Russell and Duenes

Can a Surrogacy Contract Stop a Surrogate Mother from Having an Abortion?

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In Raftopol v. Ramey, 299 Conn. 681 (2011), the Connecticut Supreme Court opined that “the legislature is the appropriate body to craft specific rules and procedures governing gestational [surrogacy] agreements.” If you recall, “gestational surrogacy” is where the birth mother (I refuse to call these surrogates “carriers” or “vessels” or any other such misogynistic name that essentially degrades and debases women to a form of “rent-a-wombs.” As I’ve said elsewhere, we live in a massively misogynistic culture which falsely parades itself as being pro-women. We are hateful of femininity.) is unrelated genetically to the child she carries. Unfortunately, the States are all over the place when it comes to surrogacy laws. Some states have surrogacy statutes, others have allowed judges to rule on what their surrogacy law will be, other states have no surrogacy law of any kind, and some states have outlawed surrogacy entirely. The federal government has no overarching law on surrogacy which would trump State law. Hence, the mess we’re in. Yet the Connecticut Supreme Court has at least done us the service of raising the issues that State legislatures ought to consider. These issues are important, and I provide them here, with brief comments in places, simply by way of introduction.

The court states: “In jurisdictions that have addressed the issues raised by the use of assisted reproductive technology, it appears that there are three general approaches to the determination of legal parentage. Those three approaches define parentage based on: (1) the intent of the parties; . . . 2) the genetic relatedness of the parties; . . . or (3) giving birth.” This third option is the one that presents problems for gestational surrogacy, for if the woman birthing the child and the woman who provided the egg are both considered “mothers,” well, you get the picture. Who’s maternal rights trump? This is why there is a strong push to get rid of this third option, and we get rid of it by defining the birth mother out of existence and downplaying the nature and purpose of pregnancy, both of which are bad for women and bad for us as a people.

The court continues: “Additional issues that some states have addressed, for example, include whether to recognize compensated gestational agreements. . .” This raises the issue of “baby-selling.” Are we buying and selling human life if we allow gestational mothers to be compensated? Numerous other countries have outlawed commercial surrogacy, only allowing people to engage in what might be called “altruistic” surrogacy.

” . . . whether to limit the availability to married couples, infertile intended parents . . .” Of course, this is where the whole homosexual issue comes up. If a State limits surrogacy to married couples only, many homosexuals will not be happy, to put it mildly. Unmarried heterosexual couples will be quite grumpy as well. This ultimately directs our attention to the children, and points up the adult-centric nature of surrogacy. In other words, how much should we concern ourselves with the parenting environments into which surrogate children will be born? Should we limit our concern to whether the people who want the children are law-abiding, responsible, healthy and clean, and rid ourselves of all questions related to having fathers and mothers? If the “science” is “settled” that it makes no difference to children whether they are raised by a father and mother, by two mothers, by two fathers, by any grouping of people who “love” them, then one can see where the surrogacy policy is headed. But of course, the science isn’t settled, and even if it were, it would be settled in favor of the fact that, all other things being equal, having a father and mother to raise you is best.

“. . . what protections to put in place to safeguard the gestational carrier’s right to make decisions regarding healthcare and termination of the pregnancy until the child has been delivered . . . ” This raises a whole host of practical questions: How well does the gestational mother have to take care of herself during the surrogate pregnancy? Does she have to eat healthy? Must she abstain from alcohol? What if she fails to do so? What if she changes her mind and wants to abort the baby or babies? Can a surrogacy contract contain a provision whereby the birth mother will abort the baby if the baby has certain birth defects? If you cannot force the birth mother to abort, what kinds of damages can you inflict on her for breach of contract?

“. . . whether to require that the spouse of the gestational carrier either consent or be made a party to the contract . . .” Obviously being a gestational mother does not just affect the mother. Husbands may be affected, as well as any children a gestational mother might already have.

“. . . whether to require that at least one intended parent contribute genetic material, and whether to require mental and physical health evaluations and home studies.” Let’s imagine a scenario. You’ve got a gay man, Jim, and his partner, Larry. They want to raise a child together, the child being the product of Sally’s egg and Thomas’ sperm. They would like Becky to carry and give birth to the child. How does one sort this out legally if Sally suddenly decides that she has rights to the child, it being her egg, and she sues for parentage rights? Alongside this, Thomas also sues because he wants to have parental rights as well, given that it’s his sperm. And does Child Protective Services need to do all sorts of tests to determine whether Jim, Larry, Sally, Thomas and Becky would be fit parents, should they all get some parentage rights in the child?

The court mentioned the Uniform Parentage Act, which discusses a whole bunch of other considerations: “specific procedural requirements for the hearing to validate the gestational agreement, including a residency requirement; joinder of the spouse of the gestational carrier, if she is married; a required finding by the court that the intended parents meet the standards of suitability applicable to adoptive parents and a finding of voluntariness as to all parties to the gestational agreement; . . .  procedures upon termination of the gestational agreement; . . . procedures upon the birth of the child, including the issuance of a court order declaring parentage and directing the responsible agency to issue a birth certificate naming the intended parents as parents to the child; . . . the effect of a subsequent marriage of the gestational carrier; . . . and the effect of a nonvalidated gestational agreement.”

One can see the legal, social and moral thicket into which surrogacy agreements lead us. Given the current ascendancy of radical individual autonomy, worship of sexual expression in any and all forms which the participants desire, and the fragmented and broken nature of our family lives, the issues and questions are going to be framed in a certain kind of way. The Church, of course, has the opportunity to consider these issues and development her own framework for addressing them, based on biblical premises and conclusions. As always, this provides us with opportunities to speak in terms of the redemptive work of Christ. I hope we will take such opportunities, for it is God’s image-bearers, after all, with whom surrogacy has to do.



Written by Michael Duenes

February 2, 2014 at 1:00 pm

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