Untitled Essay, Research Paper

The Prevalent Issues of Surrogate Parenting

Surrogate parenting refers to an arrangement between a married couple

who is unable to have a child because of the wife’s infertility and a fertile woman

who agrees to conceive the husband’s child through artificial insemination, carry it

to term, then surrender all parental rights in the child. Often, the surrogate mother

receives compensation for her services. The final step in the process is typically the

father’s acknowledgment of paternity and adoption, with his wife, of the child.

Through surrogate motherhood, a couple desiring a child need not wait an indefinite number

of years for an adoptable baby, as generally happens at the present time. The married

couple obtains a child who is the husband’s biological offspring- a child for whose

existence both husband and wife can feel responsible.

Surrogate parenting is highly controversial by its very nature.

Nevertheless, surrogate parenting is attracting wide spread attention as a viable

alternative for infertile couples intent on having a child. Contract surrogacy is

officially little more than ten years old, although surrogate mothering is a practice that

has been known since biblical times. In 1986 alone 500 babies had been born to mothers who

gave them up to sperm donor fathers for a fee, and the practice is growing rapidly.

For this reason there are many questions and doubts that arise from

this subject. Often there are many legal difficulties that come about with surrogate

parenting. In some states the contracts that insure the infertile couple the baby of the

surrogate mother mean nothing. This, in turn, can cause huge problems if the surrogate

mother were to change her mind about giving up her child. Who has the rights to the child

in this awful situation? Surrogate parenting is a wonderful alternative for infertile

couples as long as all party’s involved are educated on the subject and are fully

aware of the pros and 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 the courtrooms.

The most dramatic problem arises when the surrogate mother decides she 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 the infertile couple have parental rights.

How is the law to respond to this kind of problem? Normally people

would agree that a contract is a contract and therefore the infertile couple should be the

ones to receive the baby. Unfortunately for some of us more sympathetic people this

decision is not that simple. By changing her mind the surrogate mother is showing maternal

feelings that are surely not reprehensible. Although she has promised to give up the baby

her change of heart seems more understandable than dishonorable. After all how can a woman

truly be expected to 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 which

party’s demand is justifiable and should be upheld.

Instead of deciding surrogacy issues on the basis of the law and policy

of the states, judges could look for guidance from the U.S. Constitution. Constitutional

arguments can be made on both sides of the classic surrogacy dispute involving the mother

who changes her mind about giving up her child. Resolution of the constitutional issues

will depend ultimately upon assessing and weighing the various factors at stake. Like

decisions based on contract and criminal law, constitutional decisions will take account

of the party’s interests, the child’s interests, society’s interests, and

the effectiveness of legalization and regulation as opposed to prohibition.

Many Americans remained unaware of these dramas, but virtually everyone

in the United States became aquainted during 1987 with the plight of Mary Beth Whitehead

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 for a couple by the name

of Mr. and Mrs. William and Elizabeth Stern. The Sterns were 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 any children.

Although Whitehead promised in the contract that she would form no bond

with 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 weeks of testimony and half a million dollars in legal bills.

Unfortunately many surrogate agreements end with a tragic conclusion

similar to this one. These awful outcomes could be completely avoided if the law would

include in its many clauses, unconditional protection against any infringement upon the

contract between the surrogate mother and the infertile parents.

In order for surrogacy to work with its initial intent, there can be no

exceptions to this law. Although there will be cases in which the enforcement of these

laws may be seemingly harsh and apathetic, it is the only way that this wonderful

alternative for infertile parents can rightfully continue, without potentially ruining the

lives of all parties involved, most importantly the child’s.

Although the rights of the infertile couple should be first and

foremost, it is important not to overlook the grievances of the surrogate mother.

Preparation via support groups and individual therapy should be offered to the surrogate

mother before the birth, not only to inform her of the enormous feat that lay ahead of

her, but also to prepare her to deal with the traumas that can accompany the loss of a

child. The importance of informing the surrogate mother in full that the contract she is

to agree to is not reversible, is immense.

