Not-So-New Wisconsin Surrogacy Opinion

I cannot tell you why it is so difficult to make time for the blog this fall, but it must be obvious to you all that it is.  I figure the best I can do is press on, trying as I can.  So here I am with what is, I am afraid, both a late and a disconnected post.

Over the summer the Wisconsin Supreme Court issued an important opinion on surrogacy.   The case began when David and Marcia Rosecky, a married couple, made an agreement with Monica and Cory Schissel, also a married couple, that Monica would serve as a surrogate for David and Marcia.

Marcia and Monica had been good friends for many years.  When Marcia required treatment for leukemia (treatment which was fortunately successful), Monica offered to be a surrogate.   She offered twice–in 2004 and 2008.  

In 2008 the Roseckys accepted the offer.   They considered using a donor egg but decided on using Monica’s eggs instead.   (This decision was at least partly motivated by the idea that they could be sure of Monica’s family history, which seems to me to be resonate with arguments frequently raised on this blog.)  The parties agreed that Monica would have no legal rights as a parent, but would see the child through informal social visits.   (I don’t think I can tell if there was an agreement about whether/when the child would know who Monica was, vis-à-vis the child.)

Of course, there wouldn’t be a case if this hadn’t all gone sideways in the end.   Sad to say, it did.  By the time the child was born (March, 2010) Monica had changed her mind and refused to agree to the termination of parental rights.

In hindsight (and of course, it is always easier in hindsight) there’s at least one thing that might have signaled potential trouble.   Surrogacy isn’t for everyone.  Not everyone can be a surrogate.  And sadly, it seems fairly clear that not all the people who think they can be surrogates are right.   Monica, it would seem, falls into this category.

I think you have to assume–and indeed, I believe–that all the people here acted in good faith.   They meant to do what they said they’d do.  This isn’t a commercial surrogacy case.   No one was tempted by (or coerced by) offers of money.    The Rosecky’s and the Schissels were close friends.

But as I said, surrogacy isn’t for everyone and Monica couldn’t hold up her end of the bargain.   I don’t know if that’s what lead to the falling out the opinion refers to (paragraph 12) or if the change of heart about the surrogacy caused the falling out, but it doesn’t matter much.  In the end, these two families are clearly not on good terms and the whole thing is very  messy indeed.

So what’s the point?   Writ broadly I suppose I’d say we all need to be pretty careful about what we say (and what we think) we can do, because we don’t always know ourselves that well.  But more specifically I’d say that anyone contemplating being or using a surrogate should be very careful to have someone competent do some psychological screening of all the participants.

Now in truth, I don’t know how good the screening is.  I don’t know if anyone’s done a really rigorous study that shows the difference between screened and unscrewed surrogates.   So you can tell me I’m wrong here.  (If you’ve got studies that show I’m wrong, that is.   If it’s your gut feeling vs. my gut feeling you’ll have a harder time persuading me.)   But it makes sense to me that dispassionate and trained professionals can help people make a better assessment of what they can and cannot do.    And while there’s no saying what the Roseckys would have done if Monica had retracted her offer before she became pregnant, we can be pretty sure we wouldn’t have ended up where this case does.

That is all an important, but in some ways tantential, point.   That is about how you could avoid this next time.  But the WI court couldn’t avoid this and so had to decide it.   What it did is noteworthy.   First, it held that Monica’s agreement to terminated parental rights (TPR) is not enforceable.   That means Monica remains a legal parent.

(An aside here.  It looks to me like she is a legal parent because she gave birth to the child and WI has law that say is presumed that a woman who gives birth is a legal parent.   I wonder if that presumption could be rebutted in a case where the intending mother provided the egg and so could claim genetic connection?   I don’t know the answer.  More on that another time, perhaps.   And this is an aside here because Monica was also the genetic parent and so there would be no apparent basis for rebutting the presumption anyway.)

But the rest of the agreement–which provided that the child would live with and be raised by the Roseckys and not by Monica–is enforceable unless it is shown to be against the child’s best interest.   This means that for now (further proceedings could follow) the child is raised by the Roseckys with no visitation/contact for Monica.

This seems to me a slightly odd place to land in the end.  Monica has the legal status of a parent (and Marcia Rosecky therefore does not) but she has no contact with the child.  And it’s not because she is unfit.

I’ll stop here.  Maybe if I leave it hanging I’ll be back tomorrow.  Fingers crossed.

