Surrogacy: A Legal and Moral Minefield

I have written plenty of articles now on the many problems and risks associated with surrogacy. On a regular basis we hear of new horror stories about the dangers and downsides of the surrogacy business. I have enough material on this to turn it all into a book – and that I will, so stay tuned!

But in the meantime, I will keep on turning out articles to serve as a warning here. As I have said so often already, the desire for a child is of course normal and natural, but the question is, how far should we go to achieve these things? There are some dark sides to Assisted Reproductive Technologies (ART) in general and surrogacy in particular which we all must be aware of.

In this piece I want to look at the various legal complications that can arise here. Often it involves a woman who has carried another’s baby, but she changes her mind and decides she doesn’t want to relinquish the baby. Examples of this abound, and we see no decline in it taking place. Indeed, it just seems to get worse and worse.

Even from the early days of surrogacy we had massive problems with this. The Baby M case in America in the 1980s is one of the better-known cases in point. The baby in question was removed by the police from the natural mother, Mary Beth Whitehead’s breast and handed over to Elizabeth Stern whose only claim was to want a child of her own.

Mary Beth was allowed to visit Baby M for two hours twice a week. At first, Baby M, smelling the mother’s milk, nuzzled at Mary Beth’s neck, but the court-appointed chaperone wouldn’t let Baby M nurse, lest that create a mother-child bond!

Such cases continue to happen around the world. Consider this case from England back in 2011:

A woman who broke a promise to give her surrogate baby to another couple can keep her baby, a court says. The welfare of the six-month-old girl, known only as T, “requires her to remain with her mother”, said Britain’s Justice Baker, explaining the decision he has made following a hearing in Birmingham last month.

“In my judgment, there is a clear attachment between mother and daughter. To remove her from her mother’s care would cause a measure of harm. It is the mother who, I find, is better able to meet T’s needs, in particular her emotional needs,” Judge Baker said.

The judge said the risks of entering into a surrogacy agreement are “very considerable”. “In particular, the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child.”

Or consider this 2014 case from England, with the headline: “‘The bond with my baby was stronger than the bond with my mum’: Daughter agreed to have her mother’s baby as a surrogate – but then changed her mind and decided to KEEP the child.” The tragic story begins like this:

A family has been torn apart after a woman agreed to have a baby for her own mother and then backed out of the surrogacy arrangement while pregnant. Leanne Stanford originally made the extraordinary offer after her mother Judith Roberts miscarried the IVF baby she was expecting with her new husband at 21 weeks. It was while leaving hospital that Miss Stanford told her mother: ‘If you want to try again I’ll help you. I’ll be a surrogate for you if you want me to.’ She became pregnant at the first attempt using sperm from her stepfather Mark Roberts – and gave her 50-year-old mother the news in a gift box with a card.

Mrs Roberts was thrilled but her delight turned to dismay after the 26-year-old had second thoughts following a scan at mid-pregnancy. Miss Stanford, a single mother who has a four-year-old son from a previous relationship, consulted a solicitor and as the surrogacy agreement was never legally formalised she was free to back out and did so by sending a letter to her mother. She said: ‘What it came down to was that the bond with my baby was stronger than the bond with my mum.’

And now with things like “homosexual marriage” and “homosexual families” the complications and complexities are spiralling out of control. Another case from England from 2017 illustrates the many moral, legal and social problems that can arise here:

A surrogate mother has lost custody of her child after a court ruled he would be better placed with the gay couple who arranged for her to have the baby. A senior judge said that the child’s “identity needs as a child of gay intended parents” would be better fulfilled if he lived with the couple.

The woman signed a surrogacy agreement with the men, who she had met online, and travelled to Cyprus in September 2015 to have an embryo transferred. But the two families fell out and the woman and her husband changed their minds about giving the child up.

She did not tell the men about the birth for more than a week after it took place last April. The male same-sex partners began legal proceedings and last year a High Court judge ruled that the child, now 18 months old, should live with them.

A much more recent case from the UK shows how complicated and messy things can get. Even the convoluted headline shows what a social and legal nightmare this can become: “Surrogate mother is sued by gay father who claims she ‘stole’ his baby boy by barring him from birth and refusing to hand over the child when his partner who was in his 70s died”. The story begins:

A gay father who claims a woman stole his baby is suing the surrogate mother after she barred him from the birth and kept the infant. The man, aged in his 30s, and his partner, in his 70s, met the woman through a surrogacy agency. She agreed to have sperm implanted from the younger of the two, but kept the baby when the man’s older partner died.

