
The New York Times has a fascinating piece on the woolly legal issues surrounding surrogacy, highlighted by a sad, complicated case in Michigan. The short version of the story: an infertile couple, the Kehoes, created embryos with donor eggs and sperm. They then selected a surrogate, Laschell Baker, to carry the pregnancy to term. The Kehoes reimbursed Baker for her medical expenses, and expected to gain guardianship of the babies after they were born. Things got dicey, however, when Baker learned of Amy Kehoe’s psychiatric history during the guardianship hearing. (Kehoe had been diagnosed with paranoid schizophrenia and had been arrested years earlier for cocaine use and driving under the influence.) Despite the fact that she was on anti-psychotics and, according to her psychiatrist, had had no symptoms of mental illness for nine years, Baker argued that Kehoe was an unfit mother. Since Michigan law regards surrogacy contracts as void and unenforceable, she successfully disputed the Kehoe’s guardianship and the twins are now in the Baker’s custody.
It’s a heartbreaking story, and I’m pretty disturbed by the fact that Amy Kehoe was determined an unfit mother not because she was currently displaying erratic or abusive behavior, but because she had a medical history of mental illness. I don’t think that Laschell Baker was right to withhold the babies for that reason. But! The article really drove home the idea that in surrogate situations, children (or potential children) are being treated as commodities—straight up, I-paid-money-for-it-so-it’s-mine commodities. The basis for the Kehoe’s legal claim to parenthood was that they commissioned and paid for the babies’ creation. To wit:
“We paid for the egg, the sperm, the in vitro fertilization,” Ms. Kehoe said as she showed off baby pictures at her home near Grand Rapids, Mich. “They wouldn’t be here if it weren’t for us.”
While I’m not discounting the importance of either this or the obvious emotional investment they had, the idea that parenthood in these situations must necessarily be awarded to whomever paid for the conception and gestation of the fetuses, as opposed to whomever did the gestating, is not immediately obvious to me. One of the commenters on Jezebel, purpleshoes, summed it up really well:
To me, there are two different questions here: whether a woman gains the legal right to decide what happens to other people’s genetic material once it’s in her uterus, and whether women can sign ultimately binding legal contracts dealing with the disposition of a fetus that is not yet born. I say the precedent for the first is clearly sperm – in that a woman has a right to continue or discontinue a pregnancy even though some portion of the genetic material involved is not hers, because the major requirement to continue the pregnancy is not the existence of the initial cells but rather the major involvement of her internal organs – and the precedent for the second is clearly adoption, in which women can’t sign away rights to children that legally don’t exist yet, so any decision made before birth can only be considered provisional.
In other words, carrying a pregnancy to term is A Big Deal, both ethically and biologically. It’s not like watering someone else’s house plant for nine months. There are good reasons why most states have been reluctant to recognize surrogacy contracts. Parental rights and obligations cannot usually be contracted away, and like that last quote mentions, it’s legally impossible to opt out of one’s parental responsibilities to a child who doesn’t exist yet. Birth mothers considering adoption cannot relinquish custody while they’re still pregnant, and a lot of states allow a grace period of a few days after giving birth before they have to make a final decision.
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