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68 responses to “Not-So-New Wisconsin Surrogacy Opinion

  1. the confusion in this case rises from calling Monica a surrogate, which implies that she was carrying someone else’s embryo. By the fertility industry using this deceptive language, they nudged these families into this untenable situation.

    • Fair point. I copied the language from the court which might have copied it from the parties. I think it is perhaps true that Monica agreed to be something the parties called “a surrogate.” But you are right about language and how it might obscure.

      This leads me to some other interesting thoughts, which I will only skim over here for the moment. Mainly what I’m thinking is that on the one hand, I’m not personally enthusiastic about distinguishing between what is typically called “traditional surrogacy” and what is typically called “gestational surrogacy.” But on the other hand, if you strip out the language, Monica could be described in pretty traditional terms as a mother while the gestational surrogate might not be. (Which would support making that a significant distinction.)

      • not surprising that you as an ART activist would prefer language that is designed to obscure the obvious, that in my opinion would not occur to a neutral party had the fertility industry not been the first on the scene to promote their thing. i am,sorrt to see that the legal field has fallen for it so uncritically. your aversge layperson is wiser. but dont you see how biased that is? as you said, the only difgerence btw monica and any other mother is a freakin piece of paper- a contract. to define a woman as a surrogate merely because she signed the contract presupposes that the contract will be upheld and carried out. which of course is what the industry wants, but hardly makes for a fair hearing.

      • I know this is probably a dead subject now. I can tell you this was not just a “she changed her mind” issue. The Roseckys turned on Monica. Marcia Rosecky was jealous that Monica was giving her husband something she could not and accused Monica of having an affair with David. Monica is a loving mother and wife and would never do that to her or anyone else’s family. This broke the long time frienship. I just don’t understand how people who have so little information on the behind the scenes interactions of these couples can come to the conclusion that the Roseckys were the victim in this situation. I know Monica and she is giving to a fault. The way she was treated by the Roseckys I wouldn’t wish on my worst enemy! They outright lied about her to benefit themselves. And the shame of it all is that it worked. I have read other articles about this subject and all of them have the same theme that Monica just changed her mind. I guess being verbally abused by your long time “friend” would make anyone feel warm and fuzzy about giving them a baby, Right?! There was a lot of promises from the Roseckys that they reneged on, but they come off as the poor couple that mean old Monica screwed over. Please, reserve your judgements of a situation that you have so very little information about!

        • It has been a long time but I am posting this comment for a specific reason. It is a good reminder that generally we do not know “the truth” in any of the stories that appear here. And in fact, the truth is almost always way more textured and complicated than it appears in press accounts or court opinions. We almost assuredly should reserve judgment on the specific cases–or at least on the individuals in the cases. We just do not know enough.

          With that limitation in mind, the individual cases become illustrative at best–here’s a story that suggests one way things can go awry. Assuming (for the moment) things happened as reported.

        • in my opinion it really shouldn’t matter who changed their mind and who treated who poorly because the agreement should have never been considered legally enforceable in the first place.

          • In the agreement there was a “severability clause”. This made it possible to enforce the agreement even though parts of it were deemed not “legal”. The only nonlegal portions were the ones the two lawyers representing the couples agreed upon that would have benefitted the Schissels. How can you be represented by a lawyer and have them review the agreement and have illegal things in it. Now, what was agreed to by both sides as a fair to both sides agreement becomes one sided and only benifits the Roseckys. I don’t know how this severability clause is legal. You can sign something and later be held to something entirely different. You wonder why some people don’t trust lawyers? I don’t!

            • i disagree with the severability clause being the problematic issue; the entire contract should have been thrown out the window to begin with. pre-birth transfers of custody are generally not acceptable and wasn’t that the main focus of the whole contract? there is no reason why this should have been treated differently merely because the word surrogate was used, as is explained in the brilliant dissent.

              • I agree it should have been tossed to begin with. It was deemed an illegal contract by the first judge and he ruled accordingly. The Schissels were allowed to see the boy(including his half siblings) at regular visits. Once the severability clause was enforced and the supreme court said the contract was “legal” because of that, the Schissels have not seen the boy since. Even worse that, once Monica doesn’t see him for a year they can petition for her to be found an unfit mother and her parental rights can be rovoked.Their lawyer and the first judge have stated that that will probably be granted. I can not understand how her rights be revoked when its the court that took her right to see him away? Their is not a restraining order but she can’t just show up at their house to see him.

  2. anyway I am waiting for the explanation because I really don’t see how they can both declare her a legal parent but have no parental rights… i’ll be checking the blog!!!

