New Jersey ruling allows gestational surrogate mother to file for custody

From the New York Times, a New Jersey Judge ruled that a woman who was the gestational surrogate for her brother and his male partner can file for custody of the children (they had twins). Gestational surrogate means that her eggs were not used in the pregnancy–her brother and his partner used their sperm and donor eggs to create the embryos that were then implanted in her uterus. She gave birth to twin girls, and is now fighting for custody. According to the NY Times, she is claiming that the surrogacy agreement was coerced.
This Judge cited the famous Baby M case as precedent, which was one of the first legal battles over these types of surrogacy arrangements in the US. The Baby M case was the first to give the surrogate mother rights–but in that case, the surrogate was also genetically connected to the child who was born from her egg as well. What’s interesting is that the woman in this case, Angelia Robinson, is being represented by the same lawyer who represented the surrogate mother in the Baby M case, Harold Cassidy.
Surrogacy is undoubtedly a complicated process. It brings up a lot of questions about parenthood, genetics, parental rights. It’s becoming a more common practice, probably because of advances in genetic technologies and also a new international surrogacy market. It’s also one of the technologies that allows queer people to parent, and for gay men who can encounter difficulty adopting because of restrictions based on sexuality (and who can’t give birth on their own using donor sperm), it may be one of their only options.


I have to admit that I was surprised a judge would rule in favor (although this is not the final custody hearing, but does allow Angelina to file for custody) of the non-genetic parent. But carrying a child in your womb for nine months is no small feat and brings up understandable questions about relationship and rights to a child.
I have mixed feelings about surrogacy. While I understand the desire to parent, and to feel genetically connected to one’s children, it seems like a long way to go for that. I also question the financial transactions involved in surrogacy arrangements, particularly when the women involved are low-income or in the developing world. I don’t think our legal system, which has a narrow definition of parenthood, is adequately prepared to handle these modern arrangements that don’t allow us to clearly identify a mother and father.
I think we’ll see more and more in the legal realm on practices like surrogacy as the practice gains popularity and these types of conflicts arise.
Related:
The real life accompaniment to baby mama
Gay men becoming daddies
Ricky Martin a new father
Thanks to Taryn for sending us this link

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25 Comments

  1. brittany33
    Posted January 4, 2010 at 3:56 pm | Permalink

    You said the state has a narrow definition of parenthood and yet you identified the possibilities as a mother and a father….maybe it was unintentional as the story you were writing on was about two fathers…..but it still irked me.
    These ‘modern arrangements’ do not allow us to identify the parents of the child whether be a single mother or father or any given combination of mothers and fathers.

  2. voluptuouspanic
    Posted January 4, 2010 at 4:07 pm | Permalink

    I think surrogacy is a fascinating, frustrating, and complex issue. (I do research on paid work involving the female body, so I’ve read some stuff on surrogacy.) I have mixed feelings about it. However, in the Baby M case and this case, I’m kind of wondering about two things.
    One, when the gestational surrogate (coercion aside) is not biologically related to the fetus, is that essentializing motherhood? And what are the implications there? The ability of the female body to carry and give birth to a child is a unique experience, of course, but when should that be imbued with the inherent properties of motherhood? I’m wondering if that line can be navigated without a disservice to either.
    I guess I’m skeptical of what I perceive as knee-jerk reactions (such as a quote in the article) claiming surrogacy is exploitative of women.
    And two, what are the implications for (biological) LGBTQ parents when their fitness as “adoptive” parents is questioned?

  3. rhowan
    Posted January 4, 2010 at 5:01 pm | Permalink

    I think that was sortof the point Miriam was trying to make. The state is used to dealing with parenthood as a one-mother one-father (usually genetically related to the child) arrangement, and when the structure differs the legal system falters.

  4. A female Marine
    Posted January 4, 2010 at 6:10 pm | Permalink

    I read another article recently about a similar (maybe the same?) case. What made me the most uncomfortable about surrogacy was when a person paid for an anonymous egg, an anonymous sperm, and then used a surrogate to grow their child. Like it was a science project, only you end up with a human that isn’t related to the only parent they know and has no idea where they came from because the egg/sperm donors were anonymous.
    I understand using a surrogate if a woman can’t carry a child or when two gay men want a child and use one’s sperm plus an egg and a surrogate to create one.
    But something about people creating an unrelated-to-them child with two anonymous donors instead of adopting a child that already exists creeps me out and I’m having trouble explaining why…

  5. Athenia
    Posted January 4, 2010 at 7:31 pm | Permalink

    I’m wondering the same thing—does this mean that since women invest 9 months of their body to a baby that they have a built in right to that baby that no father could ever have?

