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In an odd case involving surrogate motherhood arrangements, a
Utah couple challenged the state's law that renders surrogacy contracts
unenforceable. The state passed the law in the late 1980's, actually
following the pattern set by the majority of states that have laws on the
books regulating surrogacy. The law made it illegal to pay surrogates a fee
beyond reasonable expenses because payment of a fee for the waiver of
parental rights constitutes the purchase and sale of children, violating the
13th amendment to the Constitution. (This is analogous to the way the law
treats adoption cases, in which it is illegal to pay birth mothers to give up
their children for adoption.) The law further made surrogacy contracts, which
force a woman to give up her child against her will simply by force of
contract, void and unenforceable. This latter provision is what was under
challenge by the couple, as they were being denied legal parenthood status
and had to "adopt" the twins (born almost 3 years ago) if they were to have
custody.
At issue here is the tricky question of "who is the mother" in cases of
gestational surrogacy, in which (by definition) the surrogate is not
genetically related to the child she is carrying. The Utah couple - who
donated their own egg and sperm - assumed that it is the genetic connection
that establishes parenthood due to the fact that such a tie constitutes an
important biological relationship to the child. However, that is not the only
biological connection that counts. What occurs in the womb has a formative
influence on who the child becomes; therefore, the gestational surrogate is
more than a "human incubator." One can argue that at the time of birth, she
has the greater "sweat equity" in the child she is carrying. A gestational
surrogate's intent to keep the infant she has carried - a desire that may
arise as a result of her having bonded with the child - should not be given
any less weight than the corresponding intent of the genetically contributing
parents. Usually this aspect of the law is invoked when there is a dispute
between the contracting couple and the surrogate concerning rights to and
custody of the child. What makes this case unusual is that there was no
dispute over who has rights to the child. The surrogate willingly turned over
custody of the child to the contracting couple and relinquished any claim of
maternal rights to the child. So the case should be closed, right? Not so
fast, said the state.
The state did not recognize surrogacy contracts as valid and saw the child's
mother as the woman who gave birth and (if married) her husband as the
father, consistent with the long-standing presumption of parenthood. The
intent of the law that makes these contracts unenforceable is to protect the
surrogate in cases in which there is a dispute over rights to the child. But
such a dispute did not exist here! The state's actions are consistent with
the letter of the law, but since the surrogate willingly gave up rights to
the child without a contest it seems silly to require that the contracting
couple formally adopt the child. If a dispute had arisen, then the law making
the contract void would be invoked, and in my view correctly so.
The Utah law was designed to discourage surrogacy arrangements, and in my
view justifiably so, by making payment to surrogates illegal and protecting
surrogates' rights in cases of dispute. It was not designed to stop
transactions such as this one, where there was no fee illegally paid to the
surrogate and no dispute over parental rights. Though from a Christian
world-view I would suggest that surrogacy violates the Biblical pattern for
procreation, it is not clear to me that the law should intervene in cases
such as this one.
In the end, a federal judge struck down the portion of the
law which recognized only the surrogate as the parent. Lawmakers have
been working on a new surrogacy law. For more information see:
http://www.sltrib.com/2003/Apr/04162003/utah/48379.asp and
http://www.sltrib.com/2003/Jul/07172003/utah/76058.asp CBHD
Scott B. Rae,
PhD is Professor of Christian Ethics, Talbot School of
Theology, Biola University and Fellow of The Center for
Bioethics and Human Dignity.
Copyright 2003 by The Center for Bioethics and Human
Dignity
The contents of this article do not necessarily reflect the opinions of
CBHD, its staff, board or supporters. Permission to reprint granted as long as The Center for Bioethics and
Human Dignity and the web address for this article is referenced.
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