There Are No Easy Calls in Surrogacy Cases

What Women Really Think
Dec. 14 2009 2:18 PM

There Are No Easy Calls in Surrogacy Cases

There are no heroes in yesterday's NYT story about "Building Babies ," and there no villains, but there also didn't seem to be any easy calls to be made about who should or shouldn't be parenting the children created by the surrogacy arrangements in the cases profiled. One surrogate mother was able to remove the twins she bore from the couple who paid for the sperm and egg donations as well as the implantation procedure. Another has gained partial custody to twins she bore for her brother using his partner's sperm. In another case, it's child welfare authorities, rather than a surrogate, who are concerned that a man who arranged the birth of another set of twins by donations and surrogacy isn't a capable parent.

The question at the bottom of the first two cases is whether or not a contract to bear a child by surrogacy is enforceable, or should be. The third case is a question of whether the person who arranges a surrogate birth is automatically a parent-what rights does he or she have, and how difficult should they be to terminate? The one thing that stands out here, even amidst reasonably unbiased reporting, is that none of these cases can possibly be easy calls. If the man who arranged the birth of twins was clearly incapable of parenting them, it would be possible to terminate any and all rights he had to any children, no matter how he was or wasn't biologically related to them. If, in either of the other cases, it was obvious which set of competing parental figures should triumph, it's not likely they'd be news.

Advertisement

The fact that courts in Michigan might reach a different decision than courts in California might seem to argue for the creation of some uniform law concerning surrogacy, but some relationships are difficult, if not impossible, to legislate into black and white. Courts remain unsure what rights a "arranging" parents have to a child created through donation and surrogacy or a surrogate mother with no biological relationship has to the child she bore for good reason-society isn't terribly clear on that, either, and there are no easy answers. But if we try to impose simpler solutions over complex issues before they're fully worked through, the result will be cases like those of the nonbiological fathers profiled by the NYT Magazine several weeks ago-courts and judges who want to find and do the right thing, hampered by laws that interfere with their ability to do so.

The standard in any case where a child is involved centers around the welfare of the child, not the parent, whether biological, surrogate, adoptive, or otherwise. Concerned judges and advocates should stay free to consider every factor in deciding who will raise the children created when unusual surrogacy arrangements go wrong, at least until the dust settles around the questions. If a surrogacy contract is legislatively enforceable or unenforceable, we may be taking away a court's best chance to make a difficult case turn out right.

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Weigel
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
  Business
Moneybox
Sept. 19 2014 6:35 PM Pabst Blue Ribbon is Being Sold to the Russians, Was So Over Anyway
  Life
Atlas Obscura
Sept. 19 2014 1:10 PM Ascension Island: Home of Lava Fields, a False Forest, and the World's Worst Golf Course
  Double X
The XX Factor
Sept. 19 2014 3:07 PM Everything Is a "Women's Issue"
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 5:03 PM White House Chief Information Officer Will Run U.S. Ebola Response
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.