  6. Gopher
    Posted January 4, 2010 at 7:31 pm | Permalink

    This is sad. They dont recognize homosexuals as qualifiable for parenting but yet they give a woman who is neither the parent, nor the genetic parent the child.

  7. Gopher
    Posted January 4, 2010 at 7:35 pm | Permalink

    Wouldnt this be considered a form of incest?

  8. writeoutloud
    Posted January 4, 2010 at 8:11 pm | Permalink

    While families can come in many forms and parents can be any combination of genders, genetically speaking every child has one biological mother and one biological father. That’s basic biology.
    The difficulty in this case stems from the fact that the birth mother is not the same as the biological mother and neither was supposed to be a parent to the twins by prior agreement. The law is having enough trouble dealing with surrogacy cases in which the birth mother is also the biological mother.

  9. ellid
    Posted January 4, 2010 at 8:28 pm | Permalink

    I wonder if the surrogate underwent some sort of religious conversion and now believes that gay men are unfit to be parents. Not only is this breach of contract, it’s certain to rip her family apart, and I can’t see why she’d want that.

  10. Mytrr
    Posted January 4, 2010 at 9:14 pm | Permalink

    This is a really thorny topic just thinking about the woman’s role.
    If she’s granted parental rights, then a lot of people will use this case of confirmation of a deep bond between mother and fetus/baby. While some women may experience a deep bond with the child they carry, others don’t. I can see cases like this being used in the abortion debate.
    If she’s denied parental rights, then there’s the issue of women being reduced to incubators, and this can also be used in the abortion debate. Some people could use this case in support of forced birth followed by adoption.
    That was just the first thing that popped into my head. Personally, I’m really uncomfortable with manipulated conception. I understand and sympathize with those that want biological kids and can only make that happen with medical intervention, but that’s not a choice I would ever personally make.

  11. Auriane
    Posted January 4, 2010 at 9:42 pm | Permalink

    I wonder how, exactly, one can be “coerced” into being a surrogate, especially when so much work goes into the task? There doesn’t seem to be much more exposition on this topic in the articles I’ve read, but yes — to agree with a few other posters here — it does seem as if the surrogate mother underwent some kind of religious transformation (another coercion of sorts?) regarding what she was doing, and acted on that.
    If anyone has any ideas, I’d be interested in reading them!

  12. Unequivocal
    Posted January 4, 2010 at 9:49 pm | Permalink

    Nope. Incest refers specifically to sexual intercourse between family members, so surrogacy wouldn’t qualify.

  13. rhowan
    Posted January 4, 2010 at 10:03 pm | Permalink

    Sorry? I don’t understand your question. Is there a joke here that I’m not getting?

  14. aleks
    Posted January 5, 2010 at 5:17 am | Permalink

    A long running, very dull joke, a.k.a a troll.

  15. gadgetgal
    Posted January 5, 2010 at 9:07 am | Permalink

    I think surrogacy is a very thorny issue when money is involved. I know in the States, since capitalism is such a big part of society, there can be large amounts of money received and also many legal issues that arise from this. In the UK surrogacy is allowed, but you are not allowed to make any extra money off it, i.e. you can ask for money for anything specifically related to the pregnancy or the birth, but you can’t make any profit from it. Weirdly legal documents are invalid – over here if they had all signed agreements for her to hand over the child and then she decided not to there is technically no legal way to stop her from keeping it. However, most surrogates here are found through a few specific agencies as opposed to any private arrangements, and minimum requirements include health and psychological tests, and you also have to have at least one of your own children before they’ll even consider adding you to the register (they’ve found there are less problems handing the child over if you already have one of your own).
    I’m not saying all the surrogacy problems would be solved by making profit from it illegal, but there seem to be less cases here where someone refuses to hand over a child, and it seems to be more of a philanthropic act rather than a means to get out of poverty. We do the same with adoption – you can’t just “buy a baby” like you do everywhere else, you have to be approved by the social services over a period of time, and then they handle the adoption, it’s all government run, no money involved. Of course, we allow gay couples, lesbian couples and single people to adopt too, so I guess that would only work over there if you change the laws first!
    Specifically with regards to this case, I just feel for all of the people involved – it must be heartbreaking for everyone, and I can only hope however it turns out the children are ok. I really hope all of the adults involved can come to some kind of agreement. Having three people love you so much can be a positive thing if they all really try to make it work instead of battling over where the kids sleep at night!

