Surrogate parenting refers to an arrangement between a married couplewho is unable to have a child because of the wife’s infertility and a fertilewoman who agrees to conceive the husband’s child through artificial insemination,carry it to term, then surrender all parental rights in the child.
Often, thesurrogate mother receives compensation for her services. The final step in theprocess is typically the father’s acknowledgment of paternity and adoption, withhis wife, of the child. Through surrogate motherhood, a couple desiring a childneed not wait an indefinite number of years for an adoptable baby, as generallyhappens at the present time. The married couple obtains a child who is thehusband’s biological offspring- a child for whose existence both husband andwife can feel responsible. Surrogate parenting is highly controversial by its very nature.
Nevertheless, surrogate parenting is attracting wide spread attention as aviable alternative for infertile couples intent on having a child. Contractsurrogacy is officially little more than ten years old, although surrogatemothering is a practice that has been known since biblical times. In 1986 alone500 babies had been born to mothers who gave them up to sperm donor fathers fora fee, and the practice is growing rapidly. For this reason there are many questions and doubts that arise from thissubject. Often there are many legal difficulties that come about with surrogateparenting.
In some states the contracts that insure the infertile couple thebaby of the surrogate mother mean nothing. This, in turn, can cause hugeproblems if the surrogate mother were to change her mind about giving up herchild. Who has the rights to the child in this awful situation’surrogateparenting is a wonderful alternative for infertile couples as long as allparty’s involved are educated on the subject and are fully aware of the prosand cons of this risky business transaction. Unfortunately laws on surrogate parenting aren’t very helpful. Increasing numbers of surrogate custody cases are finding their way into thecourtrooms. The most dramatic problem arises when the surrogate mother decidesshe wants to keep the baby.
Whether she decides early or late in the pregnancy,at birth, or after the child is born, the ultimate issue is whether she or theinfertile couple have parental rights. How is the law to respond to this kind of problem? Normally peoplewould agree that a contract is a contract and therefore the infertile coupleshould be the ones to receive the baby. Unfortunately for some of us moresympathetic people this decision is not that simple. By changing her mind thesurrogate mother is showing maternal feelings that are surely not reprehensible. Although she has promised to give up the baby her change of heart seems moreunderstandable than dishonorable.
After all how can a woman truly be expectedto know how it will feel to give birth to a child and then have to give it up?These are very good questions that tend to leave one undecided as to whichparty’s demand is justifiable and should be upheld. Instead of deciding surrogacy issues on the basis of the law and policyof the states, judges could look for guidance from the U. S. Constitution.
Constitutional arguments can be made on both sides of the classic surrogacydispute involving the mother who changes her mind about giving up her child. Resolution of the constitutional issues will depend ultimately upon assessingand weighing the various factors at stake. Like decisions based on contract andcriminal law, constitutional decisions will take account of the party’sinterests, the child’s interests, society’s interests, and the effectiveness oflegalization and regulation as opposed to prohibition. Many Americans remained unaware of these dramas, but virtually everyonein the United States became aquainted during 1987 with the plight of Mary BethWhitehead and Baby M. Mrs.
Whitehead was a twenty-nine year old house wife. She already had two children, and decided she would be the surrogate mother fora couple by the name of Mr. and Mrs. William and Elizabeth Stern.
The Sternswere 40 and 41 years old. They had been married for 12 years and were childless. Mrs. Stern had a mild case of multiple sclerosis and was unable to bare anychildren. Although Whitehead promised in the contract that she would form no bondwith the baby, she knew in the delivery room she could not give up her child.
Whitehead ended up kidnapping the new born. The case proceeded to a much-publicized trial entailing six .