    • Oh, I cannot really explain this one. Monica is the legal mother (and couldn’t give away the right to be that via contract) but she seems to have given away most of the meaningful rights that go with being the legal mother. Via the same contract. I’m still trying to work out what this means.

      Two things she still has, I think. To the extent a child might inherit from a parent in the absence of a will, that would work here, I imagine. And also as long as she is the legal mother, I don’t see that Marcia can adopt. (Unless WI is about to allow three-legal-parent families.)

      More on this part soon, but I cannot promise explanations.

      • I think then that this touches on the aspects of legal parenthood that you have not wanted to address even when I really press you about them. Like when I say its a bad idea to terminate an abusers legal parenthood because of all that his/her child will loose. You are hyper focused on this idea that being a legal parent means you have authority and custody. No matter how many examples I point out of that not being the case you’ll never converse with me on that. As long as the person’s name is on the birth certificate it means they are a legal parent even if the other parent has full physical and legal custody of the child. This means that the child does not loose legally recognized kinship within their family and they will always be able to access the vital records of their relatives and vice versa which can be helpful if they suspect that they have siblings out there some where – as long as that parent was named parent on their siblings birth records they can access their records and vice versa. They’ll have family leave act rights and rights to help siblings immigrate, citizenship rights and rights to inherit, rights to support and to contact that their custodial parent cannot interfere with. They’ll also have rights as the step child of their parents spouses; this includes rights to vital records of their step relatives and vice versa and includes rights to their financial support through the increased incomes of their parents joint marital income. It also includes rights to be on their step parents medical insurance polices and rights to their step parents social security and military death benefits should they die before they turn 18 AND they can have that right will still having a right to their non-custodial parents social security and military death benefits and medical insurance policies.

        It is a far better deal for a child not to have their parent’s legal parenthood terminated. Step families have tons of rights and that is a huge plus for the kid. The only thing you’ve been able to cite that they might miss out on is if their custodial parent dies before they are 18 they might not remain with their step parent. But if the non custodial parent was declared unfit already then they won’t be going to live with them obviously. And if the custodial parent is THAT worried about it they can I’m sure write their wishes into their will similar to how one might request that their children go live with their god parents as legal guardians in the event of their death.

        Sounds like this woman is remaining a legal parent but that they are enforcing their custodial arrangement. I find it hard to believe that a judge would force her to abide by it. Really joint custody would be in the child’s best interests always unless one parent was unfit or unwilling.

        So talk about the other aspects of legal parenthood or think about them.

        • I’m not going to go line by line through what you’ve written. Suffice it to say some is correct, some is incorrect (the meaning of the name on the birth certificate) and some is opinion and you’re certainly entitled. I will instead try to get to the main point of what you say.

          When a person is a legal parent (and I stress the modifier “legal”) it means that the person is the holder of a whole bunch of rights and obligations vis-à-vis the child. To my mind, the most important to these are indeed the ones you say I fixate on–the right to make major decisions for/about the child and the right to live with/spend time with the child. But these are by no means the only rights–there are other rights, like the right to have a child inherit from you even if you haven’t written a will. (It is also true that people who are not legal parents may have some rights, but that doesn’t seem important here.)

          It is also possible to curtail the rights of a legal parent. So for example, some legal parents don’t have rights to custody and/or visitation. Usually–indeed, I’d say almost always–this happens when the legal parent behaves badly (to put it mildly.)

          What’s happened in this case is, it seems to me, odd and exceptional. Monica has not behaved badly (in the view of the court). There is no justification for terminating her parental rights (the most extreme sanction) and the reason her parental rights are limited is not because of her bad behavior.

          You can think of it as an agreement about a custodial arrangement and of course, people do enter into those. But generally those actually aren’t enforced as contracts. And they aren’t entered into in advance of the birth of the child. (If they are, they usually wouldn’t be binding.)

          So I think this is decidedly odd. I do not mean that I think they ought to terminate her legal rights, though. I didn’t mean to say that. What I meant to say was they have left this in a really odd place. I don’t actually see why the contract is adequate for one purpose and not the other. (And this, of course, is the point of the well-written dissent, which makes the case better than I can.)

          • Yes and thanks for addressing this. You hit on the most important thing which is that when person is the legally recognized child of a person who has no authority or control over them it is usually because the child would not be safe emotionally or physically. Parents can’t generally thwart earnest caregiving efforts on the part of the other parent without just cause and a private contract really should not be called just cause. Thanks for responding.

