Posted on 11/01/2014 3:50:42 PM PDT by NYer
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.
Case in point: A commercial surrogacy contract was litigated in Tennessee all the way to the state’s Supreme Court—which was forced to sort out the chaos that resulted from the purchase of a conception, gestation, and birth. Despite going all the way to the top, the ultimate decisions about the child will require still more litigation.
Like I said: What a mess.
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,” in contrast to circumstances in which the surrogate mother is not biologically related to the baby to which she gives birth, which is known as a “gestational surrogacy.”
J.J.E. became pregnant after being inseminated. She carried the baby. Shortly before, and pursuant to the surrogacy contract, the parties applied to the Juvenile Court to terminate the parental rights of J.J.E., which was granted.
Then, J.J.E. gave birth to L.L.G. But rather than the intended parents immediately taking the baby, as had been planned, she was asked to breast feed the child for a week to promote the baby’s health—a wet nurse “service” not provided for in the surrogacy contract. Apparently, that intimate act changed the mother’s heart. This is not surprising given that women bond emotionally with the babies they carry and nurse—whether biologically related or not—and J.J.E. was the child’s biological mother. J.J.E. hired a lawyer to get out of the deal and the lawsuits flew.
Tennessee permits surrogacy contracts generically, but has not created a specific statute or regulations that governed this situation. After wending through lower courts, the Tennessee Supreme Court, over 39 pages, applied different sections of statutory and state constitutional law—akin to untangling a Gordian Knot—and reached a reasonably cogent legal conclusion.
The decision balanced on whether J.J.E. could waive her parental rights before L.L.G.’s birth. Since Tennessee’s surrogacy statute didn’t say, the court applied adoption law in finding that such a waiver violated Tennessee public policy, and hence could not be enforced even though that course was specifically required by the surrogacy contract. In other words, the situation was analyzed as if it were a private adoption—a reasonable approach.
J.J.E. had not signed away her parental rights after birth, as required by Tennessee adoption law. That meant that the only way she was not the legal mother would be if there were reasons to involuntary stripped of her parental rights, such as in an abandonment situation. Since there was no record that could be applied on that question from the lower courts, J.J.E. remained the legal mother of her baby.
From the decision:
Absent a basis for involuntary termination [it] may only occur if the Surrogate executes a surrender or consents to a petition for adoption. Furthermore, unless and until termination of the parental rights of the Surrogate occurs, she will retain both the rights and responsibilities associated with legal parenthood.
The case was returned to the Juvenile Court for further proceedings.
Cutting through the legalese at the end of the decision’s winding road, here how the whole mess all sorted out:
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.
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.
Note: In re Baby et. al, Supreme Court of Tennessee at Nashville, No M2012-01040-SC-R11-JVhttp://tncourts.gov/sites/default/files/inrebabyopn.pdf
Reprinted with permission from the Center of Bioethics and Culture.
Award winning author Wesley J. Smith is a Senior Fellow in Human Rights and Bioethics at the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant for the Center for Bioethics and Culture.
He is the author or coauthor of eleven books. hundreds of articles and opinion columns on issues such as the importance of being human (human exceptionalism), assisted suicide, bioethics, the morality of human cloning, the dangers of animal liberation, the anti-human elements in the radical environmental movement, legal ethics, and public affairs. Smith is often called upon by members of legislative and executive branches of government to advise on issues within his fields of expertise. He has testified as an expert witness in front of federal and state legislative committees, and has counseled government leaders internationally about matters of mutual concern.
Catholic ping!
Suppose this had been a natural conception instead of an artificial one. Would there have been any question that the man and woman who conceived the child are the parents, and that the man’s other girlfriend is ... the unfortunate loser?
This surrogate thing has been going on a long time.
Wasn't it about 5,000 years ago that Sarah told Abraham to go make little Ishmael with the handmaiden Hagar?
There has been nothing but family trouble ever since.
The correct term for Hagar (as well as for Bilhah and Zilpah, the mothers of four of the sons of Israel) is “slave concubine.”
That term doesn’t fit the mother in this case, because she didn’t have sex with the man. I think “baby seller” would be an accurate description, except that she did not, ultimately, sell her child. I guess that makes her an “unmarried mother.”
I wonder if she had to give the money back. She was paid for her “expenses” and her “pain and suffering,” it being illegal to outright buy a child by plain contract ... but on the other hand, she’s in breach of contract.
Maybe further litigation will sort it all out.
Yep, but when you mess with the God-given gift of creating human beings trouble abounds.
Oh, there’s no doubt about that!
The situation with Abraham, Sarah, and Hagar is the first time the Bible details, in newspaper fashion, a situation of immoral conception of a child and the (very long-term) bad results that follow.
If one reads Genesis and Exodus for detail, one can also see the twelve tribes of Israel operating in matrilineal factions. “Mother and children” is the natural power bloc in a polygamous (legally or de-facto) society. A woman’s most important relationships are with her brothers and sons, not her father or husband.
It’s a messy business. The Greeks dealt with it, too.
Most states have some statutes that deal with expenses in adoption cases. So if they are applying adoption law to this maybe they will apply that part of the adoption law that covers birth mother expenses. Father better hope that birth mom had medical coverage of some sort.
Exactly the illustration I was thinking of.
Good point. It would depend on whether the adoption statute considers the medical expenses (and pain and suffering fees) a gift or a payment contingent on delivery of the child to the adoptive parents/payees. (I have no idea - never looked into it.)
As it stands, it’s not really an adoption case. It’s just an unmarried father and mother who don’t live together, and state law deals with thousands of them each year.
and the child suffers.
We can’t have a society organized around satisfying the immediate desires of adults without being indifferent to the suffering of children.
I think that was a cautionary tale: people,don’t do this. It’s headaches for cenuries.
Well said.
Adapted for tagline purposes.
It’s an honor.
As is frequently the case, I am humbled and enlightened by your eloquence.
Thanks. I’m known for my pithy summaries.
That was superfluous.
But only semi-redundant.
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