Would you ask your mother to carry a child for you? It’s obviously not the most ideal situation, but it’s not completely unheard of. A U.K. woman has won the rights to use her deceased daughter’s frozen eggs to give birth to a grandchild.
The 60-year old woman fought The Human Fertilisation and Embryology Authority (HFEA) to allow access to her daughter’s frozen eggs, but was denied because the daughter had not given her full written consent prior to her death to allow her mother to be a surrogate. The daughter, identified only as “A”, died of cancer at the young age of 28, but had expressed to her mother, identified as “Mrs. M”, that she desperately wanted her mother to have and raise her child after her death.
After being denied, the parents planned to take their daughter’s eggs to a fertility clinic in the U.S. to be impregnated with donor sperm, but HFEA refused to let the parents do so. The parents brought legal action and were denied by the High Court; among a myriad of reasons, the Court of Appeal ruled in favor of the parents and remitted the case back to HFEA for further consideration.
A daughter’s wishes should absolutely play a role in any decision about what’s to happen with her own donor eggs, but U.S. laws don’t always play by a biological (or contracting) mother’s wishes.
Some Surrogacy Laws in the U.S. Consider the Surrogate the Mother
There are cases throughout the U.S. where a grandparent gives birth to a grandchild via surrogacy. For those that desperately want a child and are unable to have one on their own, this can be a saving grace. I imagine in the cases, like above, where a grandparent is the surrogate this is a non-issue, but what happens when the surrogate doesn’t want to give the baby up to the contracting parents? Legally speaking, many states would recognize the surrogate as the legal mother.
Laws surrounding surrogacy aren’t regulated by the federal government, but rather the states are left to decide and they vary throughout the U.S. Seventeen states are considered surrogate “friendly” and recognize some form of surrogacy agreement. There are however states, 5 to be exact, that absolutely refuse to recognize any kind of surrogacy agreement.
What does this mean? Well, in those states that won’t recognize an agreement, the biological parents are out of luck if the surrogate decides to keep the baby—in these states, the surrogate is considered the legal mother of the child.
Surrogates and contracting parents in some states even risk potential criminal charges. California recognizes all surrogacy agreements, whereas Michigan considers it a felony to enter into such a contract. You read that right, a felony!
Child Custody Goes to Legal Parent
What does that mean for the biological or contracting parents? Would they have custody rights? Just as with any other legal issues surrounding child custody, custody is going to whomever is considered the mother of the child according to state law, whether that be the birthing mother or the biological mother.
California says child custody will go to a contracting parent, regardless of biological ties. Michigan says the woman that gives birth to the child is the legal mother of the baby, despite the fact that she may not have any biological ties.
In states like Arkansas, which has a strange mix of surrogacy laws, the biological father and his wife would be recognized as the legal parent. This is true even if the wife isn’t the biological mother. Seems a little strange, but if you had biological donors that were not married, then the biological mother could potentially get gipped out of legal rights.
In order for an unmarried biological mother to automatically get legal custody rights of the baby in Arkansas, the biological donor father would have to be from an anonymous donor. The woman that gives birth to the child is considered the legal mother of the baby, despite the fact that she may not have any biological ties.
Laws surrounding surrogacy are primarily geared towards the rights of the surrogate or the rights of the biological parents. Wait a minute, anyone see something wrong with that sentence? Of course the rights of a surrogate and contracting parents are important, but what about the rights of the child? Although U.S. surrogacy laws are by far the most progressive compared to other countries, we still have a long way to go.