Who's Your Mommy?

Posted by Jason Douglas on 01.05.2010

Science raises questions our parents never had to ask...

I recently read an article in the New York Times (http://www.nytimes.com/2009/12/31/us/31surrogate.html?_r=1&ref=todayspaper) about a court battle over legal rights for a gestational surrogate mother. The term "gestational" denotes that the woman in question had agreed to carry a child for another couple, and is not genetically related to the child. In this case, the couple is the woman's gay brother and his husband (they legally married in California), whose sperm was combined with anonymous donor eggs. The woman gave birth to twin girls, and subsequently decided she wanted to keep them. The judge found in her favor and awarded primary custody, stating that he saw no difference between this case and one where the surrogate was genetically related. That conclusion was crucial because there was a signed contract between parties, which was ruled invalid since it was found to be in conflict with New Jersey state law. This case raises numerous ethical and legal questions, none of which are easily answered. What establishes someone as a parent? When an agreement is struck in which one waives parental rights, are there ever circumstances where that agreement can be set aside? What role, if any, should gender play in establishing parenthood?

Not long ago, parental status was a simple matter. A woman who gave birth was obviously the mother, and her husband was the father. Their names were placed on the child's birth certificate, and that was the end of it. Births out of wedlock rose a great deal, but along came DNA testing to largely solve that issue. There are still some states with very archaic laws on the books that hold a husband responsible even if his wife cheated and the kid isn't his (which we won't get into because this is about people fighting FOR parental status), but overall legal parenthood has been a pretty straightforward concept. Enter surrogacy.

Increased infertility combined with the desire of many gay couples to experience parenthood has led to a surge in surrogate parent arrangements. These come in several combinations. Since anonymous contributions don't create any legal hurdles, we can exclude those from discussion. That leaves us three classes of people to consider: biological parents, contractual parents, and unrelated surrogates. Let's take a look at each using this case as an example.

Sean Hollingsworth, the brother's husband, is the only one with a direct genetic tie to these twin girls. He donated his sperm to be combined with anonymous donor eggs for the agreed purpose of being a father to the resulting offspring. At no point has he in any way indicated that he doesn't want to be the father of these children. Had he put the bun in the oven himself, there would be no question of his legal status as the father. Logically speaking, would it make any sense for the lack of sexual intercourse to somehow disqualify him from having the same parental rights he would otherwise be automatically entitled to? If a woman had sex with a man for the expressed purpose of having his child, she couldn't later deny him his paternal rights by simply deciding he's an unfit father. The court agreed on that point, declaring him the girls' legal father.

Donald Robinson Hollingsworth, the brother, has no genetic connection to the girls, nor did he ever carry them inside his body. In his case, the only link to the children he desperately wants to call his own is a legal one. Court documents (http://graphics8.nytimes.com/packages/pdf/national/20091231_SURROGATE.pdf) make it very clear that a contract was drawn up and agreed to by all parties. The contract was thrown out on a technicality, since in New Jersey a mother cannot legally give up her child before birth. It is very unfortunate that our legal system is reactive, otherwise a contract ultimately found to be illegal and therefore unenforceable wouldn't have been made in the first place. Legally speaking, he has no rights to the girls at all.

Angelia Robinson, the surrogate, has no genetic ties to the girls. She signed a contract making it clear she had no intent of retaining custody after they were born, and understood who would raise them. She carried them in her womb, gave birth to them, and that was supposed to be the end of her direct involvement with them. But she changed her mind and filed suit several months after their birth. Personally, I lack both a uterus and any desire to ever be a parent, so I'm having difficulty putting myself in her shoes. The ruling made no mention of her motivation for claiming custody, so by default I will assume maternal instinct. As I mentioned, she was found to be the legal mother, and the full details of the custody arrangement have yet to be sorted out.

So who is right here? On strict legal grounds, the ruling is correct only if you agree that a woman who lends her uterus to someone for procreation has the same rights to the resulting child as a woman who does it the old fashioned way. Should my logic about the biological father apply here? She had the necessary genetic material put inside her and carried a fetus to term. Then she went through giving birth to twins. In principle, is that so different than getting impregnated via intercourse? While the judge used a prior case to cite precedent and seemed reluctant to express much original thought in his ruling, there is a phrase called "the spirit of the law". The law cited to void this contract was made to prevent poor pregnant women from being exploited. Without the law, desperation might lead them to sign away custody of their yet to be born child in exchange for money or shelter. It should be noted that Angelia Robinson lived on property owned by her brother before and after the contract was signed, having moved to New Jersey shortly before medical procedures began. However, the ruling clearly states that this issue is not the basis for the judge's decision because state law already provides grounds to void the contract.

I find it appalling that a woman with no genetic ties to twins she agreed in writing to carry for someone else can simply change her mind after the fact. Can any infertile woman longing for motherhood but lacking the money for costly in vitro fertilization use this loophole to her advantage? What is the point of a contract if it can thrown out for subjective reasons? Ironically, without the now voided contract, she would have no proof that she ever gave birth to these girls at all, which is the only foundation for declaring them hers. I think the judge did his best to keep his own fingerprints off this case because it is something that should be decided by legislators. What if the couple donating genetic material had been straight? What if it was a known man and his wife, who had viable eggs but couldn't carry a child? Would the biological mother here have no rights because the babies came out of another woman's body? This judge declared a father based on genetics, but a mother based on the physical act of childbirth. Why the distinction? If your judgment tells you that biology and intent trump giving birth, then the ruling in the New Jersey case should be thrown out. So, what do you think?