Surrogate parenting remains tricky after 20 years


SAN DIEGO, November 17, 2012 – The law continues to wrestle with technological and societal realities that didn’t exist a generation ago. Society has moved far too slowly to catch up with the modern universe of surrogate parents, in vitro fertilization, grandmothers bearing their daughters’ children, same-sex marriages, various forms of domestic partnerships, and all manner of step parenting and adoption.

While elected officials argue over what should be done, real-life issues keep coming up in front of judges who lack the legal structure and guidance to deal with them in an equitable way across all of the states’ courts, and it is real moms, dads, and kids who suffer.

Remember the “Baby M” case? A young woman named Mary Beth Whitehead agreed to act as a surrogate for Elizabeth and William Stern, allowing one of her own eggs to be artificially inseminated. But after the baby was born, Whitehead went back on the deal and refused to give the Sterns the baby. The New Jersey Supreme Court ruled that a mother could not be forced to surrender her biological child in 1988, and Whitehead was declared the legal parent.

In the 24 years since then, surrogate arrangements have increased, but the law remains messy. Some states like New York and Michigan completely banned using surrogates. You can even go to prison for it in the District of Columbia, in theory anyway. Some states say the agreements aren’t enforceable.

Celebrities like Bill and Giuliana Rancic are among the thousands of couples who enter surrogacy arrangements every year. Photo: Life & Style Magazine.

Still, it’s estimated several thousand couples in the U.S. enter into surrogate agreements. Well-known celebrities like Sarah Jessica Parker and Giuliana Rancic have publicly discussed their surrogate arrangements.

In late October, judges of the New Jersey Supreme Court were faced with yet another difficult question regarding surrogate parenting. Because the wife of a couple who wanted children was infertile, their baby was conceived with a donor egg and the husband’s sperm, then carried and delivered by a surrogate. The surrogate legally waived all her parental rights. The couple got a court order to name the wife as the mother on the baby’s birth certificate.

But after a nurse questioned putting the wife’s name down and got the state registrar’s office involved, the registrar refused to list the wife as the mother unless she went through a legal adoption process.

The couple challenged this decision in court, because when a baby is born to a married woman, her husband is automatically considered the legal father whether he is the biological father or not. But this is not true when it is the reverse.

An appeals court ruled in favor of the state registrar, and the New Jersey Supreme Court failed to reach a decision either way. So now, there is a child without any legal mother and the only option is going through the adoption process. This is a lengthy, expensive process and in the meantime there are all sorts of pitfalls that can happen.

This is the exact reverse of the situation in California a month ago. California Governor Jerry Brown vetoed a bill that would have allowed judges to recognize more than two legal parents if it is determined to be “required in the best interests of the child.” It would have allowed a previous custodial or biological parent to have parental rights and take care of a child if the two current legal parents are no longer capable, as long as doing so is required to protect the child’s best interests.

The problems Governor Brown expressed concern about simply haven’t materialized the states where similar laws exist, including the District of Columbia, Delaware Maine, Louisiana and Pennsylvania.

To be blunt, all of this is ridiculous. It gets to me as an attorney working with families every day, and also as a parent. The law is creating orphans where we should not. There is now a child in New Jersey born motherless because of outdated prejudices that no longer make sense thanks to the brave new world of reproductive technology that have make it possible for hundreds of thousands of people to become parents.

Imagine what could have happened over the past three years in this motherless child’s life. Let’s say Dad was out of town and unavailable, and there was a life-threatening medical emergency with their child. There would literally be no one to make legal decisions for the medical personnel. Would a delay of even a few minutes while everyone tried to figure out what do possibly be the different between life and death? It might sound dramatic but these decisions take place every day and seconds count.

Once again I ask myself, why would we deny any caring, willing adult the right to be a loving parent to a child? We must come to grips with reality of surrogate births, same-sex marriage and parenthood, assisted reproduction and other changes in medicine and society that create new possibilities for nontraditional households.

Forget the arguments about “messy cases” or “unintended consequences.” We have all of that now, with few sensible guidelines. The law is in the Middle Ages when it comes to medical technology and the modern definition of family.

This case really gets to me. Americans have made a TV show called “Modern Family” the most popular comedy on the air, and the actors and writers win truckloads of awards. More and more people are accepting and “get it” that there are many definitions today as to what it means to be a family. These families and especially these children deserve recognition and protection under the law.

Right now, the law and society is failing these families and these children, and we should be ashamed of it. In the two decades since Baby M, not much has changed.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.

Copyright © 2014 by Fleischer & Ravreby, Attorneys at Law



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