Two Cases Show the Tangled Web of Surrogate Motherhood

Two cases, conflicting results.  The subject is surrogate parenthood and the rights of surrogates and others.  Here’s a hint: if you want a surrogate mother to carry and bear your child, don’t do it in the United Kingdom.  Australia’s a better choice.

In the first case here, two gay men in Australia wanted children, so they recruited an anonymous egg-donor, a surrogate to carry and bear the twins (Adelaide Now, 1/22/11).  One of the men provided the sperm.

The 20-month-old girls were born in Mumbai to an Indian woman who carried eggs from an anonymous donor impregnated with sperm from one of the Melbourne men.

The couple went to the Family Court seeking full parental status for the non-genetic male partner.

And that has been granted, presumably on the basis of his hands-on fatherhood.  As the judge said at trial,

“As a matter of law, the word ‘parent’ tends to suggest some biological connection, but … biology does not really matter; it is all about parental responsibility.”

Hmm.  I know he was speaking just about the particular case, but biology matters in family law in all sorts of ways.  Indeed, in Australia as well as in many other places, maternal biology alone is sufficient to confer parental rights.  Fathers, particularly unmarried ones aren’t so fortunate.  In their case, in many jurisdictions, the judge is correct.

And of course biology was vitally important to at least one of the men in the case.  After all, gay men and lesbian women adopt children all the time, but that’s not what the Australian pair did.  They went to a lot more trouble and expense for one reason – to ensure that the DNA of one of the men was present in the children.  To them, biology was important, whatever the judge thinks about it.

Then of course there’s the biological mother.  She’s apparently agreed to stay out of the family, but what if she changed her mind?  In England only last year, a gay man who provided sperm for two lesbian partners to conceive a child ended up with equal parenting rights.  Admittedly, they agreed that he should have a role in caring for the children, but it was his biological connection that encouraged him to do so.

What would be the biological mothers’ rights if she wanted to assert them?

For that matter, what if the Indian woman decided she’d bonded with the kids during pregnancy – as she likely did – and wished to claim parental rights?  Would the judge say that, in some mysterious way, her carrying them for nine months didn’t constitute nurturing or responsible parenting?  That would be a stretch. 

With a little effort, those twins could have four parents.

Let’s be clear; I’m all for the rights of gay men and lesbian women to be parents.  What evidence we have indicates that they’re every bit as capable and loving as straight parents, so I’m glad to support their parental rights.  And I agree with the judge that if a man has acted the part of father, he should have the rights of one.

But surrogacy is one of the most tangled webs there is and the possibilities are so varied that a single rule on parental rights would be hard to craft.

Surrogacy usually includes at least one agreement among all the parties that the surrogate mom won’t have any parental rights once the child is born.  But, depending on the jurisdiction, those agreements may or may not be enforceable.

That’s part of the reason this case came out the way it did (Daily Mail, 4/12/11).  In England, a married couple, Mr. and Ms. W, was desperate to have a child.  They’d suffered no fewer than six late-stage miscarriages due to her surgery for uterine cancer.  The pair despaired of ever having a child of their own. 

So they hit upon the idea of a surrogate.  They found a willing woman, Miss N, who seems to have been all too willing to accept the £10,000 they offered for her medical and other expenses. The three agreed that she would give up the child and all her rights once the child was born.

But six months into her pregnancy, Miss N changed her mind and, in violation of the agreement she’d signed, decided to keep the child for herself. 

And British courts backed her up. It seems that in England, the surrogacy agreement is not binding, at least on the surrogate.  (I wonder what would have happened if she had turned the child over to the couple and they had refused to pay.)

So with the agreement invalid, and the surrogate claiming parental rights a custody battle was inevitable.  It lasted six months and Miss N prevailed.  Why?  Well, students of U.S. family law won’t be surprised to learn that it’s in large part because she’d kept and raised the child during the term of the custody dispute.

In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the child”s best interests because there was a ‘clear attachment” between the mother and daughter.

I should make it clear here that the judge didn’t think much of any of the three.  All seem to have lied under oath several times.  And none of the three look like very promising parents.  So there were competing claims about who could do the best job of parenting. 

But what seems clear is that Miss N kept the child and bonded with her and vice versa.  That allowed the child’s court-appointed guardian to testify in court about their good relationship.  Had Miss N kept her promise for which she’d been paid so well, none of that would have happened.

If that looks to you a lot like many U.S. adoption cases, you’re right.  In those cases, it’s possession that seems to count most to courts.  Possession leads to bonding which leads to custody.  As I’ve written before, in those cases, if adoptive parents can just get possession of a child and keep it during the pendency of litigation (usually several years), then – voila! – it’s theirs irrespective of the fact that it was all done in violation of the fathers’ rights.

The same is true in the W’s case.  Miss N had possession of the child and naturally the child has become attached to her.  Again, never mind that she did so in violation of her agreement for which she’d already been given a hefty sum of money.

I’ve likened a few U.S. adoption cases to child theft.  This looks the same.

Indeed, it’s fascinating how similar the case is to so many others we’ve discussed.  It even includes allegations by Miss N of domestic abuse by Mr. W against his wife – allegations that both Mr. and Mrs. W denied in court, even though they were disbelieved by the judge. 

In any case, I guess Ms. W now has some idea of what it’s like to be a father in a custody case.  You have your child taken from you (in this case by a surrogate) for no good cause and that taking is then used to justify your secondary status as parent.  And just in case you think you have a chance, there are those allegations of DV to make sure you don’t.

Just to add insult to injury, the court also ordered Mr. W to pay child support in the sum of £568 per month.  That’s right, it’s Mr. W who has to pay.  They both agreed to hire the surrogate, but it’s his sperm, his kid, don’t you know. 

That of course brings us back full circle to the Australian judge’s remark that “biology does not really matter.”  Oh.

But to sum up the way the British courts have botched this whole case, I’ll leave it to Mr. W.

She has taken away our baby and now she is taking our money. To me, that is completely wrong.

Thanks to John for the second piece.

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