Who ultimately has responsibility in a surrogate baby case?

This NYTimes article got me to thinking.

Basically what happened in one of the cases mentioned is that a couple paid a woman to carry a child (genetic info is entirely separate–the sperm/eggs were bought from yet another party, unnamed). The woman gave birth to twins and then decided that because the woman paying for the material is schizophrenic, that she’s an unfit mother. The surrogate now has the kids, but I don’t know if she will for much longer.

This case seems unfair because the surrogate has no real claim other than giving birth–she’s not genetically related. And the woman who has schizophrenia has it under control.

Though part of me does feel uneasy thinking she’s the real mother because she paid for all of it (the sperm/eggs, the surrogate)–it does seem logical. I mean, who else really has a claim?

Personally, I would give it to Kehoe. As you said, she had her mental illness under control, and we should treat her as the de facto mother since she was the one who I assume is paying for all of this.

Would we simply take a child from the biological mother on the sole basis that she was mentally ill? I don’t think so, though I concede I don’t know all of the laws for every state. I would hope not.

Baker should have as much right as taking away the child as a stranger. She was paid for her services and is not the mother, despite carrying the kids to term. She is akin to a doctor who helped deliver the children, or a nanny who takes care of them.

I think, however, our laws are woefully inadequate in these kind of cases, which usually skew towards straight women. Fathers are kind of discriminated against in custody battles and some states even prohibit gays from adopting. Better laws need to be written and harsher punishment needs to be enforced on these types of kidnappings.

Hmmm. Well; it seems to me that “the schizophrenic woman is unfit to be a mother” and “the surrogate should get the baby” are actually separate claims; one does not lead to the other. I suppose the key question would be, is the schizophrenic woman so bad off she’d have her children taken away if she got them to old fashioned way?"; the answer appearing to be “no”. If she IS that bad, it’s questionable that the surrogate should get the baby instead; it’s not hers genetically, nor was it legally adopted.

Yeah. I mean, if a biological mother is unfit, we don’t give the child to any random person who asks, which is basically what the surrogate mother is. And I agree that I don’t think that the woman would have the child removed if she had had her children the old fashioned way.

Who gave life to the baby? how does this factor into if a aborted child is alive at that time, how might this change the abortion issue?

AFAIK (and IANAL), the issue of surrogacy has no impact on abortion law at all. A pregnant woman has a right to choose to terminate a pregnancy in its early stages, no matter whose genetic material is in the embryo or fetus she’s carrying.

Some surrogacy contracts do require the surrogate to agree to an abortion if the adopting couple wishes it, but those are voluntary contractual agreements. In the absence of such an agreement, AFAIK, nobody except the surrogate has any say whatsoever in whether she can terminate her pregnancy.

Similarly, biological fathers do not have any legal right to control whether or not a woman they’ve impregnated can have an abortion, even though they contributed some genetic material to the conception of the embryo. Nor do egg or sperm donors have any control over the abortion decisions of a pregnant woman who used their genetic material to start a pregnancy via IVF.
Remember, abortion rights are about the right to choose to terminate a pregnancy in one’s own body, based on an implied privacy right to have control over one’s own body. They have nothing to do with who “owns” the fetus or “who gave life” to the fetus or who’s paying the costs of the pregnancy, or anything like that. It’s not about whose fetus it is, it’s about whose pregnant body it is.

Absent of knowledge of when the ‘human life’ begins. In this case it is assumed that the bio-parents have a legal claim on the child, though the never produced one under the premise that allows abortion.

Or to put it another way, was she just ‘babysitting’ the embryo,fetus, that was a human (baby) when she received him/her or was she just given a group of cells which is not a human, but became a human from her?

This is not a meaningful sentence and I am not sure what you intended it to convey. If you’re trying to say that you believe that human life begins at conception and you think it’s wrong that abortion law in the US doesn’t conform to your belief, I have no problem with your right to believe as you choose on those issues. However, I’m not going to debate your belief with you, since this thread isn’t about the morality of abortion.

This sentence also doesn’t make a whole lot of sense. I think you may be trying to argue that it’s inconsistent that the adoptive mother should have a claim for custody of the children since she wouldn’t have had the right to control whether or not the surrogate could have an abortion.

But this doesn’t follow, according to the legal reasoning about abortion rights (as I understand it). Early in a pregnancy, the pregnant woman’s right to choose to terminate her pregnancy overrides the fetus’s right to life, as well as the rights of the (other) parent(s) of the fetus.

Later in pregnancy and after a child is born, that’s not the case. The pregnant woman is the only one with the right to choose to terminate her pregnancy, but carrying a pregnancy to term doesn’t automatically give her the right to be a parent. (In this case the court did award custody to the surrogate, but that doesn’t always happen.)

So I think your introduction of the abortion issue into this discussion is a red herring and doesn’t help resolve any of the issues. Who gets to choose an abortion when a pregnancy is in its early stages does not determine who gets to be a parent when a pregnancy is successfully completed.

Oh, I think I see what you mean. AFAICT, the answer is “neither”. That is, the pregnancy was hers (so she could have terminated it), but she was not uniquely responsible for the baby becoming a human, neither was she entirely not responsible for it.

AFAICT, laws on abortion and adoption don’t follow your rather simplistic notion about fetal cells instantaneously “becoming a human” or being “given life” at some identifiable instant from a single well-defined cause. The reasoning seems to be that the twin babies in this case became human persons over the course of their gestation due to the contributions of at least five people: the would-be adoptive parents who arranged the surrogacy, the egg donor, the sperm donor, and the surrogate herself.

