Changing Your Mind About Surrogacy–What’s a Court To Do?

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.

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20 responses to “Changing Your Mind About Surrogacy–What’s a Court To Do?

  1. As a surrogate myself, it’s really interesting to see the statistics. The popular version is always that the surrogate will keep the baby, with no discussion ever about parents abandoning the baby. Thanks for linking to those stats. Ohio is also interesting in that the adoption or birth order question is left to the individual county with no uniform state law.

  2. Were the 74 intended parents who walked away- were they genetic parents or not?

    I am apalled that the court found the surrogacy contract valid.

  3. Courts wont enforce a contract for adoption executed prior to the birth of the child. Many couples feel differently about giving a child up for adoption after the baby is born. I presume that the law is the way it is to prevent human bondage. A woman who gives birth to her offspring is not kidnapping the child by not relinquishing it under the terms of a contract.
    For that reason I find the law is in conflict with itself – if birth is all that it takes to make a woman a mother, even if she is not genetically related to the child as its mother, then a surogacy contract would be totally unenforceable.
    If DNA were the determining factor in who the mother of a child is, the woman that gave birth would not be in a position where she had to give the child up for adoption after it was born. Surrogates don’t enter into contracts to give a child up for adoption before its born, they enter into a contract to gestate the mothers offspring for her. Its not her child to give up for adoption.

    I think the court made a mistake in ruling that the child had no natural mother or father. Her mother and father conceived and abandoned her for a fee. She is a foundling an orphan although her parents are alive somewhere. I suppose the woman that paid to have that man and woman conceive and abandon their child owes the child on some level.

    Gamet selling is such word play. They are selling anonymous, non-contact mating and offspring abandonment. And they know it. And we know it.

    • While arrangements can be made for an adoption while a woman is pregnant, every state in the US (as far as I know) will give her some time (even if not much) to confirm (or not) the decision after the birth.

      Some courts will treat a surrogate differently (but the practice varies quite widely across the US and around the world.) In some places it might matter whether either the surrogate or the commissioning parent(s) have a genetic relationship.

      • Yes but why would a surrogate be treated differently than any other woman planning to give her child up for adoption? The fact that she was paid to give the child up? The fact that she was paid to conceive the child with a particular person chosen by the person paying her? In the end does any of that really matter? I think the surrogacy contract should be valid because she is providing the service of incubating someone elses child not her own. She’s giving that person back their own offspring. In a situation where she’s giving it back to someone who is also not related, well I don’t know what to say about that. I’m surprised its allowed – for health reasons if not for the frankenstein aspect of it all.

        • Your question–why a surrogate might be treated differently from a woman planning to give up her child for adoption–is at the heart of the debate over surrogacy, I think. And it doesn’t have an easy answer.

          Some people distinguish between surrogacy where the pregnant woman is genetically related to the fetus (which is then called “gestational surrogacy”) and that where the pregant woman is genetically related (which is called “traditional” or even “straight” surrogacy.) You might do this if you think the genetic connection is very important.

          In that case, you might say the genetic surrogate isn’t a mother–she’s more like a hired caretaker. The woman with the genetic connection is a mother.

          It’s harder to justify treating the two types of surrgacy differently if you do not place much weight on the genetic connection.

          It’s also hard to answer your question without thinking about why a woman placing her child for adoption does get the time to reconsider after birth.

          I know this isn’t very satisfying. I think I’d need to come back to it in a main post. Meantime, you can find some discussion of this in the older posts on the blog.

  4. Sperm banks don’t tell donors stories like these. They tell them how wonderful it is that they are helping infertile. I doubt the donors had any idea that their gametes were going to totally unrelated people to be raised by yet a third unrelated person.

    • I am not sure what sperm banks tell providers and of course I’m sure the reality is that it varies. How much the provider fully appreciates also doubtless varies. Does the comprehension of the provider matter to the assessment of the ultimate outcome?

      I suspect there are some who would be fine with the material being sold to someone who was going to use it like this. Does that make it okay, though? (Since I’m not troubled by the sale of the gametes, it’s fine with me.)

