Surrogacy And The Law

By MIKE MANNO

Last week we took a look at some of the legal problems that arise from embryos remaining in cryogenic storage after in vitro (IVF) fertilization procedures. This week I want to take a look at the other side of the issue: what happens to the babies born from donated genetic material and implanted into a surrogate mother.
There is a case out of California that is raising some eyebrows that has been appealed, but not yet accepted, to the U.S. Supreme Court. California, as you would imagine, has the most permissive surrogacy laws in the nation. About a half dozen states prohibit surrogacy contracts all together, about 16 recognize some form of surrogacy agreement, and about another 20 have no statutory or case law on the subject.
The case waiting on the court’s docket involves a woman, Melissa Cook, who in a 75-page surrogacy contract agreed to carry to term an embryo developed from unidentified egg donor and the unmarried “father’s” genetic material. As happens in these cases that go bad, disputes developed between the parties during the surrogate’s pregnancy.
The first problem was the fact that the surrogate was carrying triplets. The “mother” claimed that the father didn’t want triplets and told her to abort one of the fetuses. She claimed that he cited financial reasons; he later claimed it was for health reasons. She was pro-life and refused to abort and said she would keep the child he did not want.
She also claimed that the father, whom she did not know at the time the agreement was signed, was 50 years old, deaf, employed as a postal worker in Georgia and responsible for caring for his elderly parents with whom he lived. She further claimed that he did not have the ability or the resources to raise three children and that the facility that had arranged the surrogacy agreement had never done a home study to determine if the father was, in fact, capable.
The trial court awarded custody to dad and the appeals court affirmed, finding that the father had complied with all the requirements of the California law and, citing an earlier case, rejected mom’s argument that the state’s surrogacy statute was unconstitutional.
After some additional legal wrangling, dad took the three boys to live in his parents’ basement in Georgia where, according to news reports, the children became “of interest” to social workers there.
Mom filed an appeal to the U.S. Supreme Court and several pro-life organizations have joined as amici (friends of the court), including the Charlotte Lozier Institute, the National Association of Catholic Nurses, the Catholic Bioethics Center, the American Association of Pro-Life Obstetricians, and the Catholic Medical Association, perhaps attesting to the fact that this might be the most pivotal surrogacy case since the Baby M. case in 1986. That case was the first American case involving the validity of surrogacy agreements.
If you remember Baby M., it involved a surrogate mother for an infertile couple, Mary Beth Whitehead, who decided to keep the child after its birth. In the subsequent legal battle, the New Jersey courts ruled that she was the child’s mother but in balancing the “best interests of the child” awarded custody to the couple that had sought Whitehead’s services; additionally, and most importantly, the court held that the surrogacy contract itself was invalid as being against public policy, thus starting a nationwide debate on the issue, which led to the enactment of laws protecting surrogacy contracts.
Just as in the cases involving frozen embryos, where advances in science and technology have run ahead of our ethical development, courts tend to rely, not on the humanity of the child to settle these disputes, but on the terms of the surrogacy agreement, thus substituting the rights of the child to the tenets of contract law and statutory interpretation of laws whose purpose was never intended to settle such disputes.
The result was a mish-mash of rulings that sometimes defy explanation. They can produce cases that one might find on The Jerry Springer Show. Consider:
“Luanne and John Buzzanca agreed to have an embryo genetically unrelated to either of them implanted in a woman — a surrogate — who would carry and give birth to the child for them,” according to the court. The child born was named Jaycee. However, before Jaycee’s birth Luanne and John split. The question before the court was: Who is/are the parent(s) of Jaycee?
In a bizarre ruling the trial court held that Jaycee had no parents and was, in fact, an orphan. According to the reviewing court, “First, the woman who gave birth to Jaycee was not the mother; the court had — astonishingly — already accepted a stipulation that neither she nor her husband were the ‘biological’ parents. Second, Luanne was not the mother. According to the trial court, she could not be the mother because she had neither contributed the egg nor given birth. And John could not be the father, because, not having contributed the sperm, he had no biological relationship with the child.”
On appeal John claimed that the surrogate was Jaycee’s mother and correspondingly, the surrogate’s husband was the father. Fortunately the appeals court saw through the legal monkey business and ruled that Luanne and John were the parents: “Even though neither Luanne nor John are biologically related to Jaycee, they are still her lawful parents given their initiating role as the intended parents in her conception and birth.”
But the folly does not end there. In a New Jersey case a couple unable to conceive due to the wife’s infertility obtained an egg from an anonymous donor, fertilized it with the husband’s semen, and had it implanted into a surrogate. Before the child’s birth the father obtained a court order naming himself and his wife as the child’s parents which included a statement from the birth mother that she was relinquishing all rights to the child.
However, the local registrar refused to issue a birth certificate naming the wife as mother. The state then brought suit arguing that the only way for the wife to become the legal mother was through an expensive adoption process, a position that was sustained by the trial court.
During the appeal the couple argued that since there is a legal presumption that the husband of a woman who gives birth is the legal father, the reverse should be true that the wife of the father should be presumed to be the mother, especially since the birth mother had duly relinquished her rights to the child.
The appeals court ruled: “Nowhere in the [Uniform Parentage] Act does the presumption of parentage under Section 43(a) extend to a wife whose husband, while married, fathers a child with another woman, [cite omitted], or to a wife who simply acknowledges in writing her maternity of the child, [cite omitted]. On the contrary, where a husband has a child, born to another woman, while married to his wife, the wife may only establish a parental relationship with the child by adoption.”
The case went to the New Jersey Supreme Court which affirmed the appeals court’s decision when the justices split three to three. Three justices agreed with the couple that the wife should have the same rights as an infertile man and should be the presumptive mother, but the other justices argued that allowing a woman to hire a surrogate to make an end run around the adoption process gives special privileges to those who could afford the expensive surrogacy process.
Thus, a baby in New Jersey was born without a mother.
Hopefully the case now pending, M.C. v. C.M., will provide some guidance for these confusing cases. The Thomas More Society of Chicago is representing the amici parties in urging the court to accept the case and to strike down surrogacy laws. Ironically, the attorney representing the mother is Harold Cassidy, the same lawyer who represented Mary Beth Whitehead and had urged the New Jersey court to hold surrogacy agreements against public policy. Can he now successfully do that on a nationwide basis?
Stay tuned.