Considering how perpetually en vogue it is to create and uphold laws about what women can and cannot do with their bodies, it shouldn’t come as a surprise that in some parts of the world, surrogacy is illegal. In case you’re unfamiliar, surrogacy is when a woman carries a baby to term that is not intended to be her own. A woman who cannot have children may seek a willing surrogate into whom she might have her own eggs and her partner’s sperm implanted. Essentially, a surrogate functions as an incubator.
Based on the type of surrogacy and the terms of the agreement, though, the surrogate’s own eggs may be used in the pregnancy — which complicates the idea that the baby isn’t really hers. We explore the legal and political tangle that is surrogacy below:
Two Types of Surrogacy
With traditional surrogacy, the surrogate woman’s eggs are used, which means that she is the biological mother of the baby. The surrogate is inseminated with the sperm of a male partner (the baby’s intended father).
In gestational surrogacy, the intended mother’s eggs are placed in a petri dish, fertilized with either the sperm of the intended father or donor sperm, and placed into the surrogate’s uterus via in vitro fertilization. Through this method, the surrogate has no genetic link to the baby.
Traditional surrogacy is often used by same-sex couples who wish to have a child but, for obvious reasons, do not have both sperm and eggs needed for fertilization. In this instance, the surrogate’s own eggs may be used — but this can present a complex legal question: is she or is she not the baby’s mother?
There have been several high profile traditional surrogacy cases where, following (or even before) the baby’s delivery, the surrogate changed her mind about giving the baby to the intended parents. If a legal battle ensues, since she is the baby’s genetic mother, it presents a moral quandary for a court: no matter the paper trail of legal agreements between herself and the intended parents, the fact remains that she is biologically the baby’s parent.
The Case of Baby M.
One of the most well-known surrogacy battles occurred in the United States in 1986. William and Elizabeth Stern placed an ad in New Jersey papers seeking a surrogate to help them have a child. Although Elizabeth wasn’t technically infertile, she had Multiple Sclerosis and was concerned about the complications a pregnancy might cause. A young mother named Mary Beth Whitehead responded to the advertisement and the Sterns accepted her without much consideration. Presumably Whitehead seemed trustworthy enough and, since she already had two children, was necessarily procreant.
Everything went well until the baby was born, when Whitehead, who was genetically the baby girl’s mother, decided that she wanted to keep the baby. She sued the Sterns for custody. The New Jersey Superior and Supreme courts vacillated between denying and upholding the validity of the original surrogacy contract, and ultimately ordered New Jersey family courts to determine who would have legal custody of the child.
The court used “best interests of the child” analysis in making its decision, and ultimately awarded custody to William Stern. The Sterns were well-educated and financially well off. Although Mrs. Stern had M.S., the couple was more than able to provide for the child. Whitehead, on the other hand, was of a lower socioeconomic class and had other children.
Whitehead was later granted visitation rights, but when Baby M., named Melissa, came of age, she terminated all of Whitehead’s legal rights and, through adoption, became the legal daughter of Elizabeth Sterns.
The case was the first of its kind in the United States and set a precedent for the contracts and, eventually, suits that cropped up as a result of surrogate agreements gone wrong. It particularly set the tone for same-sex couples, who, over the next several decades, would turn to surrogacy and other adoption arrangements in order to begin building a family.