rebut the presumption of fatherhood, it should also rebut the presumption of motherhood.
The trial court then found that the surrogacy contract was valid and therefore concluded that SN was the natural mother of the child. (That’s a bit confusing, since the court started by saying there were no natural parents.)
The appellate court ultimately affirms, finding that SN is indeed the natural mother of the child. Along the way, the court does a very odd thing. Ohio has standard statutory language: ” ‘parent and child relationship’ means the legal relationship that exists between a child and the child’s natural or adoptive parents.” Instead of trying to give some substantive meaning to “natural parent” (you know, something like “a woman who gives birth” or “a person with a genetic connection”) the courts says that any parent who is not an adoptive parent must be a natural parent.
The problem is that this doesn’t get you any closer to understanding who’s a parent–it just lets you know that once you found a parent, if they are not an adoptive parent, they are a natural parent.
The appellate court also finds that the presumption in favor of MB (who gave birth) has been rebutted, but for different reasons. It finds that the surrogacy agreement is akin to a voluntary affidavit of paternity (VAP) that a man might enter into. (I’ve discussed this before, though in CA they VAPs are POPs.) After finding the surrogacy contract valid, it concludes that SN is the mother of the child, and since she is not an adoptive mother, she must be a natural mother.
Maybe I’ll go no further with the case for now, since it’s taken a while to lay out the facts. But there is one other important point to note. I found this case on another blog I follow–Spin Doctor. The author of that blog, Andrew Vorzimer, closes his discussion of the case with some statistics that surprised me.
“With more than 38,000 surrogate deliveries in the United States since 1979, there have only been 32 reported instances of surrogates attempting to keep custody of the child . . .[T]he greatest risk in a surrogate arrangement is not that the surrogate will repudiate the agreement and attempt to keep custody, but rather that the Intended Parent(s) will abandon their child(ren) and the surrogate during pregnancy. Over the same 31 year period of time, 74 Intended Parents have sought to walk away from their pregnant surrogate
There are, of course, people on both sides of the surrogacy agreement and parties on either side could change their minds. But you don’t hear nearly as much about the intended parents changing their minds. That’s really something worth thinking about.