The rise of modern medical technology has allowed infertile individuals to become parents through a process known as surrogacy. A surrogacy parenthood takes place when either parent is unable to have a child and, therefore, hire a “surrogate mother” to conceive the child. The child which is conceived will be biologically related to one of the parents and will be biologically related to the surrogate mother.
When a surrogate parenthood goes as planned, the biological surrogate mother relinquishes her right to the child so that the second parent (in this case the wife) may adopt and claim rights over the child. However, due to the contemporary rise in medical technology, the laws in every state addresses surrogacy and parenthood with different terms and conditions. Children who are conceived through a surrogacy parenthood are sometimes caught in custody affairs when the surrogate mother refuses to give up her parental rights. Courtrooms across the nation have allowed surrogate mothers to claim rights over the surrogate child, claiming that surrogate contracts are illegitimate.
Surrogacy parenthood laws are relatively new with the first surrogate court case dating back to the 1980’s. In the William and Elizabeth Stern case, their surrogate parenthood contract was deemed unlawful and the biological surrogate mother was granted rights over the child. However, there have been cases where the surrogate mother has been denied any form of parental right over a child that she conceived.
Most common forms of surrogacy
The surrogacy laws are different in every state and are complicated by the different forms of surrogacy that exists.
- Traditional surrogacy: When a female is unable to use her eggs to conceive a child, a surrogate mother can provide her eggs to help the couple achieve parenthood. This parenthood procedure takes place when a surrogate mother’s egg is inseminated through a process known as intrauterine insemination (IUI). During the IUI process, the donor egg is inseminated with sperm provided by the biological father or a donor. The child that is conceived will be recognized as a child that belongs to both surrogate mother and father.
- Gestational Surrogacy (In Vitro fertilization): This is a common procedure for individuals who wish to have a child who is not biologically related to the surrogate mother. Individuals may choose to have an in vitro fertilization when the biological mother has fertile eggs, but cannot undergo a pregnancy due to health concerns. In ‘in vitro fertilization’ the mother's eggs are treated with the biological father's sperm in a laboratory. Once an egg is fertilized, it is transferred to the surrogate mother's uterus. Since the procedure requires the DNA of both parents, the surrogate mother will not be biologically related to the child and will not be capable of establishing parental rights over the child after he or she is born.
Pros and Cons:
The con side to surrogacy is that the parents who are seeking this type of service will only be related to one spouse while the other will have to seek parental rights through an adoption procedure. In addition, you may be required to ‘share’ the child if the biological surrogate mother is able to establish parenthood rights over the child.
The pro side to surrogacy is that it helps infertile or unhealthy individuals achieve parenthood. Every individual has the right to raise a child in the United States and everyone should experience the joy of parenthood. If you are unable to conceive a child because of health concerns a surrogacy may be right for you.
What is a surrogate parenthood and is it right for me?
A ‘surrogate parenthood’ takes place when a man or woman contract a surrogate mother who agrees to carry a child in her womb for another person or family member. States have different jurisdiction over surrogate parenthood and in some states, it is illegal to engage in surrogate parenthood contracts. States have declared that surrogate parenthood contracts may lead to the selling of children which is why the practice is considered immoral and illegal by different courts across the nation. Conceiving a child for another person is not illegal, however, exchanging a child for money is a grey area in the law.
In addition, some courts have established a different jurisdiction of who can and cannot claim rights over a surrogate child. In court cases surrogate mothers have claimed visitation and custody rights over the child despite having signed an agreement. In New Jersey 1985, William and Elizabeth Stern established a surrogate parenthood contract with a woman named Mary Beth Whitehead where she would conceive a child through artificial insemination. When Elizabeth Stern realized that her pregnancy could be complicated by multiple sclerosis, the Sterns contacted the Infertility Center of New York where they agreed to play Mary Beth $10,000 for the surrogacy procedure.
The contract entailed that after birth, Mrs. Whitehead would give up her parental rights over the child to allow the family to claim full rights over the child. However, 24 hours after surrendering the child, she found herself at the Sterns footsteps requesting custody over the child.
Concerned that she would take her life, the Sterns allowed Mary Beth to keep the child for a week. Once it was apparent that the child was not going to be returned, the Sterns filed a complaint to the Court. Upon notice of the Court order, Mary Beth refused the $10,000 payment and fled to Florida with the child she named Melissa Whitehead. After a long chase to Florida, the law enforcement agencies forcibly removed the child from Mrs. Whitehead's grandparents’ home and was immediately returned to the Sterns.
The New Jersey Family Court ruled that the best interests of the child would be to allow William Stern custody over the child while allowing Mary Beth visitation rights. Despite having signed a contract, the Court found that a biological mother has certain unalienable rights over her biological child.
