Surrogacy Agreement, Medical Technology & the Law: On the Rights of Surrogate Mothers

[WSJ Law Blog]

If technology is a messy child ambling through a room, the law is an anxious parent walking two paces behind, trying to clean up the debris.

We thought up that metaphor just now (it’s not perfect, but ain’t bad) upon reading Nathan Koppel’s story today in the WSJ on surrogacy and the law.

Medical advances have in recent years made it possible for a woman to carry an embryo from donated eggs and sperm as an (often paid) service to a gay couples or couples unable to bear children. But does a surrogate mother have rights to the children after giving birth?

The situation arose with a gay couple in New Jersey, Donald Robinson Hollingsworth (pictured, right) and Sean Hollingsworth (pictured, left), a few years ago.

The Hollingsworths contracted with a woman to carry an embryo from donated eggs and sperm from Sean Hollingsworth. The surrogate mother, Donald Hollingsworth’s sister Angelia Robinson, gave birth to twins in 2006.

Although Robinson had signed a pre-birth agreement indicating she would relinquish her parental rights, she later sued after deciding she wanted to help raise the twins. In December, New Jersey state Judge Francis Schultz ruled that Robinson is a parent.

Critics say surrogacy often exploits impoverished and relatively unsophisticated women, who are enticed by hefty fees into relinquishing their parental rights. Proponents counter that surrogacy agreements usually are struck by consenting, informed adults, who are in a better position than courts or legislators to determine the best interests of a child.

Surrogacy remains a relatively uncommon pathway to parenthood, in part because it still rests on a somewhat shaky legal ground in parts of the country. Eight states have passed laws prohibiting some or all surrogacy contracts, while courts in other states have refused to enforce such contracts.

A few states, including New Hampshire, strike a legal middle ground: They allow surrogacy, but grant surrogates a period of time after birth—generally, a few days— to change their minds about whether to relinquish their parental rights. Other safeguards adopted by states include requirements that surrogate mothers undergo counseling and have had at least one prior delivery.

States, at a minimum, should establish clear guidelines, says Jessica Arons, a reproductive-rights expert at the Center for American Progress. “You don’t want a determination of who will raise a child and where the child will be living to be left in legal limbo.”

Photo: Chris Hietikko