I was recently watching an episode of Curb Your Enthusiasm (excellent show if you’re not familiar with it) where a couple had a surrogate mother, who became convinced that she wanted to keep the baby she was carrying for them.
First of all, (this should be easy enough to answer but I simply don’t know) why does a couple get a surrogate mother in the first place? I assume there must be a medical condition that prevents a woman from becoming pregnant, what is it? Or can a woman simply do it because she doesn’t want to be pregnant?
Then second, although I assume that they sign an agreement beforehand, if the surrogate mother simply decided to break the agreement how would they handle it?
There are lots of conditions that make it impossible or ill-advised for a woman to carry a baby to term. It is also very common and most people that face those challenges do not resort to paid surrogates but choose adoption or simply no children. Many of those conditions involve a damaged or improperly formed uterus that simply won’t support a full formed baby and maybe even kill the mother if something goes wrong suddenly.
I don’t believe many people hire a surrogate because they don’t want to carry the baby. It is expensive and emotionally taxing because of topics like these.
The legality of this is going to vary by jurisdiction. The DNA donors and future parents usually draw up a contract with the surrogate mother and the laws surrounding this will vary by place. There are special laws in some places that protect the rights of the paying parents because of concerns like this.
To make it more clear, surrogate mothers are typically used when the father has healthy sperm and the mother has at least some viable eggs but it is not safe for the mother to actually carry a baby to term. In that case, sperm and egg can be united in a dish and then artificially inseminated by another woman. Sometimes this is a stranger that does it for a hefty fee and other times it is a family member that just wants to help.
Contracts can be drawn up about fee schedules and terms and conditions. These would typically not give the birth mother the option of keeping the child but they have been known to fight it and laws get screwy when you deal with complex situations with nontraditional roles and terminology.
You could start with this article, and if you wish to read more, entering “Mary Beth Whitehead” in a search engine will produce a multitude of hits. Hers was one of the first cases (1987) involving the question posed in the OP.
ER just did this last night. It was very sad. The surrogate opted against the advised cesarian and the baby was born severely brain damaged. The embryonic parents didn’t want a “damaged” baby and the surrogate said the child was never hers to begin with. I’m sure the laws vary regarding who must do what, but the basic feel was one of hopelessness.
The laws on surrogacy vary wildly by state. Some states make surrogacy contracts enforceable (CA); some states make them absolutely unenforceable (NJ). Some states have laws “in between,” allowing surrogacy to happen, but not necessarily giving force to the contracts (AL). Some states prohibit surrogacy (AZ). At least one state (MN) doesn’t mention surrogacy in its laws at all.
In this case, didn’t the father use Mary Beth’s eggs, so the child was biologically hers?
I heard of a horrid case where a woman was nothing more than a “womb to rent,” ie, the baby was made with the mother’s egg and the father’s sperm, and the surrogate had no DNA in common whatsoever with the baby. She tried to sue to keep the baby, and her lawyer (who I just wanted to strangle) was very snooty, saying it was hers because her blood was nourishing the baby and she had formed an emotional bond. To me, it was kidnapping, pure and simple. I don’t know what came of that case…I’d guess the surrogate was trying to hold out for more money, which is why she was making such a (IMHO) ridiculous claim.
I’ve been reading up on surrogates for a story I’m writing. Apparently there are two types of surrogacy: gestational and traditional. Gestational is the type we think of: mom’s ova, dad’s sperm, third party’s womb. Traditional, on the other hand is rather different: dad’s sperm, third party’s ova and womb. I had no idea that “traditional” surrogacy was legal (imho it sounds too much like selling your baby) but apparently it is in many places. Those are the cases, like MaryBeth Whitehead’s, that are the most likely to result in the surrogate wanting to keep the child. The experts on the site claim that less then 0.5% of surrogates try to keep the infants.
I was living in Bergen County where the “Baby M” trial was held and followed the whole thing. The child was Mary Beth and William Stern’s biologically, but Mary Beth named her husband on the birth certificate, and claimed it was his genetic child (though he had a vasectomy). She claimed she had a good marriage (though her husband was an alcoholic, she had called the police about his domestic violence, he had separated from the family and they had collected welfare at one point), that she was a good mother (though her son was living with her parents in Florida and she had threatened to falsely accuse her daughter Tuesday of being sexually molested by William Stern), and that it was simply a case of a rich couple hiring a poor surrogate because they didn’t want to go through pregnancy (though her husband was making $38K a year and Bill Stern was making $45K). Mary Baby would eventually get pregnant outside of her marriage, divorce her husband and marry her baby’s father.
But to answer your question: If a surrogate mother backs out of the agreement, she can attempt to get custody and/or visitiation with the baby.
Personally, Mr. Clawbane and I would have to have a surrogate mother. I have ovaries, but no utereus, due to a partial hysterectomy.*** ** If we ever decide to have biological children, we’d have to go the surrogacy route.
***** I had a large fibroid tumor in the uterine muscle which was pressing on my bladder, leading to UTIs and kidney infections. (Kidney infections are a serious matter, they can kill you and are hard to get rid of.) The doctor tried hormonal treatment to shrink the fibroid, but it continued to grow. I had to have a D&C procedure because the fibroid wasn’t allowing all of my lining to slough off during my monthly cycle, leading to nasty infections. I was very sick for much of the time before my utereus was removed. The doctor went in with the purpose of removing any fibroids he found during the procedure, but there were none on the inside. The sonograms didn’t show any on the outside, so he diagnosed it as being inside the muscle itself. I didn’t ask him if the birth control I’d taken for years caused the fibroids, but it is possible. (Cantalope sized by the time he removed it.)