Alex Blaze

New Jersey court decides against gestational surrogacy contracts

Filed By Alex Blaze | January 05, 2010 5:30 PM | comments

Filed in: Politics
Tags: pro-choice, pro-life, reproductive freedom, robinson, women's rights

Here's a complicated story from New Jersey. A gestational surrogate (i.e., a surrogate mother who's not genetically related to the child) is the legal mother of the twins she carried.

Angelia Robinson agreed in a contract to have her brother Donald and his partner's baby. The egg came from an anonymous donor; the sperm came from Donald's partner Sean. The kids went to live with the gays, and half a year later Angelia said she was coerced into the surrogacy arrangement and filed for full custody of the twins.

New Jersey's already one of the worst states in the country for surrogacy since their supreme court ruled in 1988 In the Matter of Baby M that, since women might second-guess their decision, they shouldn't be allowed to decide to be surrogate mothers. But Baby M involved a surrogate mother whose egg was used. The recent ruling expands that to gestational surrogate mothers.

From the NY Times:

"The surrogacy contract," the Baby M court found, "is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness."

Citing that passage, Judge Schultz wrote, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

More after.

While the issue of surrogacy, as any parental issue without a clear legal mother and father, will end up getting legally messy if people involve the courts, the court's reasoning in Baby M reminds me an awful lot of Gonzales v. Carhart, the case that in 2007 ruled that Congress could ban certain third trimester abortion procedures because, partly, women might come to regret the decision. The Court said, after stipulating that there's no evidence for this conclusion:

Some women come to regret their choice to abort the infant life they once created and sustained[....] Severe depression and loss of esteem can follow.

Indeed, the Court in this case, much like in Baby M and the Robinson's case, seems to acknowledge that, if we were certain people wouldn't regret their decision to do something, that we would let them do it. It's something that we don't see much elsewhere in the law. Perhaps because reproduction is one of the areas of the law that deals only with women? A man could conceivably come to regret donating sperm, but is that a reason to ban sperm donation?

Justice Ginsberg gave that argument the proper smack-down three years ago:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Ante, at 29.7 Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28-29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning."). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited. [...]

Though today's majority may regard women's feelings on the matter as "self-evident," ante, at 29, this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society."

The whole "women will regret it argument" is really a way to take away women's autonomy by substituting a hypothetical will (that she regrets being a surrogate in the future) for her actual will (that she wanted to be a surrogate when she agreed to be one). It's just another way to substitute the government's authority for a woman's autonomy: see, this is what you really want, you'll understand one day.

The New Jersey surrogacy cases take that one step further by bringing up the exploitation of women, which is effectively saying that women, even if they appear to be exercising their autonomy and speaking for themselves, aren't really exercising their autonomy and speaking for themselves. So the state's opinion can be substituted for hers.

It's ridiculous. Women are exploited all the time in ways that the state doesn't care about. Sure, a poor woman might agree to be a surrogate mother just for the money. But there are plenty of jobs that poor women don't particularly like but agree to do just for the money. Lots of those jobs force women to work long hours, be away from their families, work in dangerous conditions, and trade away their long-term health, and yet the state is doing nothing to curtail poor people being coerced into taking those jobs.

The book I'm currently reading has a large section on the textile industry, and that sector of the global economy sounds like one continuous labor scandal. And yet the job that the court is worried about is one that's done in the US, in the comfort of a woman's home, and that comes with nine months of free medical. There's the added joy that some surrogate mothers experience in giving a family a child they wouldn't otherwise be able to have. And, if it sucks, it's over in nine months.

Again, I'm not saying that it's impossible that a poor woman would make the decision to surrogate that they wouldn't otherwise make if they had money. But I don't see how that's different from so many other decisions poor people make that they wouldn't if they had more money.

The decision in the Robinsons' case (pdf) relied mostly on legislative silence on surrogacy and the Baby M case and its statements on women regretting their decision and being exploited if they're paid for surrogacy. It also included a bit on how it violated public policy in New Jersey because it doesn't consider the best interests of the child, although I've gotta say, the old-fashioned way of assigning babies to parents doesn't care much for the best interests of the child either.

I was going to say that one thing that's good about this case is that the trial judge acknowledged that genetics isn't the only way to establish parenthood, but then he seems to apply that the intended parent donating eggs to be fertilized and implanted in a gestational surrogate, which happened in a case he cited from California, then the intended parent would have more of a right to claim to be that child's legal parent than if she didn't:

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That seems to contradict the claim he made that was quoted by the NY Times:

Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not.

Either the supplier of the eggs matters or she doesn't. Which brings up the question: can a child have three legally-recognized biological parents?

I do wonder why Angelia changed her mind six months later. The court documents don't discuss it.... Did she have a maternal instinct that kicked in? Did she have a religious conversion and decide that a gay couple shouldn't raise "her" baby? Did the couple in question do something to the baby (although that probably would have gotten mentioned in the case)?

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Yes it's about control over women. Men "donate" their sperm all the time - it's not considered a scarce resource what with all the masturbating. Women have a limited supply of eggs and, thus, men have felt they needed to "guard" the women - for their own protection, of course. *rolls eyes*

Did you just compare a pregnant woman to a textile factory, and being pregnant to an unpleasant job?

So let's say a woman signs a surrogacy contract, becomes pregnant, and then decides that it was a bad idea. She wants to terminate the pregnancy. Wouldn't the contract prevent her from so doing? These contracts would then seem to turn reproductive choice on its head.

He wasn't necessarily comparing them, the point is that textile factories are far more exploitative and nothing is being done about them.

You say "reproductive choice", but this is where the "if it sucks, it's over in nine months" part comes in. Access to abortion is important for people who won't be able to support a child or people who hate kids and would just make the child's life miserable. For a surrogate mother, however, the birth of the child is not a life-changing event - the surrogacy impacts nine months of the mother's life, and that's it. A tattoo is more permanent and more likely to be regretted, like dozens of other things a woman could do and then change her mind about because she didn't think it through properly. Becoming a surrogate is simply something that should be given serious thought before it's done.

Wow - I don't even know what to make of this one. So are you saying the court could prevent a woman from terminating because she signed a contract?

Actually, you were the one who first said that a contract would prevent a woman from terminating the pregnancy. I was merely pointing out that "These contracts would then seem to turn reproductive choice on its head." is twisting the matter a little. A surrogate mother isn't reproducing in the strictest sense, she's merely bearing the child.

Personally, to be honest? I'd never really heard of contracts being involved in surrogacy, and according to wiki that's because commercial surrogacy is illegal in Canada, and I can't see an arrangement between friends or relatives close enough to do it in the first place requiring a contract. Unfortunately, I can't really offer an opinion on situations under American law as those (the laws, that is) tend to be a lot less straightforward and I never learned legalese. But I would guess that in places where commercial surrogacy is legal, a contract stipulating the carriage of the child would prevent abortion. I'm not saying it's right (or even true), it's just my guess as to how it would be.

Friends or family close enough to consider it in theory wouldn't need contracts. Or at least I'd hope they wouldn't. Reducing something like this to a contract is in my view dehumanizing.