      • Ive hit on the explanation and that is exactly the point i made in my original comment: language. acceptance a priori of the term surrogate biased the court against monica. although in the end they concluded thst legally she was a mother, they continued to relate to her as something other. I’ve read carefully thrpughh thr decision and found a bunch of examples but don’t have access to my computer to lust them all, will do so if the discussion is still going when i get back.

  3. Julie what would you look for in a psychological screening? Someone who was icy cold and thought of children as objects to be bought, sold, gifted or traded? Someone who thought she was the owner of her child and could give him/her away as a gift if she felt like it? There is nothing psychologically stable sounding about either thinking that they have no personal responsibility for their own actions or that they are the owner of their offspring and can give them as gifts to people who want them.
    the children they create.

    • I suspect sarcasm here, but just in case…..

      I’m not an expert but no, I would not look for icy cold nor for someone who thought of children as object to be bought/sold. I wouldn’t look for someone who thought of a child as property.

      I would look for someone who was stable and reflective and had a pretty clear sense of herself and her capacities and limitations. I’d look for someone who took honor and commitment seriously. I’d look for someone who paused and thought hard before deciding whether or not she could make this commitment.

      Maybe those aren’t the right things. This is why I would want to rely on someone who actually knew what they are doing, knew what questions to ask and knew what answers to worry about. But there clearly are women who can be surrogates–for whom it is not a terrible painful experience but a gratifying and fulfilling one.

      • Oh the first pass was sarcastic, you did not see that one. I think you have given a reasonable answer as to the qualities someone might look for in someone willing to be a traditional surrogate. I also think that I give some fairly reasonable traits to look for. They really have to see themselves as a worker who produces children to serve a purpose for other people. They may feel that purpose is a noble one – ie the gift of a family to people they feel deserve one, but it is a worker/product based view of themselves and their children there is no way around it.

        There are those who think I favor biological parents as superior somehow and I want to set the record straight – minors need to be protected from their biological parents acting just like this. It all starts with biological parents treating their young in an objectifying manner. You would not see adoptive parents of a brand new baby contracting away their adopted baby to people who they think would make good secondary adoptive parents. I’m not talking about failed adoptions here, I’m talking about the kind of business decision a surrogate might make. I’m real clear on who the primary culprits of objectification are.

      • someone who took honor and commitment seriously? sounds positive. except when you realize thay the subject of the commotmemt is yo ur child
        phrasing is ignoring the issue.

  4. Hey I’m just reading this thing and something struck me that you said to me many moons ago that people cannot contract in and out of parenthood. Yet, shockingly it sounds like the court thinks that private contracts for custody of and parental title over, a human being, are enforceable? That’s freaking twisted!!!!!!!!!! You said your own self that people are not suppose to be the objects of contracts for their custody and control. I think it smacks of child trafficking. I’ve always thought that surrogacy smacks of child trafficking but I think courts are apt to enforce the contracts because they feel like the alternative is to put the child with a person that does not want them. So they reward the child buyers by letting them buy the child because at least the child is wanted by them.

    • Though I wouldn’t choose the precise words you use here, this is why this strikes me as so odd. From an intellectual point of view, it makes more sense to me to say a surrogate isn’t a legal parent at all (there are ways to reach that conclusion) than it makes sense to say that she is a legal parent, but she is a legal parent who has irrevocably contracted away the most important rights of legal parenthood. I think that’s what the court has done and I think it strange and problematic.

      • This legal ruling seems to have merged two ideas about contract — those involving labor contracts and custodial rights.

        I wondered if this ruling harkens back to older legal concepts of domestic relations. Contracting away rights wasn’t restricted to marriage — we also see it in labor contracts today. In the domestic sphere, apprenticeships and indentured servants (or their parents) contracted away rights. Parents contracted away the custodial rights of their children in indentures and apprenticeships.

        The idea that one could contract away rights, even parental rights, seems consistent with these understandings of domestic relations and indentured servitude. This ruling does contradict newer legal concepts involving parental rights and human rights. But that older Lockean understanding of contract and the domestic sphere might explain the intellectual underpinnings of it, especially if we consider the history of labor contracts.

        • I am a contract manager for stuff way unrelated to family law; but conceptually Tess is right. The 13th amendment though prevents people from enslaving themselves in contracts they can’t get out of. It’s my understanding that every service contract is suppose to contemplate the possibility that either party will back out and if so, outlines the procedures and penalties for backing out. Damages and the like. But there are not supposed to be damages for stuff like backing out of a promise to marry or backing out of a promise to reproduce with someone. So that breaking off an engagement does not come with a financial penalty for instance.

