The Sticky Issues Surrounding Surrogacy/Gestational Carriers
Today I have included a guest post to mix it up alittle for those of you who are followers. Enjoy!
We’ve come a long way since the early days of assisted fertility and conception and the first IVF baby. Childless couples who yearn to have child who’s biologically theirs (fully or partly) are now able to move beyond adoption and try surrogacy and ovum and sperm donation. Advantageous as they are, these issues are a major cause of legal and ethical concern. While certain groups of people abhor and are violently against any form of conception that doesn’t involve the legal sexual union of a man and a woman, there are others who are concerned about the opportunities for misuse that these kinds of fertility treatments pose.
And so we have the laws that determine ownership of the child when the sperm and/or egg are from different people. Since nature intended the woman to be the carrier and sustainer of the child for the first nine months, surrogacy involves a third party who has to be female. And this gives rise to a new complication – how do we assign ownership or claim a lack of it when a woman “rents” out her womb for nine months? It’s a well known fact that motherhood starts the moment the child is conceived – the woman carrying the child is able to feel a distinct emotional connection and bonding with the baby even before it is born.
And this is why it’s understandable that some surrogate moms are reluctant to hand over the children they have carried to term to the intended parents as they originally planned to. Looking at the issue beyond the emotional context, the law says that a surrogate is deemed the biological mother if her own eggs have been used for the fertilization process. The sperm donor, even if he is the intended father, is just that in the eyes of the law – an anonymous sperm donor who has no biological claim over the child conceived and born. On the other hand, if the child is conceived using the intended mother’s egg (or a donor egg) and the intended father’s sperm (or donor sperm), the surrogate has no biological claims over the child she carries.
It is in the best interests of intended parents to make sure that they take care of all the legal loopholes that are possible when they want a child through assisted fertility methods, by hiring a good agency and by retaining sound legal counsel to draw up the necessary papers well before the whole process begins. A few complications that may arise are listed below:
- The surrogate mother may not want to give up the child once it is born.
- The intended parents may be separated or get divorced before the child is born. In this case, either both parents may not want the child or both may want it and an ugly custody battle may be in the offing.
- One of the intended parents or both of them may die before the child is born.
- If the couple is of the same sex, they need to take into consideration the local laws relating to surrogacy and same-sex adoptions.
Ensuring that nothing is left to chance is the only way to save yourself a bunch of emotional and legal hassles and take home a healthy baby that’s all yours in nine or ten months.
By-line:
This post was contributed by Holly McCarthy, who writes on the subject of jobs in criminal justice. She invites your feedback at hollymccarthy12@gmail.com
Theresa M. Erickson, Esq. Subscribe to my blog at:
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
