Surrogate parenting refers to an arrangement
between a married couple who is unable to have a child because of the wife's
infertility and a fertile woman who agrees to conceive the husband's child
through artificial insemination, carry it to term, then surrender all parental
rights in the child. Often, the
surrogate mother receives compensation for her services. The final step in the process is typically
the father's acknowledgment of paternity and adoption, with his wife, of the
child. Through surrogate motherhood, a
couple desiring a child need not wait an indefinite number of years for an
adoptable baby, as generally happens at the present time. The married couple obtains a child who is the
husband's biological offspring- a child for whose existence both husband and
wife can feel responsible.
Surrogate parenting is highly controversial by
its very nature. Nevertheless, surrogate
parenting is attracting wide spread attention as a viable alternative for
infertile couples intent on having a child.
Contract surrogacy is officially little more than ten years old,
although surrogate mothering is a practice that has been known since biblical
times. In 1986 alone 500 babies had been
born to mothers who gave them up to sperm donor fathers for a fee, and the
practice is growing rapidly.
For this reason there are many questions and
doubts that arise from this subject.
Often there are many legal difficulties that come about with surrogate
parenting. In some states the contracts
that insure the infertile couple the baby of the surrogate mother mean
nothing. This, in turn, can cause huge
problems if the surrogate mother were to change her mind about giving up her
child. Who has the rights to the child
in this awful situation? Surrogate
parenting is a wonderful alternative for infertile couples as long as all
party's involved are educated on the subject and are fully aware of the pros and cons of this risky business
transaction.
Unfortunately laws on surrogate parenting
aren't very helpful. Increasing numbers
of surrogate custody cases are finding their way into the courtrooms. The most dramatic problem arises when the
surrogate mother decides she wants to keep the baby.Whether she decides early
or late in the pregnancy, at birth, or after the child is born, the ultimate
issue is whether she or the infertile couple have parental rights.
How is the law to respond to this kind of
problem? Normally people would agree
that a contract is a contract and therefore the infertile couple should be the
ones to receive the baby. Unfortunately
for some of us more sympathetic people this decision is not that simple. By changing her mind the surrogate mother is
showing maternal feelings that are surely not reprehensible. Although she has promised to give up the baby
her change of heart seems more understandable than dishonorable. After all how can a woman truly be expected
to know how it will feel to give birth
to a child and then have to give it up?
These are very good questions that tend to leave one undecided as to
which party's demand is justifiable and should be upheld.
Instead of deciding surrogacy issues on the
basis of the law and policy of the states, judges could look for guidance from
the U.S. Constitution. Constitutional
arguments can be made on both sides of the classic surrogacy dispute involving
the mother who changes her mind about giving up her child. Resolution of the constitutional issues will
depend ultimately upon assessing and weighing the various factors at
stake. Like decisions based on contract
and criminal law, constitutional decisions will take account of the party's
interests, the child's interests, society's interests, and the effectiveness of
legalization and regulation as opposed to prohibition.
Many Americans remained unaware of these
dramas, but virtually everyone in the United States became aquainted during
1987 with the plight of Mary Beth Whitehead and "Baby M". Mrs. Whitehead was a twenty-nine year old
house wife. She already had two
children, and decided she would be the surrogate mother for a couple by the
name of Mr. and Mrs. William and Elizabeth Stern. The Sterns were 40 and 41 years old. They had been married for 12 years and were
childless. Mrs. Stern had a mild case of
multiple sclerosis and was unable to bare any children.
Although Whitehead promised in the contract
that she would form no bond with the baby, she knew in the delivery room she
could not give up her child. Whitehead
ended up kidnapping the new born. The
case proceeded to a much-publicized trial entailing six weeks of testimony and
half a million dollars in legal bills.
Unfortunately many surrogate agreements end
with a tragic conclusion similar to this one.
These awful outcomes could be completely avoided if the law would
include in its many clauses, unconditional protection against any infringement
upon the contract between the surrogate mother and the infertile parents.
In order for surrogacy to work with its initial
intent, there can be no exceptions to this law.
Although there will be cases in which the enforcement of these laws may
be seemingly harsh and apathetic, it is the only way that this wonderful
alternative for infertile parents can rightfully continue, without potentially
ruining the lives of all parties involved, most importantly the child's.