          • “The 13th amendment though prevents people from enslaving themselves in contracts they can’t get out of.”

            Contract law has absorbed some of the coercive legalities from “master and servant” law — the inability to strike, for example, or the inability to work for anyone else within a certain time frame.

            Although this case sounds intellectually confused, I would be cautious in underestimating the ability to sign away rights in our present legal system, particularly in any situation that can be characterized as a labor exchange.

            I don’t know if there was any sort of monetary exchange in this particular situation, or if it was simply an agreement between friends.

            • Although in regards to this case, it doesn’t look like money exchanged hands. So it wouldn’t be a labor case.

              • “Monica looks to a myriad of Wisconsin Statutes and cases to conclude that the PA cannot be enforceable. She argues that the PA violates Wis. Stat. § 48.913, which prohibits certain payments in an adoption, because the PA provides illegal payments to Monica and Cory.”

                Sorry – I should stop posting until I finish reading the ruling. I assumed no payments because they were friends, but the above suggests there were proposed payments.

    • Dan in Tennessee

      For once I agree with Marilynn. This is just a bizarre case. It is twisted.

      • Ha! I did not read your statement of agreement before I wrote my own below. Inconsistency in the law drives me nuts. That is one thing that I have generally agreed with Julie about.

        I like to say, if it’s good enough for this guy then let’s do it that way for everyone. Enforcing pre-birth contracts for parental custody and control of minors is loaded with implications.

  5. Wow, the court ruled the mother couldn’t keep her own child? She had to give her baby to the father and his wife because, why? Is it because he’s the father, or because she signed something that said she would give the baby to him? I didn’t think people could do that, even if they aren’t selling their baby to someone for cash, there is no right to conceive a child with someone you are not married to, and intentional unmarried conception should be a crime and the baby taken away. Now in this case, because the mother seems to be coming to her senses and realizing she was wrong, she should probably be allowed to remain the mother. But I don’t think that father should have any visitation until he serves some time and shows contrition.

    • I think in a nutshell because that’s the promise she made.

      It does matter that he is the legal father–because he doesn’t get his rights from her. That’s why it isn’t like buying a child. His rights come from the operation of law. She isn’t selling him his rights. But she is giving up her rights, which leaves him as the only one with rights. (This may not seem like a meaningful difference, but I think it might be important, at least to some people.)

      Maybe another way to say this is with or without the agreement he would have rights. What the agreement does is to reduce her ability to exercise her rights, and this certainly does benefit him.

      • But “giving up” her right to shared physical custody of their child, I would think would be a totally optional thing that she could change at any time since she had done nothing to have that automatic joint custody taken away. The fact that they are forcing her to keep that promise is really to the child’s detriment. If the child is not in danger when in contact with both then of course both is better.

  6. Dan in Tennessee

    Maybe I’m really missing something in this opinion, which I went back into and reviewed. If they used Monica’s egg and she gave birth to the child then is she really a surrogate? The court seems to be saying that the TPR section is not enforceable but that’s exactly what they have done. I agree with Monica’s argument that this agreement is against public policy (because it terminates parental rights before the child is even born!).
    Julie, you have said “I think in a nutshell because that’s the promise she made” (in response to John’s comment: why the mother couldn’t keep her child).
    If that’s what Wisconsin has decided, I believe, this goes against everything we know about parental rights in the United States. It just does not make sense to allow a person to surrender their parental rights (or sign a contract to surrender those rights at some unspecified future date) before the child is born.
    She’s not a surrogate just because we say she is or because a contract (entered into before the child was even born); she was a parent.
    I think the Wis. Supreme Court made its own public policy argument on this because they basically want folks to be free to enter into any kind of contract. They haven’t actually thought about the 14th Amendment liberty interest that they’ve trashed here.
    The concurring opinion did a lot of analysis about best interest of the child, but, again, there’s no discussion of TPR grounds –because they didn’t feel the need to get into that messiness.
    Wow, I’m glad I don’t live in Wisconsin today.

  7. “The parties discussed using a donor egg, but decided to use Monica’s egg because they could be sure of Monica’s family history, there was a higher chance of having multiples using a donor egg, and Monica preferred to use her own egg. Marcia expressed concern that Monica would have trouble giving up her biological child, but Monica reassured Marcia that she would allow the Roseckys to raise the child.”

    Reading through the opinion now. It’s fascinating. Two things strike me:

    1) Why did she prefer to use her own eggs? A transfer of an embryo is very easy and non-invasive.

