Legal Conflicts

Straight off, I will say that I am NOT in favor of gestational surrogacy. My primary objection is separating babies from the mother who’s womb they developed in. There is definitely an in-utero bond. I probably do know more families with donor conceived children than most ordinary citizens do. I know of situations where a surrogate was used. One in which the intended mother was actively undergoing chemotherapy at the time her twins were born and who did die when the twins were about 2 years old. They are being raised by their genetic father who donated the sperm in that assisted reproduction effort. I also know of a couple of women who simply didn’t want to wait any longer to have children with no husband in sight. They used both egg and sperm donations. BOTH carried their own children and I know them as awesome moms. These children are all 18 years old now including my youngest son.

The situation that inspired today’s blog regards couples from other countries entering into surrogacy contracts with women here in the United States. In this particular case, the intended parents have refused to come and get their twins for over a year now (they were born in February 2021). The surrogate and her husband are on the birth certificates as the parents but lack any legal custody because the surrogacy contract supersedes any hospital created birth certificate. The woman has both TikTok and Instagram accounts but both are private (possibly due to the legal complications) but I really don’t need to see them myself. The Instagram has a cute profile photo of the twins.

The United States is a destination country for couples who find they have to undergo surrogacy abroad due to the laws in their own country. Surrogacy is allowed in the United States for international patients by law. Not all of the states here are equally “friendly.” The website on LINK> International Surrogacy notes “surrogacy arrangements are legal in the following territories: Nevada, California, Texas, Arkansas, Illinois, Virginia, Florida, New Hampshire, Delaware, New Jersey, Tennessee, and Utah.” The states that ban surrogacy arrangements include Arizona, Michigan, New York, Indiana, Kansas, Louisiana, and Nebraska cautioning that surrogacy is even considered a criminal offence in some of them.

In the USA, a birth order is the legal document used to assign parentage to a child. These can be either a post- or pre-birth order that establishes the parental rights for the intended parents. This is key when undergoing surrogacy in the USA. Pre-birth orders can be started in the fourth month of pregnancy, whereas post-birth orders are granted on day 3 or 5 following the birth. This choice is very pricey for the intended parents – $95,000 to $290,000 – due in part to the fact that the US healthcare system is run by private businesses.

So back to our “trapped” surrogate and her husband. In order to have legal custody, they will have to go to court. They would have to sue for custody because simply being on the birth certificate doesn’t circumvent the surrogate contract in place. A complication of course is that they are not genetically related to these children and had no intention of parenting them to begin with. This even though they have been effectively raising these two babies for about a year. The intended parents have “broken” their contract but that doesn’t simply negate it legally.

Being a legal parent on a birth certificate does not always mean you have legal custody of your children – if there is another entity involved (like surrogacy, Div of Human Services/Child Protective Services with foster care, adoption until it is finalized, guardianship). It really depends on the country and this is the reason so many contracts, legal fees and lawyers are involved with situations such as surrogacy. Every situation is extremely unique.

Assisted Reproduction

Breanna Lockwood with mother Julie Loving

The 51-year-old woman served as the gestational carrier for her daughter and son-in-law and gave birth to her granddaughter. The newborn, named Briar Juliette Lockwood, is the first child for Lockwood and her husband, Aaron, who are the baby’s biological parents.

These kinds of stories based upon the miracles of assisted reproduction, always raise opinions. Among those who have dived deep into such issues this is considered, for the baby herself, probably one of the best possibilities that such medical capabilities produce.

I had my daughter at the age of 19 in all ways conventional. That marriage ended. I remarried and after 10 years of marriage, my husband informed me over Margaritas at a Mexican restaurant that he had changed his mind and actually did want to become a father.

It was too late for me. I sorrowed he had married such an old woman. Then, medical science made it possible for us. I carried, birthed and breastfed 2 sons thanks to the gift of another woman’s eggs. I gave birth at 47 and 50. There are times it comes fully upon me how old I’ll be (70) when my youngest is 20. However, my husband has been every bit the awesome father I thought he would be. Because of financial circumstances, my daughter did not live with me past the age of 3 but was raised by her father and step-mother. It was my second chance to prove to my own self that I wasn’t a failure as a mother.

Both of my parents were adoptees and both of my sisters gave up babies to adoption. In the short 3 years that I have been able to learn who all my original grandparents were (something my own parents died not knowing), I have been in this group and read so many books and while I do not think surrogacy is a good idea due to mother/child bonding in the womb and the separation that occurs after birth, I have known of two couples that did choose that route to becoming parents. It really isn’t my business but I do have concerns.

While our method of becoming parents is not perfect, we’ve always been honest with our sons about their conception. They are connected to the egg donor via 23 and Me and have met her more than once. She lives far away and so the relationships are not close. I am grateful I had the opportunity to parent, even so late in life.

Surrogacy Is A Separation

I have known of two cases of surrogacy directly. Both utilized donor eggs. One was a mother who was being treated for cancer. She did die when the twins were about 2 years old and the father, who was directly their genetic father, remarried. The other one is a family member. The wife takes a lot of drugs to manage her mental health issues. They had a lot of failures but did eventually succeed and the little boy is now 5 year old and I am happy for my brother in law that he could be a father.

I didn’t question the practice at all until I began to discover my own genetic roots (both of my parents were adopted). As part of that journey, I began to learn a lot of things about infant development. No matter how you spin it, babies are being separated from the woman they’ve shared a home with for 9 months. The woman whose body nurtured and cradled them. They know her scent, her heartbeat. That’s who they know. And they are born and handed to someone who smells different, some stranger they don’t know.

There have also been cases where a surrogate mother became so bonded with the infant in her womb that it took a court case to separate them and contracts between a couple and a surrogate are much more explicit now about what is being done and for whom.

It hasn’t been all that long since The Handmaid’s Tale was making current news and the forcing of women to complete a pregnancy they don’t want for the purpose of handing their baby over to a prospective adoptive couple, often with undertones of evangelical Christianity seeking to convert the world to their philosophies, is very real even now.

One woman commenting on this situation admitted, “I seriously considered being a gestational carrier (their baby in my body, not my biological child) and when I learned about adoption trauma I knew I could never do it. How awful to take a baby from their only life connection. It’s cruel. It only serves to gratify the adults’ needs.”