Surrogacy

Abstract

It has long been assumed that the woman who carried and gave birth to a child is its legal mother, possessed of all moral and legal rights to custody. And if she is married when she gives birth, then it is presumed in law that her husband is the child’s father. But recent scientific and technological changes in Assisted Reproductive Technology (also known as ART), coupled with the practice of surrogacy, have led many to challenge these assumptions. We here consider the case of a woman who gestates or gives birth to a child while serving as a surrogate for a married couple who hired and paid her for the “job” of being inseminated with a pre-embryo grown in vitro from their genetic contributions. The surrogate carries the fetus to term, and she is expected to deliver the child to the couple when it is born. If the surrogate refuses to comply, she has a long history of precedent cases supporting her gestational claim to custody of the newborn child. In this chapter we will discuss the normative underpinning of the principle that gives preference to the gestational or birth mother. Why should the state prefer her to other claimants for custody, for example, those who claim a right to the child on the grounds of their genetic relationship to the child, or those whose claim is based on an existing contract for the gestational services of a surrogate? In this discussion we will look at several different answers from the perspective of natural law, Kantian and utilitarian ethical theories.

“Public policy has always been that children should remain with and be brought up by both of their natural parents.” J. Harvey Sorkow, In re Baby M (1988)

“The judge said Mrs. Johnson [the surrogate mother] was a ‘genetic stranger’ to the baby and did not acquire genetic rights to claim parenthood through her surrogacy.” New York Times (1990)