    2) I wonder why she assured her friend she would be comfortable giving could give the baby up. From a psychological standpoint, for everyone, but particularly for the child, it’s a big mess.

    • Now see I’m blown away that Tess just said that. It’s the usual cast of characters yet here I am agreeing that she smells something suspicious in the statement that the mother had preferred to use her own eggs….sniff. Smells like more money? She agreed to deliver a baby that her friend’s husband conceived with some other woman; maybe she heard how much they were paying that other woman for her child and thought either “hey I want a piece of that action” or “gee that is a lot of money for my friend’s to afford, I could give up my baby with her husband because I don’t love him, and won’t feel bonded to his baby, and I’ll do it for for half the price”. Since you caught that bit about the payment in the documents that could be why she actually preferred to just give up her own baby. (use her own eggs is such a shifty way to put it)

      • I know I’m wondering about someone I have never met, so cannot really analyze motives. But I doubt it was pure profit motive. The two women have known each other since elementary school, and her friend first brought up the idea four years prior, when her friend was first in treatment for cancer.

        So, apparently these people have known each other for years, and were close friends. Problematically, they also know each other’s spouses. I was surprised that both husbands were ok with this situation. Two couples, who are close friends, all decide to have a child together. It presented the potential for an potentially emotionally fraught situation on multiple levels.

        • To be clear, one couple decided to have a child together and their spouses are sort of extraneous in the matter ultimately right? It all boils down to them two deciding to make a baby with each other. Maybe their spouses encouraged it, but really they are the parents and its all on them.

          • I’m really curious about the decision-making process. They used lawyers to create this parenting agreement, so they actually put some thought into this idea. I could understand it better if they decided to do this without much planning.

            But these two couples, who have know each other a long time, and, I’m assuming, socialize together and have a close relationship, all decided this was a workable situation.

            • my dear friend is infertile and was shocked when some friends and relatives offered to donate an egg to her for free. you’d be surprised how many people have bought into the fwrtility industrys propaganda. the courts did, after all. I’m not surprised , tess.

              • I think some people have an impulse to offer out of a sense of empathy before taking the time to carefully think about the implications.

                But it was the husband impregnating the best friend aspect of the situation that particularly took me aback.

      • Agreed about the shifty language, its part of the biased language of the court. cuz from a strictly factual perspective no one “used” monicas egg which implies someone took monica’s egg and did stuff to it when in fact it rrmained inside her as a part of her body always. there are other readons of course why this language is inappropriate but theu are not specific to this case- the conmodification.

        • Use was my word, and I meant it in the “use of an egg to create a embryo” as in ART. Or, use her egg to fertilize the embryo. IE- why did she not use another egg?

          And why repeatedly reassure the couple she not only wanted to use her egg to create the embryo, but that she would be comfortable giving up custody of the child?

          • I know what you meant and know you meant it harmlessly. It’s just that the fertility industry has been successful in getting people to separate what we view as the soul of a person from their body and body parts. People reproduce and if a woman’s egg is in or out of her body, if it is fertilized she, not her egg, she is in the process of reproducing. So we have just been kind of trained to adopt this pattern of thought that a woman’s egg outside her body is no longer her own and is no longer operating in support of her own reproductive function and it becomes second nature to say that someone used her egg – without realizing that what they are saying is that they are using her. What is she being used for? What is she doing for them? Reproducing. Whether she is willing or not she is still doing it and it could not be done without her. In the case of a willing donor she actually wants to reproduce and make offspring she signs a contract stating that she is “desirous of fertility treatment” It’s not like a person is going to reproduce herself and all she needs is some dna from another woman to use to fill in some blank facial features. Not your fault and I apologize Tess I’m just practicing paying attention to how society has adopted language that supports using people for their body parts I guess.

    • An alternate theory is that deep down monica really wanted to ave another baby but her husband didn’t. being such good friends with marcia she figured it wouldn’t matter if marcia raised the kid because she couldcome visit whenever she liked.

      • This is just me having psycho-analyzing — but when I read that her husband had a vasectomy, I’ve gotta admit that thought crossed my mind. That said, she could have come to the decision from a place of just wanting to help her friend. But I wondered what her subconscious was doing…

        But I understand I’m just gossiping & speculating!

        • Oh sure your right! Look at you! Dang she wanted another baby sure she did. Well now good grief. No I think your right.

