Baby M

I may have been vaguely aware of this case back in 1985 when it hit the news but it was not really of all that much interest to me at that time, I had not even met the man who is now my husband of 34 years. Mary Beth was both the egg donor and the gestational surrogate, who was artificially inseminated with William Stern’s sperm. She was paid $10,000 to carry the pregnancy to term and she waved her parental rights in exchange. Her did request occasional photos and letters to provide her with updates on the baby. Upon seeing the baby, Mary Beth started having doubts about giving her away. Mary Beth demanded the baby back and wanted to renege on the contract.

Ultimately, the court granted custody to the Sterns and upheld the contract after a chilling conversation between Whitehead and William Stern was revealed in which Mary Beth threatened to physically harm Baby M. Upon hearing this, Whitehead was granted no parental rights. Mary Beth appealed to the New Jersey Supreme Court. The appellate courts decided that it was in Baby M’s best interests to remain with the Sterns. However, they also completely voided the surrogacy contract and restored parental and visitation rights to Whitehead. In terms of paid surrogacy, the New Jersey Supreme Court ruled that it was “illegal, perhaps, criminal and potentially degrading to women.”

This story is back in the news because in 2021, New York’s Child-Parent Security Act (CPSA) went into effect. It is the most robust surrogacy law of its kind in the United States. The law legalized paid surrogacy in New York and also created a number of provisions meant to protect gestational carriers and intended parents (IPs) alike. A Surrogates’ Bill of Rights endows surrogates with a host of protections, including the right to choose their own doctors, consent to all medical procedures, and the right to health and life insurance all paid by the IPs. And the CPSA requires that New York’s Department of Health monitor and license surrogacy agencies — which act as middlemen screening candidates, matching IPs with surrogates, and facilitating compensation — something no other state in the US does. It also allows for nonbiological parents to be listed on a baby’s birth certificate in the hospital. The CPSA requires that a surrogate in New York state be at least 21 and a citizen or permanent resident of the United States, and she cannot use her own egg for the pregnancy. Under the CPSA, surrogates have the right to make all decisions regarding their bodies, including whether or not to terminate a pregnancy

Surrogacy is a polarizing issue. On the left are feminist critiques and concerns about commodifying a woman’s body. On the right, it triggers a panic over queer families and reproductive freedom. Some feminists, including Gloria Steinem who wrote in an open letter to former governor Andrew Cuomo, worry that women would be even more vulnerable to exploitation, trafficking, and further subordinated as second-class citizens in the United States for the sake of making a sale.

There is more to this story in these links – [1] LINK> The Cut, a story about three women who have carried pregnancies after the New York legalized paid surrogacy law passed last year and [2] LINK> Family Source Consultants, The First Contested Surrogacy Case: The Story of Baby M.

The Brave New World

It is a reproductive fact – the egg contributes 50% of a person’s DNA, the sperm contributes 50% of a person’s DNA. For donor conceived children, the mother and/or father who is raising them may or may not be genetically related to them. Often, at least one parent is but in the brave new world of creating human beings utilizing reproductive technology – a child may be raised by a single mother who is not related at all to her child – though she may have carried the child and even breastfed her baby. The truth is that one’s marriage to their child is life-long, though as in the case of divorce, a genetically related parent may not be in their child’s life 24/7 or even throughout the childhood.

I do know of families with donor conceived children for whom the donor was anonymous – this can apply to egg donors as well as sperm donors. Fact is – Anonymity — as a pragmatic matter — can no longer be guaranteed to the donors who contribute to the existence of any donor conceived person. Donor-conceived people have interests all their own. Not all donor-conceived people know about their origin, and many express an interest in knowing more about their donors, including medical and identifying information. In a group of adult donor-conceived offspring from the 256 families that were eligible to receive identifying information, 85 (35%) contacted the clinic for this purpose. Many of those who contacted the clinic did so within the first three years after they turned 18, with the most common motivation to obtain information about their donors, including who they are as a person, their reasons for donation and their medical and health information. Third, recipients have a strong interest in knowing about the health risks their future children may experience based on the medical history of the donor.

Today, a woman writes – I’ve decided to conceive through a known local donor and my own egg. The child will know this man is their biological father. We are planning on meet up at least every 2 weeks from birth and he will receive plenty of pictures. He has also agreed to donate a second time in about 2 years so that my children will be biological siblings. (my note – that is certainly what my husband and I have as sons.) My question is, is there anything I’m overlooking in my excitement that I can do differently for the well-being of the child with this set up?