  5. The contract should be declared invalid, MB should keep the baby (if she wants it).

    Having established an in-loco-parentis relationship by virture of her pregnancy, she is the only one who has any connection at all to the child.

    (I consider her, as a surrogate, somewhere between a foster and an adoptive parent

    If she does not want the child, the child should be turned over to the state who will than decide if the commisioner is an appropriate candidate to adopt.

    The surrogate should probably return the surrogacy money to the commissioner.

    • Here, I think, is the real challenge–what is the proper outcome and why. I think I’m with you here. As between the two women I would give the greater claim to the one who was pregnant. For more, one can go back in to earlier posts and see the arguments I’ve made.

  6. Marilynn Huff

    I really think that people who anononymously conceive and agree to abandon their offspring should be notified when the child is born and then have to give the child up for adoption so that there is a record of how many offspring each person has and who is taking care of them. As Kisarita said, I bet that the people who conceived and abandoned this child, thought that they would be mated with a person that was planing to raise the child, not another anonymous clinic employee. Maybe they should be notified and they could have the option of raising their own offspring. It seems so wrong to assign motherhood based on payment for services rendered.

    • I continue to find the terminology you use quite problematic. In your first sentence—you mean to identify the sperm provider as someone who has anonymously conceived? I don’t think he’s conceived anything at the time he donates. And to say that he conceives at the time the sperm is mixed with the egg–whether in vitro or in utero–seems very odd to me.

      I know you’re committed to the idea that he is mating with someone, but that terminology doesn’t help me at all either. When is he mating? When he first provides the sperm? When the sperm is mixed with the egg?

      All that said, I take your point to be that when the sperm is used to concieve a child and then the child is born, he should be notified and parental rights should then be terminated? That means he would acquire parental rights initially by virtue of the genetic linkage, I take it. This is a point on which we disagree and it’s also one where there’s been a lot of conversation I won’t recount here. Suffice it to say that I do disagree.

      What result would this lead to here? Let’s assume you could locate the egg and sperm providers. If they both said they wanted the child, you’d have a custody fight, right? If neither wants the child, then what? Are they on the hook anyway? Do they get to pick which of the two women get it? What if they disagree? Can you play out for me how this would work?

      • marilynn huff

        Every person born is a product of conception by its progenitors. A person who sells sperm to a clinic understands that women will become pregnant with his offspring. He willingly conceives children and abandons them with strangers for payment.

        I think that the people that conceived the children for payment would get 50/50 custody of the child and be financially responsible for the child unless they both give the child up for adoption. It should be handled like any regular old custody case. Any old regular order for dependant support. I think the court should throw out the little waivers of responsibility these people sign when they “donate” and force them to recognize that they are making babies and as such have some responsibility to them when something goes wrong with the sale.

      • marilynn huff

        Julie
        “you mean to identify the sperm provider as someone who has anonymously conceived? I don’t think he’s conceived anything at the time he donates. ”
        You are familiar with groups “Donor Conception Network” right? And have yourself used the term “donor conceived children (people)” right? These commonly used terms, titles and phrases readily recognize that anonymous sperm donors (providers/vendors) are conceiving children at an alarming rate and that women are opting to conceive children with anonymous sperm donors (providers/vendors) at an alarming rate and that many people are in fact donor (provider/vendor) conceived.

        I don’t understand why you are taking issue with me saying that the provider is conceiving children. All people are the product of conception by a male and female right? So in some cases the male is paid to remain anonymous to the female and their offspring after they are born. That’s pretty cut and dry. I’m not even getting into whether the law should refer to him as a father. I’m just saying that its a biological fact that he is conceiving children with women he has never met and he is doing it for a fee. Even if his sperm was given by him for some other medical research purposes, if someone stole it and fertilized an egg with it and a child was born from it at best you could say that he unknowingly conceived a child. And that would be an enormous violation of his privacy and rights – just terrible. But that is rare, these guys know that their sperm is being collected to conceive their children with customers of the clinic. They know that. Everyone knows that.

