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.

The Correct Terminology

My mom was adopted. She referred to my maternal grandmother as her “birth mother”. My mom died in September of 2015, but if she were still alive, I would not have attempted to correct her own terminology. There is no way for me to second guess the meaning an adoptee or a such a mother may place on the role of that event in their lives. I am not either one.

Certainly, a woman who has given up a child for adoption is going to have a preference. How she might be identified by others would matter to her. After I began learning who my genetically related grandparents actually were (both of my parents were adoptees), I soon learned that in the mature adoption community “birth” mother is no longer considered the best choice when referring to any woman who gives up her child for adoption.

An adoptee might refer to her own self as a “surrendered daughter” but never as the “birth daughter”. Many times, her mother will have had other children subsequently, who she did raise. That mother would not call those children her “birth” daughter or son. When an adoptee goes into a reunion with the woman who gave birth to her – to that woman – she is the mom, though one who lost one of her children for a little while and now has her child back in her life. I understand such a sentiment. I lost (physical custody of but never legal custody of) my daughter for a little while during her childhood. I am grateful she is still in my life and accepts me. Very often, the adoptee (and this was true for my own daughter as well) will be expected by BOTH mothers to refer to them the same way, ie “Mom”. My daughter did not call her other mother “step-mom”. The adoptee (or my daughter for that matter) has no difficulty in keeping the two of them separate in her own mind.

I believe such issues are the truth for every person who’s family dynamics are complicated. Everyone who has been a part of that person’s life is “real” to them. My relatives due to the adoption of my parents – the grandparents, aunts, uncles and cousins – were always “real” to me. Duh. Hello? They live and breathe (or did, if now deceased). No one is more or less real than anyone else is. Everyone who was involved in an adoptee’s existence and their nurturing on this earth is “real”. I do not refer to the people I now know were my grandparents (deceased) or the still living aunt or cousins (who I have been fortunate enough to locate and meet) as “real”. But they are my genetic, biological relatives and the adoptive ones are not. This is a fact of DNA.

What the terminology I am highlighting here is intended to be focused upon is referred to as person-first language–a way of speaking about others that puts them first. In this regard, how we refer to someone else is informed by following their cues or asking them how they identify. This is being considerate or respectful.

So I did learn new terms when it came to referring to the people I am in community with in an adoption related group (all aspects). I now refer to parents who adopted children as “adoptive parents.” And so, now I call the people who raised my parents (who I viewed as my grandparents for over 60 years of my life) as the adoptive grandparents. I call parents who have surrendered children “original parents” – or the “original mother” or “original father” – the people who were the ones who conceived and gave birth to my parents, for example. “Adoptive” and “original” are the terms that make the most sense to me. I feel they are the most accurate in general and totally clear as to their reason and meaning.

The truth is that “birth parent” is still the most commonly recognized term for those not steeped in the issues around adoption. Too often, adoption places an overwhelming importance on the role of original mothers for their reproductive ability because this enabled someone, usually an infertile couple, to have a child to raise.

I believe that ALL original mothers matter to their sons and daughters. I am a feminist who has become aware of the stereotypes and issues of gender and class when it comes to the practices of adoption. Therefore, I have grown uncomfortable using the “birth” label in discussing adoption.

I believe all women should be valued by society; and sadly, too often they are not. Women are not here on this planet to simply give “birth” more human beings. A woman’s value is greater than her ability to reproduce. All of this is an explanation regarding why the label of “birth” has fallen out of favor with those in the adoption community to whom it matters the most.

The Fallacy of Temporary Care

My maternal grandmother and I both share a sad fact – we sought temporary care for our daughter – only to see that need for financial support and an inability to provide adequately for the basic needs of our child turn into a permanent situation.

My grandmother walked into a trap when in total desperation she took my mom to Porter Leath Orphanage for temporary care. That is a staff member of the orphanage holding my mom in the photo above. Georgia Tann got her hooks into my mom and was never going to let her go until she was placed with a repeat, paying customer.

In my case, I took my daughter to her paternal grandmother for temporary care while I tried to boost my financial foundation. However, her dad remarried a woman with a child and then they had another child together. I was not inclined to interrupt a situation that I could not better in my own circumstances.

Do I regret leaving her ? Absolutely. I knew nothing about the trauma separating a child from their natural mother causes. My parents were both adoptees – that meant they had been separated from their own mothers. I simply lacked the knowledge or understanding to know that I might be causing any kind of harm to the child I loved more than anyone else in the world.

The reality is – for both my maternal grandmother and for my own self – we lost physical (in my grandmother’s case – legal) custody of our children. Nothing changes reality but I can and do share what I have learned about the implications.