There are no heroes in yesterday’s NYT story about “Building Babies ,” and there no villains, but there also didn’t seem to be any easy calls to be made about who should or shouldn’t be parenting the children created by the surrogacy arrangements in the cases profiled. One surrogate mother was able to remove the twins she bore from the couple who paid for the sperm and egg donations as well as the implantation procedure. Another has gained partial custody to twins she bore for her brother using his partner’s sperm. In another case, it’s child welfare authorities, rather than a surrogate, who are concerned that a man who arranged the birth of another set of twins by donations and surrogacy isn’t a capable parent.
The question at the bottom of the first two cases is whether or not a contract to bear a child by surrogacy is enforceable, or should be. The third case is a question of whether the person who arranges a surrogate birth is automatically a parent-what rights does he or she have, and how difficult should they be to terminate? The one thing that stands out here, even amidst reasonably unbiased reporting, is that none of these cases can possibly be easy calls. If the man who arranged the birth of twins was clearly incapable of parenting them, it would be possible to terminate any and all rights he had to any children, no matter how he was or wasn’t biologically related to them. If, in either of the other cases, it was obvious which set of competing parental figures should triumph, it’s not likely they’d be news.
The fact that courts in Michigan might reach a different decision than courts in California might seem to argue for the creation of some uniform law concerning surrogacy, but some relationships are difficult, if not impossible, to legislate into black and white. Courts remain unsure what rights a “arranging” parents have to a child created through donation and surrogacy or a surrogate mother with no biological relationship has to the child she bore for good reason-society isn’t terribly clear on that, either, and there are no easy answers. But if we try to impose simpler solutions over complex issues before they’re fully worked through, the result will be cases like those of the nonbiological fathers profiled by the NYT Magazine several weeks ago-courts and judges who want to find and do the right thing, hampered by laws that interfere with their ability to do so.
The standard in any case where a child is involved centers around the welfare of the child, not the parent, whether biological, surrogate, adoptive, or otherwise. Concerned judges and advocates should stay free to consider every factor in deciding who will raise the children created when unusual surrogacy arrangements go wrong, at least until the dust settles around the questions. If a surrogacy contract is legislatively enforceable or unenforceable, we may be taking away a court’s best chance to make a difficult case turn out right.