When she went into labour, the surrogate told medics not to let the biological father near her, The Sun reports. A source told the paper it was rare for surrogates to refuse to give away a baby after birth. ‘She took the view the child was no longer going to a loving couple,’ the source said. ‘She formed a bond with him when pregnant and thinks she’s doing the right thing.’

The father is suing after claiming the woman broke the terms of their surrogacy agreement. But UK law always treats the surrogate as the mother, affording her the right to keep the child. According to a government website, contracts regarding surrogacy are not protected in the same way as others.

Wow, what a shocker of a case. Sadly there are now many such cases, and they are heartbreaking in the extreme for all those involved. One thinks of the famous case of the two mothers and the two babies – one dead and one alive – brought before King Solomon in Ancient Israel. The wisdom of Solomon was needed then, and it still is today.

Some surrogacy legislation may allow for a cooling-off period. But this will not render womb rental harmless – indeed the opposite may be the case. It may further subordinate responsibility to wilfulness, and further encourage thinking of children as mere material goods.

An older case in Australia illustrates some of the inherent legal and social dangers of surrogacy. In May 1998 the Family Court ruled that a one-year-old girl be returned to her birth mother after a surrogacy arrangement between long-standing friends broke down.

The judges found that baby Evelyn should live with its birth mother, even though she enjoyed a happy life with her biological (sperm donor) father and his wife. Following the court ruling, however, the infertile couple has said it will not give the baby back to its surrogate mother, and will appeal to the High Court.

The argument that banning surrogacy will just drive it underground doesn’t wash. It takes a long time to make a baby. As American commentator Maggie Gallagher put it:

Surrogate motherhood is not a quick and private transaction like scoring coke. . . . Surrogate motherhood can prosper only if society creates special institutions to foster its growth. And what those special institutions come down to is this: a guarantee by the government that it will strip a woman of her parental rights, not because she abandons her child, but because she is unwilling to do so.

This is just one of a number of reasons as to why at the very least we should go slow on all things having to do with surrogacy. Whether it is commercial surrogacy (where money exchanges hands), or so-called altruistic surrogacy, the many problems and complications found here – and many of them seemingly insurmountable – means we should call a much-needed time out.

Too much damage is already taking place, and too many lives are being turned upside down.

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4 Replies to “Surrogacy: A Legal and Moral Minefield”

  1. In Genesis 30, Jacob testily reminds an impatient, jealous Rachel that he is not God – it is the LORD who opens the womb. Despite this confession, Rachel goes ahead with what was then a well-attested legal, ancient form of surrogacy – using the reproductive services of a wife’s personal female slave. Not satisfied with this form of reproductive redress, Rachel acquires her nephew, Reuben’s mandrakes, only to discover that, in her case, this fertility treatment apparently doesn’t work!

    As Senator Brian Harradine put it in his valedictory speech to the Senate, just because we can do certain things, it doesn’t necessarily mean we should do them.

  2. As always, Bill, well expounded. Sadly, it may take many more cases like the above to unfold to bring home to self-centred adults an awareness that children are entitled to a far higher ‘dignity’ than being brought into existence simply as commodities for the gratification of some adults.

  3. What was once unthinkable has come to be and continues to slide down Francis Schaeffer’s “slippery slope.” Modern medicine may often be a marvel, John Wigg wrote above, just because you can do something doesn’t necessarily mean you should. IVF is playing God and surrogacy is hardly a part of God’s plan. Sheesh, what did childless couples ever do without modern medicine to give them answers that seem quick and easy but are dicey, at best? Buy a clue people, it’s called ADOPTION.

  4. Another associated aspect is the market for in-vitro fertilized eggs. Apparently there are discussions for legalizing the sale but I would be hugely surprised if there is not already a black market just as with sperm donations and aborted baby parts. Don’t be surprised, as we go into the future with fewer and fewer people knowing who their close relatives are, that there will be an increase in genetic disabilities. Of course many babies will simply just be aborted but most will go on initially undetected and of course no-one is permitted to discuss what will happen if homosexuals are freely allowed to get their hands on children.

    There are very good reasons why God’s laws are the way they are. As smart as we think we are, He is many, many orders of magnitude smarter. God’s plan including the fifth commandment to “honor your Father and Mother” , the sixth to “not kill” and the seventh to “not commit adultery” are not there for no reason. In our modern society we have these and the rest of the commandments being broken, not just as a matter of choice but in many instances, as a matter of government policy. Why should nations, including Australia, that do these things not be held accountable?

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