  16. agnostichaos.livejournal.com
    Posted January 5, 2010 at 10:43 am | Permalink

    This is an issue that needs to be ironed out. LGBTQ couples who plan to have children in this way and make these legal arrangements prior to the birth of the children need to feel safe that these legal arrangements will be honored.

  17. Sleepy
    Posted January 5, 2010 at 11:47 am | Permalink

    The pre-arranged agreement should be honored, because if it’s not, it makes any such agreement meaningless. (And that definitely has implications for homosexul men particularly. Homosexual women and heterosexual couples overall would be affected to a much lesser extent.)
    However, there should be some room for compassion for the surrogate mother. Especially considering the rush of hormones at birth that can have an intense emotional influence on the mother. This is something that’s very difficult to anticipate or understand before one goes through it. (I don’t know if this is what happened in this woman’s case, but I can imagine it happening in others.)
    Lastly, how does this compare or contrast with sex work? It’s essentially paying someone for the use of their body, and easily arguable that this it’s a more intimate activity than sex. To what extent is it treating a woman like a machine?

  18. Phenicks
    Posted January 5, 2010 at 4:12 pm | Permalink

    1) She is a grown adult woman, not a mindless drone of a child. She can enter into contracts and this one was pretty clear what her role was in all of this. As a woman who had chosen NOT to raise childrne of her own I’m afriad of the rush of giddiness she provided pro-lifers with by declaring such a close emotional attachment to a child she was PAID to carry that is NOT her own biologically.
    2) She screwed her brother royally. He wanted to use a surrogate he thought he could trust and it turned out his own sister was not to be trusted. I KNOW a bond can be made between pregnant woman and unborn child but that bond doesn’t exist by default. Saying so makes abortion something that only freaks of nature who can’t or don’t make that bond with their unborn child do. Let’s not go there shall we.
    3) THESE AREN’T HER CHILDREN. If she no longer wanted to be pregnant, she could do that. But the egg that created this baby didn’t come from her. She’s trying to take these little girls away from their fathers. As their aunt I’m sure she’d have some access to them but demanding, through the legal system, to be recognized as the mother of a child you were PAID to gestate when you have stated you want no children and as a result have NONE biologically of your own is terrible. She can have children if she wants children, those little girls aren’t her children.

  19. GrowingViolet
    Posted January 5, 2010 at 8:34 pm | Permalink

    The woman gave birth to the child – how is she not a parent? And gays are allowed to adopt in NJ.

  20. Gopher
    Posted January 5, 2010 at 9:51 pm | Permalink

    Claiming to be mother of her brothers kid is kind of creepy. If was that kid I wouldnt want that.

  21. kungfulola
    Posted January 7, 2010 at 4:08 am | Permalink

    Some people might argue that to be the flip side of the “bio-fathers have no say in whether a woman may abort” coin.

  22. kungfulola
    Posted January 7, 2010 at 4:11 am | Permalink

    That was a different case, one which involved a heterosexual couple. Here is the NYT article about those families.

  23. jeana
    Posted January 8, 2010 at 9:38 pm | Permalink

    This story and the other one kungfulola above referenced are ridiculous. Women who enter a contract to provide a service to someone should not have the right to go back and keep the kid because they feel a “bond”. Who cares if they feel a bond? Every time I read about one of these cases, the surrogate doesn’t even pay the couple back for all of the medical expenses and extras they paid. If I order a custom made car and pay for it, how dare the manufacturer decide to keep it because they took a liking to it. A baby is not a car, but still. Same concept. She should be ashamed of herself. Selfish.

  24. jeana
    Posted January 8, 2010 at 9:45 pm | Permalink

    Who cares if the kid isn’t related? Is it creepy to go to an orphanage and look at all the choices and pick out the kid you want? Why does a kid have to be related to you? One very good reason for choosing an anonymous egg and sperm and then a different woman all together to carry it is to prevent situations like this from occurring in the first place. Although I read about one with similar circumstances (except that the man’s sperm was used) in which the non-related surrogate initially won custody because she wanted the babies. Finally a judge with a brain took them away from her permanently. The surrogate even was successful in getting the father to pay child support to her. That was pretty outrageous.
    Pay me to have your kid, pay all my expenses, I’ll give birth, then keep the kid, then you can pay me child support. Yay.

  25. jeana
    Posted January 8, 2010 at 9:49 pm | Permalink

    That article seemed pretty biased against the mother who paid for the twins. It also made the surrogate seem like some kind of savior. Because one has a mental illness, one should not lose parental rights. Especially if you take your meds.
    The surrogate in the story seemed kind of surprised that the network of surrogates were enraged at her and even raised money for the couple whose kids she stole. Which makes sense. It makes you not want to trust surrogates.

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