Surrogacy and the Right of the Child
May 9, 2017
by Mary Ann Mason and Tom Ekman
Mary Ann Mason is the COO of the Paul Ekman Group and the wife of psychologist, Paul Ekman. She is a national expert in children’s rights, child custody issues and family law and policy. Tom Ekman is a writer, teaches environmental science and is Paul Ekman’s son.Their new book, Babies of Technology, was recently published in April 2017 (Yale).
The surrogate mother option, sometimes called “rent-a-womb,” has caused far more legal difficulties and provoked greater emotional concern than sperm or egg donation. In the U.S., not all states allow surrogacy, but those that do, support a huge industry which caters to both domestic and international clients. U.S. surrogates offer the advantage that any baby born in the U.S. is automatically a U.S. citizen. The states that support surrogacy also welcome same sex couples. Internationally, surrogacy is often banned or limited to heterosexual couples who are infertile. Most often these nations across the world who ban surrogacy base it on “the best interest of the child.”
Traditional surrogacy, in which the surrogate mother is also the biological mother, may be the oldest form of assisted reproduction. Genesis tells of Abraham’s servant Haga bearing a child to be raised by his genetic father, Abraham, and his infertile wife Sarah. His name was Ishmael.
The modern version of surrogacy, which became available once in vitro fertilization was possible, is gestational surrogacy. The surrogate is implanted with an embryo and carries the child to term. The surrogate is not the genetic mother. It is most often the embryo created by the couple who retained the surrogate, but in many cases, the egg is a donor egg. The child will have no genetic relationship to the surrogate. The genetic mother may be either the “intentional” mother who arranged the deal, or an anonymous egg donor.
No state law has shown concern for “the best interest of the child” in tackling the surrogacy issue. In 1993, the law in California stated that “the woman who gives birth” is the mother. Most states have been either silent on the issues or have forbade surrogacy. In the first real challenge to this law, the California Supreme Court did not dwell on the significance of pregnancy and childbirth, or on the genetic connection between the child and Ms. Calvert, the woman who contracted with the surrogate. Instead, borrowing from intellectual property law, the court articulated a new doctrine of “intentional motherhood”:
When the two means (genetic tie and giving birth) do not coincide in the same woman, she who intended to bring about the birth of a child that she raised as her own–is the natural mother under California law.
With this reasoning, the court awarded the child to the Calverts.
The lone dissenter, Judge Joyce Kennard recognizing that both women had substantial motherhood claims, asked what happened to consideration of “the best interests of the child?” Criticizing the concept of intentional motherhood, she pointed out,
The problem with this argument, of course, is that children are not property. Unlike songs and inventions, rights in children cannot be sold for consideration or made freely available to the public.
After the Calvert v. Johnson decision, California became a surrogacy destination, drawing intentional parents and surrogates from other states, and also from other countries which restrict the practice. California also allows the client to choose the child’s sex which appeals to many clients — particularly those from China, who prefer boys. There are numerous surrogacy agencies in California as gestational surrogacy has become the preferred option for most infertile couples. It has also become the standard choice for the growing numbers of same-sex partners.
The massive 2015 earthquake in Nepal shed light on the complicated world of international fertility tourism. In the aftermath, Israelis – with the help of the Israeli government and medical planes – flew to rescue their newborn babies. Most of these were babies of gay couples (Israel does not permit same-sex male couples to retain a surrogate, despite being billed as the “IVF capital of the world.”) Altogether, 26 babies were rescued.
Nepal is one of the few countries that allow same-sex male couples to use surrogates. In the past, India and Thailand were popular options, but both countries have changed their regulations to prevent gay couples from becoming parents there. The cost of surrogacy in Nepal is a fraction of what it is in the U.S. All of the surrogates are Indian nationals, but they carry out the pregnancy in Nepal.
The multinational ART origins of the Greengold baby, featured on National Public Radio, are incredible. The sperm came from Israel, where it was frozen and flown to Thailand to meet a South African egg donor. After the egg was fertilized, the embryo traveled to Nepal and was implanted in the Indian woman who served as the surrogate mother.
Gestational surrogacy also opens up the whole realm of using designer eggs as a possibility. Some clients simply want the best egg possible – tall, intelligent, attractive – rather than a traditional surrogate’s genetics. There is a huge market for premium eggs, which can be purchased from large cryobanks or even online. This can create a situation in which a child effectively has three mothers: an egg donor mother, a surrogate mom who carried and gave birth to the baby, and an intentional mother — the client in the contract.
What are the children’s rights, if any, in this contentious area? Should the child have the right to know the identity of their surrogate and the surrogate’s medical and genetic information when they turn 18? Do the children have the right to be protected from potential damage in utero from a surrogate who may have bad health habits or carry a disease? Can the in utero experience affect the expression of their genes (a growing area of study known as epigenetics)? How do other countries deal with these issues, if they allow surrogacy at all?
The entire discussion of medical issues and surrogacy is shifting toward the emerging field of epigenetics, which studies the way one’s environment can cause certain genes to “express” themselves in the individual…and possibly their offspring. One study found a link between a mother’s diet throughout her life — i.e., prior to impregnation — and her offspring’s risk of future obesity. Mounting evidence suggests ova and sperm can become damaged by habits such as smoking. Even more remarkably, epigeneticists are starting to observe multi-generational “genetic scars”. For example, offspring of parents with extreme wartime trauma — such as the WWII famine in the Netherlands, or the Khmer Rouge in Cambodia — show a high-incidence of diseases like diabetes.
Epigenetics is still an area of study that can quite appropriately be called embryonic. There are simply too many genetic unknowns in this area at this time to understand the true implications of surrogacy on the health, and consequently rights, of children. What we do know is that there is a rising surge of evidence to support the idea that genetic expression – the on/off switches of our DNA – play an important role in the health of our children.
A Brave New World
A brave new world will be one in which we protect our children in brave new ways. What are the rights of the child that need to be protected when children are borne by surrogates? First, the right to know the identity of their biological parents and their surrogate. Contact with surrogates should be encouraged, but not required. Second, the right to have a healthy surrogate who is medically-evaluated on a regular basis before and during the pregnancy. Third, the right to have their biological parents, legal parents, and surrogate listed on their birth certificate. Fourth, the right to citizenship in the country where they are born, or one of their legal parents is a citizen. Fifth, universal standards to insure that surrogates are treated equally in all countries. The U.N. Convention on the Rights of the Child in 1989 did put forth some basic protections for children, including that all actions dealing with children should be “in the best interests of the child.” The United States is the only country in the United Nations that did not ratify this Convention.
Mason was a Professor in the Graduate School of Social Welfare at UC Berkeley from 1989 to 2008. She received a B.A. cum laude from Vassar College, a Ph.D. in American History from the University of Rochester, and a J.D. from the University of San Francisco. She taught American history and practiced law for several years before joining the faculty at Berkeley in 1989, where she has taught children and family law and women’s issues in the law. She is considered a national expert on children’s rights, child custody issues and family law and policy, frequently addressing national and international media, conferences, and workshops.
Mary Ann Mason lives in San Francisco, California, with her husband, psychologist Paul Ekman.