Although the rights of the infertile couple
should be first and foremost, it is important not to overlook the grievances of
the surrogate mother. Preparation via
support groups and individual therapy should be offered to the surrogate mother
before the birth, not only to inform her of the enormous feat that lay ahead of
her, but also to prepare her to deal with the traumas that can accompany the
loss of a child. The importance of informing
the surrogate mother in full that the contract she is to agree to is not
reversible, is immense.
Not all cases involving surrogate parenting
result in battles for custody.
Ironically, in some cases the battle is to decide which party will be
forced to take the child as their own.
One example of this unusual incidence occurred
in 1982. Judy Stiver, a twenty-six year
old house wife agreed to bare a child for forty-six year old Alexander Malahoff
and his wife for a fee of $10,000 dollars.
The Malahoffs had wanted a child to strengthen their marriage, but the
couple separated during the pregnancy.
It was then found that the baby would be born with microcephaly- a
handicap that not only left the child with an abnormally small head (which is
usually indicative of retardation), but the infant was also left without a home
to be released into. The natural mother
said that she felt no maternal bond with the baby but she agreed to the
intravenous antibiotics to combat the baby's life-threatening infection. Malahoff, however, instructed the medical
staff to take no steps or measures to treat the strep infection or otherwise
care for the infant. Both sets of
parents then went on to renounce their responsibility for the child. The hospital obtained a court order
authorizing doctors to treat the baby, and the infection was cured. The baby, however, had no home to be released
into from the hospital and was consequently placed in foster care. The case became an example of the horrible
possibilities such arrangements can entail when a baby is born with a
handicap. This type of incident should
be avoided by making it infinitely clear in the beginning of the process of the
surrogacy agreement that, under no condition will there be a breech of
contract.
Although it may seem that all cases end in
tragedy, there are in fact many cases in which the end result is precisely the
way all deciding parties had intended it to be, with the child being placed in
a happy and loving environment. However,
despite these many success stories, there are still groups that advocate the
prohibition of surrogacy. One such group
is the National Committee for Adoption.
The NCA has been a consistent and outspoken critic of surrogacy and
wants it to be outlawed. They argue that
the availability of surrogacy would cut back on the adoption of existing
babies. Perhaps if infertile couples
were unable to employ a surrogate to have a child for them, they would go about
getting a child in some other way, one that would be much more beneficial to
society. They might decide to adopt a
child already in existence, or a child who will be born in any event and who is
in need of a home and family. Fulfilling
their parental urges in that way, they would perform an important service to
the child and to society.
Although this is a valid argument, for some
couples adoption seems unavailable. Many
couples today are waiting longer before attempting to conceive and thus are
older when they discover that they have a problem. Especially if they take time to undergo
fertility treatments before turning to adoption, they may find that they are
too old to be acceptable to conventional adoption agencies, which prefer
couples under the age of thirty-five.
Moreover, adoption is not as easy today as it has been in the past, and
there is a definite shortage of healthy newborns available for adoption in this
country.
Infertile couples would argue that the chance
to have a "normal" child, and a child as biologically connected to
them as possible, is not afforded by special needs adoption or even the
adoption of healthy newborns, and that although it benefits society more for
them to adopt an existing child than to conceive a new one, the same is true
for fertile couples, who nonetheless are permitted to reproduce without any
restriction by the state.
Surrogate motherhood is growing in popularity
because it meets the urgently felt needs of those who resort to it better than
any of the alternatives as they see them.
As a consentual arrangement it is as worthy of legal protection as many
others which, formerly suspect, are now taken for granted. Subject to reasonable regulation, it deserves
to take a place among the growing array of methods available to individuals for
the ordering of their own marital and reproductive lives. Doctrines fitted to other circumstances
should not be allowed to bar the legality or enforcement of surrogate
motherhood agreements.
Works Cited
Chesler,
Phyllis. Sacred Bond. New York:
Times Books, 1988.
Field, Martha
A. Surrogate Motherhood. Massachussetts: Harvard University Press, 1988.
Keane, Noel P.,
and Dennis L. Breo. The Surrogate
Mother. New York: Everest House, 1981.
Overvold, Amy
Zuckerman. Surrogate Parenting. New York:
Pharos Books, 1988.
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