There is an aptly described “tumultuous” surrogacy case that was recently decided by the Iowa Supreme Court. The case gives a great example of how NOT to proceed with surrogacy. Let’s just say everyone involved acted badly. You can read more about it over at Ellen Trachman’s column published by Above the Law. She calls the case a “half-victory” and I couldn’t agree more.
From a legal perspective, we use the saying “bad facts make bad law”. And it couldn’t be more true than in this case.
The Court determined that the gestational carrier (the surrogate) was not a biological parent of the child and thus had no standing as a parent. The Court found that the genetic father was the only biological and legal parent of the child. Sounds good, right?
Well hold on a second–in doing so, the Court adopted an extremely narrow definition of biological, determining that it only referred to genetic parents.
There are many circumstances where a woman could be in the exact same biological position as a gestational surrogate but where it would be incredibly unfair to fail to recognize the mother-child legal connection. A woman who has every intention of parenting could become pregnant from donated eggs, from her female partner’s eggs (“reciprocal IVF”), or from a donated embryo. Each of these situations arises from the same medical and biological mechanisms as gestational surrogacy. In each of these situations, the mother would not have a genetic link to the child. It is these legal relationships that the Iowa Supreme Court has put at risk because there is only a gestational relationship with the child. And apparently, in Iowa, gestational isn’t good enough.
And it’s only a matter of time (probably not much time) before an angry spouse pulls the “you’re not the real mom” card during a contentious divorce. Would a divorce court feel compelled to adopt the narrow definition of “biological” that the Iowa Supreme Court just created, thus taking a child away from the only mother he’s ever known. The Iowa Supreme Court’s ruling certainly opens up this possibility.
The solution is simple–ignore genetics. Allow the intended parents in a surrogacy arrangement to become the legal parents irrespective of genetics. This is how we handled things here in New Hampshire. Let this Intended Mother become a legal parent via the surrogacy route even though her egg was not used. Enforcing a surrogacy agreement, but only for a genetic parent, creates a second class category of parents via surrogacy. Let’s talk about some scenarios where this could be a problem:
It opens the door for the genetic parent to wield the opportunity to adopt the child over the non-genetic parent’s head. Not a good situation for the kid involved.
For gay male parents, the surrogacy process often results in a set of twins, once genetically related to each dad. In Iowa, these kids would have different legal parents. If the dads split up, the custody of the twins would also be split up. And that’s not a good thing for the kids.
And what about a gestational surrogacy case involving both donated sperm and donated eggs? Under the Court’s rationale, that child would have no legal parents at all.
It just simply doesn’t make sense. And that’s never good for the kids involved.