With that reasoning, there is no obvious or simple answer to the question of which of these contributors has the “right” to be a parent, especially if the fitness of one of the potential parents is contested.

Yes; in one case we have an embryo and a woman who is not consenting and the genetic mother of the child* . In another, we have a baby and a woman who is not the genetic parent who did** consent. Pretty much opposites.

  • barring some bizarre forced surrogacy scenario

** note the past tense; the deed is done, the commitment made and completed; which is another difference.

Just to go into this line a bit more, if the bio-parents can get the child by legal means, either:
1 -The child has to be a ‘child’ when they gave him/her to the surrogate, giving the bio-parents a reason to claim that child. Problem is that with this it is a legal admission that the state is allowing a mother to murder her child. Abortion officially becomes legalized murder.
2 - If the child is not a child then the surrogate is the child’s mother (for surly the child becomes a child at the time of birth at the latest), which means, if the bio-parents get the child against the wished of the surrogate, that a human can be bought and sold, a monetary value has been set on a human life and we get into issues of human trafficking and slavery.

If you want to go into the material the surrogate used in making the child, Archer Dannel’s Midland could have as much as a claim, as could Jack Dannel’s. And the material could be returned to the bio-parent in the form of cord blood stem cells.

Going a bit further on the above. Condition #2 would be prohibited by the US constitution as slavery is prohibited. So condition 2 can not be, if the bio-parents get the child then it is a admission that abortion is murder of a child.

If the court will not decide if there is a child, then they would have to default to the US Constitution and it’s bar of slavery, so again if the bio-parents are awarded the child it is a legal admission that abortion is actually murder.

IMHO it also shifts the guilt of abortion from the mother to the state on the basis of deception.

This whole case has struck me as bizarre and very wrong. I agree that the surrogate had no more right to take the children than a person off the street. It amounts to pre-emptive, legal kidnapping. She should be ashamed of herself.

Can we drop the whole issue of abortion? It’s completely irrelevant to the case at hand?

Anyways, I think part of the issue is that there’s not (that I’m aware of) any consensus on what determines a child’s parents. Up until fairly recently, when someone wanted to have a child, they would have to be the biological mother AND the woman giving birth. So, naturally, there was no need to legally differentiate. In this case, there are three different women with at least some kind of claim - intent, biology, or pregnancy. Personally, I think intent ought to be the main thing here - same as in an adoption case. Actually, now that I think of it, how would the law treat this if Ms. Kehoe had adopted the surrogate’s child, and then the surrogate decided she didn’t trust Ms. Kehoe?

Agreed. I’m not sure why it was raised–it’s just making things confusing.

Yeah, I think that’s a big problem, too. I would say it’s intent, too, because clearly Baker isn’t the bio mother. Other than the fact that she gestated the baby she has no tie to it. It came from her physically but she didn’t help create it genetically.

I know a lot of people are talking about this like “ordering up” a baby. In some ways it’s like adoption though no one’s really vetting it. But in other ways it’s like having your own child except it’s not “yours.”

I’m also wondering–if the baby was genetically Kehoe’s but physically birthed by Baker, would Baker have ANY claim? I’m hoping not but doesn’t the law now say that the woman who gives birth is the biological mother? I’m confused.

No we can’t, and it is not ‘completely irrelevant’ but it in actuality is the core issue. When was the child created? Who is the mother? What defines a mother?

It’s a case that you can’t have it both ways, either that was a child at conception, or that child became a child with the surrogate as the mother. It is also a case that defines the rights of the parents vs. the state as to who has the right to appoint who the parent a child.

But we’re not talking about what happens if the surrogate mother wants to abort the child. We’re talking about who ultimately is the parent, and do the genetic and surrogate mothers have any claim to the baby? Not about aborting it–about once it’s born.

Since Michigan has a law/regulation stating that surrogacy agreements are unenforcable, the surrogate is the default mother of the child. This is true even when the baby would otherwise be given to its married, picket fence, biological parents. The article says that it’s not guaranteed that the surrogate will win in a dispute, only that she’d have the stronger case. I guess they’re leaving open the possibility that the surrogate would not be a fit parent.

The biological parents in this case do not know that they are the parents of this child. They donated sperm and eggs. I assume that, even if they were interested, they’d have a very weak case. If we assume that life begins at conception, they didn’t make the baby, the fertility clinic did. And they signed away their rights to the Kahoes. The Kahoes had custody of the sperm and eggs before there were any embryos. And they currently have custody of the remaining embryos, the ones that weren’t implanted. I doubt that this is over.

Exactly. Which is why when the child becomes a child is so core to this issue. Can one legally promise their next (not yet in existence) child to another? Once that child becomes a child, and not just a ‘group of cells’, the mother and child are bonded (and to the child’s prospective the mother and child are one (see transitional object)).

If the bio-parents have a claim it must be based on that the child was created at the time of conception, or that a person can be bought, or the state can decide parenthood regardless of who the parent is. The 2nd one is prohibited, the 3rd one is so dangerous to even consider in any society worth living in, which leaves the first one, the claim is that the child was a child at conception, therefor abortion defined as legal murder.

It hideous to give someone a bunch of bio-material and they create a living child to then take that child from her. Even if that was the agreement from the start, because a child ‘began’ and the mother bonds to that child, that bond didn’t exist before the child was created.