  8. I’d like to point out the HUGE POSITIVE in this case that we are forgetting – the child’s mother came to her senses and changed her mind about abandoning her responsibilities to the child she created. I have to read and see if she did the right thing which would be try to have joint custody with the father or if she tried to do yet another selfish thing which would be try and cut the father out completely and try to pretend her husband was the kid’s dad under the old marital presumption fake left. If so she’d be stooping right to the exact same level that the father was stooping to to begin with by having her sign away her parental obligations so he could pretend his wife was the Mom under that same shifty marital presumption loophole or step parent adoption. The judge should read them the riot act tell them to behave like the adults they are and order them to cooperate jointly for the benefit of the child that has the misfortune to have such nimrods for parents. Hopefully a few months of collaborative child rearing would be good for them and for their child’s step parents at no cost to the kid.

    • you wish marilyn. but poor monica never,had chance in this biased court. did you see the part where the court apppinted Dr testified that visitation w monica was against the child’s best interests because monica wanted the kid to call her mom. ?!?!

    • “so he could pretend his wife was the Mom under that same shifty marital presumption loophole or step parent adoption.”

      Wow, are you sure that the marital presumption works in that direction? I thought it was only to assume the husband is the father of his wife’s children, I didn’t know it ever presumed that the father’s wife was the mother, that’s ridiculous because we know who the mother is. And the presumption only made sense when adultery laws kept people from having sex with other men’s wives. Now that people like you say that wives should be able to have sex and become pregnant with anyone they want, we can no longer presume that a husband is the father and we shouldn’t just automatically put his name on the birth certificate until we have verified his paternity. And we should also prohibit intentional unmarried conception so that we can again expect that husbands are the fathers of their wive’s children.

      • Why don’t we just do away with the guessing at things and consider it a positive right to be identified as the child of the people who made you whether they are super great people or not. Then we can deal with step two which is whether the child is in some kind of danger in their care. They should never stop being their child and become someone else’s child as if they are not who they really are. Renaming and re-identifying is unnecessary. If parents want to hide from their kids, they should change their names.

        • Well, if you are saying we should be doing paternity and maternity tests on all newborn children, I’d like to point out that is a much more radical and intrusive new rule than making 3PR illegal and dismantling sperm banks, which never should be allowed in the first place.

          • Really because the government already forces people who are suspected of being parents to take DNA tests to establish the right and proper identity of the parent. I’m just suggesting that we do it across the board for anyone claiming to be a parent for the child’s safety and to prevent people from selling their children. It’s already done for the good of the child in some circumstances why not just do it for every child and make it even? In fact here goes another one of my extreme statements: If DNA testing is just too damned invasive and violates people’s civil liberties then lets stop ordering DNA test’s in paternity suits and lets stop using genetic relatedness as a determining factor ever in parenthood. I mean either it is or it is not. Why waste billions of dollars on medical research on genetic birth defects and heritable disease for people we are not even sure are related to the kid’s they claim to be parents of.
            We do not already restrict people’s reproductive freedom.

            • There just has always been a very small amount of adultery resulting in occasional children that are not the husband’s, and no one has ever been able to really know for sure before. We didn’t even have reliable paternity tests until a few decades ago, but now we do. So I agree practices should change to reflect the new reality that paternity can’t be lied about any more. I agree with you, we should do paternity and maternity tests for every baby, I just wanted to point out that it was a radical change. Something that had never been possible in history, and is currently done only to identify the father when he’s denying he’s the father, suddenly being done for every baby, would be a radical change.

              Shutting down sperm banks would only restore what the laws were 25 years ago. Most clinics didn’t even offer heterologous IVF10 years ago, let alone single women, though other clinics were doing AID 50 years ago, illegally. Using a sperm bank or craigslist is not a “reproductive freedom” it violates the rights of the child and should be illegal again, like it was.

              • John – it’s cool when we reach middle ground. I know that you are only suggesting to roll back the clock not even 25 years, maybe 10 or 15. I’ll give you (for free) some reasonable arguments in favor of your position that are not radical religious based. Arguments that are grounded in economics.
                Every person born actually does have two very real parents that are responsible for their existence and society does expect those particular people to be accountable as parents to support their minor child until he/she reaches adulthood. Society has to require that of people. The government wants two identifiable sources of support for each person born, whether or not those two people are capable of custody is a separate matter because you can have a restraining order against you and still pay child support. So in defense of previous laws that prohibited insemination to single women (meaning not just unmarried but entirely un-partnered), doctors and mothers would actually be placing minors in a position where they would not have two identifiable sources of financial support to the detriment not only of the child but to society as a whole. The same can be said of single parent adoption. People are apt to raise the one night stand in defense of allowing insemination of single women however the analogy falls flat when you consider that the male in the situation is committing a crime if he’s aware of the child and fails to come forward and support him/her and if he knows nothing about the child then he has not been given the opportunity to support the child.