There are some details that sound like they haven’t been worked out yet. Is this an informal sperm donation or is it being arranged through a bank? Will he be listed on the birth certificate as the child’s father? Have you asked for perspectives from donor conceived people? Do you have a support system to help you raise the baby if he is not planning to be involved financially or practically? Has anything been drawn up legally? If he is not on the birth certificate as the father then he has no responsibility to help, participate or abide by your wishes. Sperm donors are not treated as the father of the child by law. No matter how much you may like and trust him today, things can change. To be clear, I am not against you creating a donor conceived a child. I encourage you to work out the legal details and to really think about the what if‘s no matter how unlikely they may seem now.

One response and some additional questions was this – The most ethical way to do this would be to list him on the birth certificate as the father and actually co-parent with him, not just let the child meet up with him every two weeks. Do you really think that would work out long term ? How would you handle it if the child tells you they want more time with their dad, overnights or to live with their dad or anything at all ?

Then there was this – What about when dad develops a new relationship with a woman who wants him all to herself?? To be with her and their “real” kids? Followed by an example – I actually know someone who was in this exact situation. She did what you are hoping to do, with a man who she thought would be in her child’s life forever. He moved across the country, married a woman who was/is extremely uncomfortable with the situation, they had kids together, and now he hasn’t seen his oldest child in over 2 years.

The woman in the question doesn’t want a romantic relationship and so that brings up another issue – You can forgo a romantic relationship, while also not procreating with a stranger. I do not understand why anyone would have a child with a man you do not know and then give that man access to your child. It takes a level of intimacy to trust someone to father your kid, doesn’t have to be romantic.

Again, more questions – what happens if you do meet somebody and fall in love, and your partner wants to take on the role of “dad” and feels threatened by the child’s relationship with its father ? And mentioned before – What happens if the father meets somebody and falls in love and she feels threatened by it, and tells him she doesn’t want him involved with you and your child ? What happens if he gets a job opportunity that moves him across the country, or even across the world ?

A woman choosing to donor conceive really needs to seriously think through the situation and there are situations where it does make sense and can be handled well. So just some final thoughts –

Both need to be absolutely certain on how that would work. Couples that intimately know each other can struggle to communicate well enough to co-parent, even within a marriage, and even more so when they live apart. You mentioned the specific of every two weeks having visits but what do you expect the visit to entail? How will you communicate changes in schedule? Are there financial obligations? Would your expectations change if his financial situation changed? What influence would he have on life decisions such as education, religion, place of residence, activities etc. What if someone needs or wants to move? Will you be able to control who else is included in the visits? How will his family be included or excluded? How will you handle inevitable disagreements on important issues? Do you have it legally planned out if something should happen to you and you are unable to parent or pass away? Planning to have full legal custody doesn’t guarantee you will make every decision on your own for the child. Are you financially prepared to confront additional legal barriers? You also mentioned having a sibling in two years which opens a new can of worms so to speak. I have watched so many of my friends struggle to work with someone they once loved navigating these issues. Some no longer recognize the person they chose (it happened) to father their child. Parenthood fundamentally changes people and it does seem you could set you and your child up for tremendous conflict. I think I would have multiple friends and family members write down every potential question they can think of and discuss how you can legally address these questions. I would also set up a prescribed procedure that should be followed when conflict does arise. I hope that is something attorneys can legally require. I’m sure you have thought a lot about what you expect, just be certain all of the potential legal issues are addressed to the best of your ability. In my opinion it would be a mistake to cross bridges when you come to them or rely on the donor to be a benevolent actor.

And just this advice – for your own protection, talk with a lawyer first. I got a free consult with a lawyer with expertise in this area, and decided a sperm bank was a better choice. There are a lot of cases, especially in certain states, where your donor could be considered a father, and could take custody, even with a legal agreement in place. Or could prevent you from moving out of state, etc. Took me awhile to let that dream go, but it was the right choice for me.

And though there aren’t many yet (I have read an essay from one myself who recognized she would not exist otherwise, which I thought a very healthy perspective) here are some Thoughts From A IVF Donor Conceived Person (if you want to read some more from such a person’s perspective). With this one, I thought this was also a healthy perspective – “I have never doubted that I was wanted, I’ve always known I was meant to be here on this earth. My conception wasn’t down to mystical chance, I had purpose and meaning to both sets of my parents from the moment I was conceived in my little Petri dish.”