        You flip flop a lot on your position. I think things I write just rub you the wrong way sometimes but you cant put your finger on why. You don’t really think there are no “donor conceived people” do you? Your blog is dedicated to exploring the legalities of conceiving children with people who sell their genetic material to labs. If those anonymous people were not conceiving children, why then are their vital stats in profile books?

        You have been using the accurate yet neutral term “sperm provider” lately, which does not smack of sensationalism like the scathingly accurate term “sperm vendor”.

        Have you heard of the “Donor Conception Network”? You have certainly heard people refer to “Donor Conceived” people. Human beings are conceived by a male and female are they not?

        • I do actualy try to respond to what you say, but it is hard to do when your comments are long and raise mulitple issues. If you can make them a bit shorter I might be more successful? At any rate, I shall continue to try.

          I have no trouble with the term “donor conceived” except that I’ve been convinced that “donor” may not be a great word to use since the providers are paid. Hence, I’ve gone towards “people conceived with third-party gametes” which I concede is clunky.

          But the fact that people may be donor-conceived, or that the practice is called donor conception doesn’t mean that the donor is concieving. I’m not sure whether I’d say this is grammer or logic, but I think the fact that the child is donor conceived simply doesn’t lead to the conclusion that the donor conceived.

          Additionally conception occurs when the sperm fertilizes the egg. That certainly doesn’t occur at the time the man provides sperm for subsequent use in IVF or insemination.

  7. The word conception is accurate as it refers to the physical formation of the zygote. Yet another example of how threatening biological fact must be, that it must be denied!

    However the word mating is not accurate, as it refers to the sexual interaction of the parties of conception with eachother.

    In ART conception takes place without mating.

    • Marilynn Huff

      Ok i concede. I just think of the clinics as mating services because i think people are choosing a mate to conceive a child with but ok – the are just coosing someone to conceive a child with sans mating.

    • I have no problem with the use of the word “conceive” but I do think ART leads to some interesting questions about usage. I’d say that in IVF conception occurs in a petri dish or whatever it is that is actually used. I’m going to assume we are all on the same page here.

      Then the question is who does the conceiving. I guess you could say that the people who provided the gametes do, but that seems odd to me because they take no action at all at the time of conception. I suppose you could say that whoever is planning the raise the child that is being conceived does, though this too seems strange to me. You could even say the lab tech does.

      I don’t know that I have a clear preference on this yet. But I do think it’s wrong to say that the man conceives when he provides the sperm.

      • But Julie what does it mean then to be donor conceived – it means that one of the two people that conceived you was a donor. Right? It means that your mom conceived you with a sperm donor/provider/vendor and not with a boyfriend/husband/one night stand. Right?

        I’d really like you to think about what happens when a husband and wife need IVF to kick start a pregnancy. Would you say that the husband and wife conceived a child together if they did not have sex? I will aquesce to the mating thing – my mind is wide open and I want an opininion that is solid ground to stand on, so no more use of the word mate when talking about ART.

        I would like to think that you can be logical about this. Assisting two people conceive a child is not the same as conceiving a child yourself. The lab tech assists, a third party may be paying to assist two people in conceiving a child without actually having to have intercourse (a husband may assist his wife by paying the cost of the sperm and the insemination) but he in fact has not himself conceived a child. These days two people can conceive a child together without touching if they get some help from other people. In ART two people choose to conceive a child together – the donor is choosing to conceive a child with an unknown woman just as the woman is choosing to conceive a child with an unknown man. They make this decision together even though they never meet. The fact that it is a joint and consentual decision is in part why I cannot advocate to criminalize it. People have the right to make babies together even if they dont want to meet eachother. I don’t think its wise. I think it needs to be well documented and tracked to manage the spread of disease and the civil liberties of the children conceived this way.
        I think you must look at the person giving the sperm as 1/2 of the conception equasion. Especially if you use terms like donor conceived all the time as you are likely to continue doing, That’s what we chat about here on my very favorite blog. You’re the best!

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