                Mating with a donor in all cases interferes with a person’s right to support from both parents while minor obviously. Limiting the process to just married persons does not actually protect the rights of the people born, not by a long shot, but it does offset the governments risk of financial liability by providing that second source of support and so does address broad concerns of bublic finance if not public health.

                The only way to mitigate public health concerns from mating with donors is to record donors as the parents of their own children permanently.

                The reason for changing laws to allow singles access to these procedures is that these are medical procedures performed by physicians and if you just look at it purely as a medical procedure it’s unfair to deny service to a person based on their marital status. However what we should all be questioning is whether assisted reproduction between two completely healthy individuals constitutes the practice of medicine. They’ve essentially taken assistance offered to people who are having difficulty conceiving and offered it to people who are totally healthy as an elective procedure like a nose job and they are making money off of match making services between donating parties who are patients also and their patients who want to raise children. These are reasonable challenges to the practice of assisted reproduction with donated gametes. I frankly find the prospect of getting rights for donor offspring more promising by focusing on obligating all people as parents of their own offspring. But fight the good fight John. It’s just a harder sell.

  9. Dan in Tennessee

    I wondered whether the court in a sense did read them the riot act by punishing Monica: “be careful about entering these types of contracts; we will enforce them.” Again I see this as an abuse of the law rather than upholding the law. I wish the fed supreme court would correct this

    • I have no problem with admonishing parents who get themselves into neglectful states of being but not so far as to actually prevent them from doing right by their children. I think it is a miscarriage of justice to interfere with a childs right to be cared for by the people who owe it to them for having put them in that dependent situation to begin with. Even when the parent is a bad person and restraining orders are called for it should not relieve them of still having to provide for the kid or still having to leave behind ss death benefits for them if they die while the child is still under 18. But what reason would contact with the mother not be in the child’s best interests? The best thing a child can hope for is not money or a perfect life, it’s time and willing attention from the people who owe it to them. Its not always possible for kids and if the mother is capable of it to prevent her from it because she foolishly signed a contract and now regrets it is I think quite short sighted and cruel. I do think the judge is interfering with the child’s rights, not the mother’s.

      • Children’s rights are also violated by intentional unmarried conception, when they are conceived into broken homes on purpose, instead of to couples legally committed to each other and in love with each other. It would be easy to shut down sperm banks and gamete sales and make arrangements like this one illegal, so that people didn’t feel pressure to use 3PR or offer their children to their friends.

    • Congress should correct this, it is commerce and they should regulate it by prohibiting intentional unmarried conception.

      • Dan in Tennessee

        There you go again John. Good luck trying to roll back 40 years of law from the United States Supreme Court and imposing your radical, socially conservative agenda. These guys can’t even pass a budget. Even if they did, through their bumbling, manage to pass such a bill, it would violate they Due Process Clause and the Equal Protection Clause of the 14th Amend.

  10. I don’t understand how this was viewed as a surrogacy and not an adoption.

    • excellent point lucreza, the dissent makes such an implication as well . well david was the biological father and monica and her husband never contested his paternity. but you are right- it should have been framed as a second parent adoption case. in which case it would have been a no brainer. but, the fertility industry has created a terminology all its own and has partnered in some cases with the legal field to adopt its biased and misleading terminology. after all, they are doctors so folks assume they are objective scientific professionals. the court here referred to the American Bar Association’s model act on assisted reproduction. the ABA model act in turn, was written in consultation with 2 major fertility services organizations. I am in the middle of writing a critique of this model act which i will send to the ABA. if anyone would like a copy, feel free to send me an email at hotmail.
      the primary bias is the use of the term Intended Parent juxtaposed with Gestational Carrier/ surrogate. already, from the beginning, by accepting this terminology, the court had made a judgement about who was a parent and who wasn’t- even before the proceeding took place.
      the most blatant evidence of this bias that really took me aback which i mentioned above- the court ordered a psychologist to determine the best interests of the child. the psychologist determined that visitation with monica was not in the child’s best interest because monica confused the child by having it call her “mom.”
      how absurd is that? monica is a mother, the previous court affirmed she is a legal mother, this court has not overturned that status- yet monica is faulted for having the kid call her a mother. the reason is that in the courts mind, they had already applied to her the term “gestational carrier”.
      the dissent is very well written in my opinion. you and everyone should read it.

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