Personally, as a last word, I can relate to this as I experienced secondary infertility, I was simply too old to conceive naturally any longer, even though I did give birth to a genetically, biologically related child – “Finding that you need assistance in conceiving does not mean you have failed, and it doesn’t mean any child you conceive through assisted reproduction is in any way ‘artificial’ or different from naturally conceived children. I’m proud of both my biological mother and my mother. IVF doesn’t make them any different to other parents, and raising a child that was not her own biological material doesn’t make my mother less of a parent.”

A Different System

A women who lives in Germany and hopes to adopt, shares how their system is different than the one in the United States where I live. She mentions that her father is adopted and that she is half American/half German.

The German system is totally different when compared to the US. There are no adoption agencies, everything goes through child services and you can’t “pick” a child, nor are you allowed to talk to the birth parents and make a deal with them. In order to adopt here, you have to go through about a year full of different evaluations.

First they come to do a house inspection, you have to prove your income and debts. Then, you have very intense sessions with the social workers where you share your childhood experiences and upbringing, explain why you want to adopt and whether you’ve resolved the reason you don’t already have children or have grieved about any infertility or lost children.

After that, you have a 2 day workshop with a psychiatrist, who must clear you as fit to adopt. You also have to be cleared by your doctor, to determine whether you have any type of mental or physical illness that would make you unfit to adopt or foster, as well as anything of concern that might cause an early death (ie cancer, etc).

After going through all of that, there is another house visit is made to check whether anything has changed. Then, if you make it that far, you get the ok from child services and are on an adoption list.

If a child is put up for adoption, child services goes through the list and chooses the best couple for the child. Fully open adoption are very uncommon in Germany but the birth parents can change their decision during the first year of surrendering their child.

One commenter noted – Sounds like Germany puts effort into vetting and preparing hopeful adoptive parents but do they put effort into maintaining family unit, family preservation, and supporting parents in crisis pregnancies to keep and parent their child ?

One wrote – I do applaud moms having a year to change their mind and get their child back. Is it actually that simple or does a judge have to approve in best interest case?

This was the reply – In Germany, child services does take a look at the mom to see if she is stable enough to take the child back. Germany has great ways of helping – so if she wants it, she will definitely get the help she needs. The main goal is to always keep the children with their birthparents and if not, at least in the family, if at all possible.

Someone else inquired – You don’t mention how the child came to be available for adoption. Where do the adoptable kids come from? Once adopted, are they issued fake birth certificates with the adoptive parents names listed?

The answer – there are different ways: there are “drop boxes” in hospitals. If a mother has her baby at home, she can take her baby to the drop box. The baby is put up for adoption after an 8 week waiting period, to see if the mother comes back to claim the child. If she comes back up, after the 8 weeks or within a year, the adoption will be reversed. The second option is that she has the baby in the hospital and uses a fake/anonymous name, then the hospital contacts child services, who will try to talk her into keeping her baby, but if she doesn’t want to. then the 1 year stage also starts. And the third option is that a pregnant woman goes directly to child services and says she wants to put her unborn child up for adoption. If she remains consistent in that desire, she can have a say in the type of adoptive parents she wants for her child. She is allowed to meet them in person but no personal information is exchanged – no last names, no addresses.

In Germany, once the child is officially adopted in court, the birth certificate is changed. The mother can leave her name and an address for the child to be given when the child reaches the age of 16. This is entirely the birth mother’s choice to do or not. The birth father also has the 1 year right to make a claim. In some cases, if the adoption is already finalized, he may only receive visitation rights but in some other cases, the adoption is reversed and the father receives custody of the child. A judge makes that decision based on the child’s welfare and the father’s life.

There is a law in Germany that child services remains in contact with the family until the adopted child’s 18th birthday. The child always knows they were adopted and that fact is not kept secret.

It is noted that – the German adoption system will not lessen or alleviate adoptee separation trauma any more than the US system. All adoptees should deeply process all aspects of their adoption and realize whatever negative impacts they may be affected by. This is described as absolutely life changing and a gift by those adoptees who have. It does appear that adoption is not nearly as common in Germany as it is not the multi-billion dollar industry there that it is in the United States.