The Court Decision: Surrogacy Contract Unenforceable
The contract carried out by the Infertility Center of New York was demeaned unenforceable in the eyes of the court as it violated many rights awarded to biological mothers under current New Jersey state law. The Sterns were unable to gain full custody rights because the family law states that custody rights are established after consideration for the child's best interests. Mrs. Whitehead has inherent rights that allow her the same rights as Mr. Stern in a family court of law. The court found that the contract was unenforceable and invalid for the following reasons:
- The court frowns upon the exchange of money for adoptions through private arrangements. The law in New Jersey prohibits the ‘selling of babies’ so when the court found that the money would be used in relation to the adoption, it deemed that the contract was unlawful.
- The court found that terminating Mrs. Whitehead's rights over her biological child would be unconstitutional unless the prosecutors were able to prove that she is unfit to mother the child. In addition, for a formal adoption to occur, Mrs. Whitehead would have to voluntarily denunciate her parental rights to the Division of Youth and Family Services (DYFS). Mrs. Whitehead was not deemed or charged as unfit to mother the child and did not surrender her child to an agency so the court was unable to terminate her rights to visitation and custody.
- The court found that the contract contained no provisions that would allow the surrogate mother to revoke her decision to surrender her custody rights. The law provides that such contracts are unlawful.
The law states that the best interest of the child is served when both natural parents are present in the child's life. By giving both Mr. Stern and Mrs. Whitehead the same parental rights over the child, the Sterns were unable to force upon the provisions of the contract which would take away Mrs. Whitehead's constitutional rights over her biological child. For the law to terminate a biological mothers rights over her child, the plaintiff will need to prove that the mother is unfit to mother the child. Since such allegations were never brought into court, Mrs. Whitehead was able to retain her rights over her child.
The court also establishes that there is a big difference between adopting a child and paying for the services to conceive a child. Due to the use of money to incentives the creation of a child the court found that Mrs. Whitehead's circumstances may have been exploited. In violating the state and public law, the surrogacy contract could not be enforced. Overall, the contract disregarded the ‘best interests of the child’, so the court established that both parents should remain part of the child’s life.
The Stern and Whitehead custody case was the first case in American history that brought surrogacy discussions into the courtroom. Since then, states have established different jurisdiction over surrogate parenthood matters allowing certain surrogate contracts to be honored under the law. In contrast, other states have made it illegal to engage in surrogacy contracts. The laws that guide surrogate parenthood are different in every state which is why you are encouraged to speak with a law professional before engaging in a surrogate parenthood contract.
California: Surrogacy Contracts are lawful
The sunny state of California has one of the more complex surrogacy parenthood laws that differ from almost every other state. Unlike New Jersey, California’s take on surrogacy laws deems that surrogacy parenthood contracts are lawful even when there is an exchange of money. Superior Court Judge Richard N. Parslow established that the exchange of money in surrogacy parenthood contracts is legal as it is used to compensate a surrogate mother for her pain and suffering. The legality of surrogacy parenthood contracts has allowed families to gain full custody over children conceived through in vitro surrogacy procedures in lieu of an accusation or complaint.
In 1993, the Orange County Court found that Anna L. Johnson could not claim visitation or custody rights over a child that was conceived through an in vitro surrogacy procedure. In New Jersey, Mrs. Whitehead was originally denied rights over the child but was later able to appeal the court order granting her visitation rights over the child. The Johnson v Calvert case (1993) established that children born through in vitro procedures (otherwise known as gestational surrogacy) are not biologically related to the surrogate mother. Gestational procedures differ from traditional surrogacy procedures in that it produces a child that is not biologically related to the person carrying the child in the womb. The child is in turn related to the individuals that provided the egg and sperm. In such procedures, a fertilized donor egg is implanted into the host parent meaning that the child will not receive the DNA of the surrogate parent.
Due to the circumstances, Anna L. Johnson was unable to claim rights over the child she conceived. Since there was no biological link between the child and the surrogate mother, the court ruled that Anna had no business with the child. The court ruled that in the best interests of the child, two mothers would be disruptive especially in Anna’s case as she held no biological connection to the child. As Judge Parslow put it, Anna Johnson was a ‘genetic stranger’ and was, therefore, denied the right to visit the child she carried inside for nine months.
The surrogacy laws that guide the state of California differ greatly as it is one of the few states that does not look down upon surrogacy contracts. The state of California will typically respect surrogate parenthood contracts. However, individuals that undergo a traditional surrogacy will encounter different types of issues if the biological surrogate mother wishes to remain a part of the child’s life. Whatever the case may be, before you engage in a surrogate parenthood contract, you are encouraged to speak with a local state attorney. Making sure that your contract is lawful is the first step in ensuring that the problems that arise in the future are backed by a law-abiding agreement.
Surrogacy laws are very new and with the rise of technological advances we can only expect more complicated court cases that involve child custody and visitation rights. When child custody is contested in a courtroom, it is important to keep in mind that the court will base its verdict on what is deemed to be in the best interest of the child. If you need legal assistance please contact the San Diego Family Law Attorney at 619-610-7425.