Not all cases involving surrogate parenting result in battles for

custody. Ironically, in some cases the battle is to decide which party will be forced to

take the child as their own.

One example of this unusual incidence occurred in 1982. Judy Stiver, a

twenty-six year old house wife agreed to bare a child for forty-six year old Alexander

Malahoff and his wife for a fee of $10,000 dollars. The Malahoffs had wanted a child to

strengthen their marriage, but the couple separated during the pregnancy. It was then

found that the baby would be born with microcephaly- a handicap that not only left the

child with an abnormally small head (which is usually indicative of retardation), but the

infant was also left without a home to be released into. The natural mother said that she

felt no maternal bond with the baby but she agreed to the intravenous antibiotics to

combat the baby’s life-threatening infection. Malahoff, however, instructed the

medical staff to take no steps or measures to treat the strep infection or otherwise care

for the infant. Both sets of parents then went on to renounce their responsibility for the

child. The hospital obtained a court order authorizing doctors to treat the baby, and the

infection was cured. The baby, however, had no home to be released into from the hospital

and was consequently placed in foster care. The case became an example of the horrible

possibilities such arrangements can entail when a baby is born with a handicap. This type

of incident should be avoided by making it infinitely clear in the beginning of the

process of the surrogacy agreement that, under no condition will there be a breech of

contract.

Although it may seem that all cases end in tragedy, there are in fact

many cases in which the end result is precisely the way all deciding parties had intended

it to be, with the child being placed in a happy and loving environment. However, despite

these many success stories, there are still groups that advocate the prohibition of

surrogacy. One such group is the National Committee for Adoption. The NCA has been a

consistent and outspoken critic of surrogacy and wants it to be outlawed. They argue that

the availability of surrogacy would cut back on the adoption of existing babies. Perhaps

if infertile couples were unable to employ a surrogate to have a child for them, they

would go about getting a child in some other way, one that would be much more beneficial

to society. They might decide to adopt a child already in existence, or a child who will

be born in any event and who is in need of a home and family. Fulfilling their parental

urges in that way, they would perform an important service to the child and to society.

Although this is a valid argument, for some couples adoption seems

unavailable. Many couples today are waiting longer before attempting to conceive and thus

are older when they discover that they have a problem. Especially if they take time to

undergo fertility treatments before turning to adoption, they may find that they are too

old to be acceptable to conventional adoption agencies, which prefer couples under the age

of thirty-five. Moreover, adoption is not as easy today as it has been in the past, and

there is a definite shortage of healthy newborns available for adoption in this country.

Infertile couples would argue that the chance to have a

“normal” child, and a child as biologically connected to them as possible, is

not afforded by special needs adoption or even the adoption of healthy newborns, and that

although it benefits society more for them to adopt an existing child than to conceive a

new one, the same is true for fertile couples, who nonetheless are permitted to reproduce

without any restriction by the state.

Surrogate motherhood is growing in popularity because it meets the

urgently felt needs of those who resort to it better than any of the alternatives as they

see them. As a consentual arrangement it is as worthy of legal protection as many others

which, formerly suspect, are now taken for granted. Subject to reasonable regulation, it

deserves to take a place among the growing array of methods available to individuals for

the ordering of their own marital and reproductive lives. Doctrines fitted to other

circumstances should not be allowed to bar the legality or enforcement of surrogate

motherhood agreements.

Works Cited

Chesler, Phyllis. Sacred Bond. New York: Times Books, 1988.

Field, Martha A. Surrogate Motherhood. Massachussetts: Harvard University Press,

1988.

Keane, Noel P., and Dennis L. Breo. The Surrogate Mother. New York: Everest House,

1981.

Overvold, Amy Zuckerman. Surrogate Parenting. New York: Pharos Books, 1988.