What a mess. What a God-awful mess the new reproductive technologies in general—and commercial surrogacy, in particular—are making of family life. What a legal, emotional, and moral mess.
The Center for Bioethics and Culture asked me to sort out one such circumstance from Tennessee that went all the way to the state Supreme Court–and it still isn’t resolved. From, “A Case of Surrogacy’s Gordion Knot:”
Here are the facts: Unmarried Italian citizens—”L.G.” the “intended mother,” and “A.T.” the “intended father,” paid more than $73,000 to pay for “expenses” and “pain and suffering” to “J.J.E.,” the surrogate. She agreed to be artificially inseminated with A.T.’s sperm, to gestate any babies conceived, and then surrender the child and her parental rights to the intended parents. In other words, the baby would be the biological child of the intended father and the surrogate mother. In Tennessee such contracts are called “traditional surrogacy…”
After birth, mom was asked to nurse baby–not part of the contract. That seemed to have bonded mother and child and she decided not to give up her rights. Litigation ensued:
Tennessee law doesn’t explicitly govern this particular circumstance–and so the court applied the law of private adoption, a reasonable approach.
The Court ruled that the mother’s waiver of parental rights before birth was invalid. Since she never waived her rights after the baby was born, the situation resulted in a legal, emotional, and parenting mess:
Cutting through the legalese at the end of the decision’s winding road, here how the whole mess all sorted out:
– A.T., the intended and biological father, is a legal parent of the child, with full rights of visitation, custody, and obligations of support.
– J.J.E., the surrogate and biological mother, is also a legal parent with full rights to pursue custody, visitation, and obligations of support.
– Custody, visitation, support, and other such issues will be made in the child’s “best interests,” not based on the terms of the surrogacy contract.
– The intended mother, L.G., is a legal stranger to the child.
– Surrogacy contracts are enforceable in Tennessee generally, but clauses that violate public policy, as occurred here, will not be enforced.
It is also worth noting that the baby is a U.S. citizen, based on both place of birth and citizenship status of the legal mother. And what about J.J.E.? What the child will think of all this later in life—and how it will impact his or her wellbeing—is anyone’s guess. But hey, the lawyers probably did well.
I conclude:
The ruling all but begs the Tennessee Legislature to create explicit statutes and regulations to apply in surrogacy situations—which range in the country from legal bans on commercial surrogacy to anything goes.
Good luck with that. Surrogacy itself is the problem, with infinite possibilities for creating discord, chaos, and betrayal. Oh what a tangled web we weave when deploying surrogacy technologies to conceive.
Just because we can do some things technologically, that doesn’t mean we should.
Reprinted with permission from National Review Online