Week 2 Post 1-Surrogacy

 Introduction to Surrogacy

-Surrogacy is when another woman hosts a pregnancy out to term for a couple, and there are two types, traditional and gestational

    -Traditional surrogacy is when a uterus is inseminated with sperm, either from a bank or the couple, and the surrogate's egg is used, and the child has their DNA

         -Most often used for a person who is unable to produce viable eggs for reproduction, or gay couple's or single men 

     -Gestational surrogacy is when an embryo with the genetic materials from the couple is transferred to the surrogate, who does not share DNA with the child

         -Gestational surrogacy is most often used for a person who has functioning eggs, but a nonfunctioning uterus, or those who have health problems not conducive to pregnancy

Surrogacy Contracts

-In the U.S. there is a questioning if there should be enforceable contracts as a part of commercial surrogacy, with people arguing that gestational surrogacy, where the surrogate is not genetically related to child should be enforced, but traditional, where the surrogate is genetically related to child has some gray area

-In the "Baby M" case, which took place in the 80s, a man, named Stern and a woman named Whitehead entered into a contract which stated that Stern's wife was infertile, and that Whitehead would serve as a traditional surrogate for the couple

    -The contract also stated that Whitehead would turn the baby over to Stern and would make sure that legally Stern's wife was the mother of the baby, and Whitehead and her husband would rebuke their paternal rights (even though Mr. Whitehead would not have any), and Mrs. Stern was not a party in the contract, to get around the law that prohibited paying for adoption

     -The monetary transaction was set apart legally form the adoption to avoid the law prohibiting the selling of children

    -After Whitehead had the baby she started to have second thoughts but turned over the baby to the Sterns, but after a few days went back to them and told them she "could not live without her baby" and wanted her if only for a week, which the Sterns complied to out of fear for her life, with full confidence she would give the baby back 

    -However it took four months to get the child back after many attempts by the Sterns, including a lawsuit, and the baby had to be forcibly removed after the Whiteheads had hide from the Sterns and the authorities 

    -The lawsuit goes to the New Jersey Supreme Court, which held that the contract was not enforceable in New Jersey, because the contract was incompatible with some statutes in the state 

          -The first statute was about prohibiting money in adoption, which even though Mrs. Stern was excluded from the contract, still occurred in principle. The statute is in place to make sure the fitness of the parent is the most important feature in adopting. 

          -The second statute is that when parents are adopting a baby, there needs to be a test of fitness for the parents, which did not occur 

          -The third statute cited said that for private adoptions, unlike public, governmental ones, it is illegal to permanently revoke and terminate a parental right, meaning the right could be given back, to provide a "cooling-off period" and the courts saw this case as private adoption

-Another reason the courts would not enforce the contract because it is "contrary to public policy" because the contract values the father's parental rights above the mothers, which according to world public policy they are equal

    -The court also said the contract violated public policy because there was a strong lack of counseling for the surrogate, and because it is impossible for Whitehead to make an informed decision until she has given birth, so she cannot make informed consent ahead of time

     -The court also argued that the payment for her surrogacy was undue inducement

-Later on the court would give a further explanation, saying that it was exploitation and that they are worried that surrogacy will be used by the rich at the expense of the poor, along with saying that the "good" of parenting should not be a commodity

-One way of looking at arguments thematically is the "argument from analogy", which says that if one case is like another it should be treated in the same way, but this way of thinking is criticized because no two situations are exactly alike. In ethical reasoning it is important to make sure that the features of a case are relevant to each other morally, and that there are not morally important differences so that the analogy cannot be made

    -The analogy that was mad for the Baby M case was to adoption, and the argument was that to extent the case does not meet the regulations of that industry it is bad 

    -Analogy is the basis for a lot of law, and to assess the strength of an argument one must look at the strength of the analogy, and whether the alike or different qualities matter for the argument or case being made, and in the case of Baby M there are differences between it and adoption, such as the genetic parents never going to raise the child as a family unit, which could be argued to make a difference in the morals between the two subjects

-Another moral line of legal thinking is free standing arguments, which point out issues in the case that provide problems, and there is in principle arguments, which cannot be solved, and are fundamentally an issue with the nature of the case, and fixable arguments, which theory could be fixed and not change the fundamental nature of the case

     -The argument that Whitehead did not have appropriate counseling, and that surrogacy is not in the best interest of the child is fixable 

      -The argument that in a civilized society selling surrogacy cannot be ethical is in principle

     -The argument that a surrogate cannot give informed consent until the baby is born is in principle if referring to a specific birth, but fixable for birth in general, as the surrogate could just be required to have a baby before 

-There are concerns that surrogacy being commodified could corrupt the nature of the good, cause an unjust disruption and could unfairly exploit the poor

-Surrogacy raises two types of argument: anti-commodification, and anti-contractualist, which says that a surrogate might have many changes between the contract and fulfilment of the contract 

The Johnson v. Calvert Case

-In this case the Calvert's wanted to have kids but were unable, and Johnson volunteered to help them, and they signed a contract saying it would gestational and that Johnson would relinquish all parental rights to the child to the Calverts, and they would pay her $10,000 in a series of installments, the last to be paid six weeks after the child's birth, and large life insurance policy of Johnson's life 

-After entering the contract the two parties fell out, and Johnson ended up telling the Calverts that she demanded all the payments now, or else she would refuse to give up the child, and they followed with a lawsuit against her saying that they were the legal parents of the child, and Johnson filed her own action to be declared the mother of the child

-In the case there are three types of parenthood: legal parenthood, who the law says is the parent, gestational parenthood, who carried the baby, and genetic parenthood, who gave the baby its genes and is related to them

-Surrogacy makes there be a need for there also to be a relinquishment of parenthood, or freedom form parenthood

-There are two types of rights, negative, which is freedom from interference and being allowed to be left allow, and positive is a right to have something done, and this case can be framed in both those ways

-The courts, instead of looking at philosophical arguments, framed it at looking at the best interests of the child and the intention of the parties

    -They cited a statute that tied maternity to the genetic mother and not the gestational mother, and so they awarded custody to the Calverts 

-While the arguments made are fairly cut and dry about the statute there is a background conflict about morals and ideas, like what is a mother, which is often the case with legal cases

-One conflict with the statute presented was that when the bill was created IVF had not been invented so solely having gestational motherhood had not be possible, and the statute was written in way that made the gestational and genetic mother ubiquitous about which one should be the legal mother 

-An objection was brought up, that questioned why there could not be two legal mothers, but the court ignored that because it makes a situation much more complicated-the situation is different than divorce and there is, in the court's mind a clear legal mother 

     -This response from the court is in the background saying what a family "should" be, and going with the social norms of the time, they saw it should be a two-parent nuclear family, and inviting another party into it would dilute a sense of parenthood, which is outdated and heteronormative 

-The court's main argument for the case was about who intended to be the legal parent, and they looked at the contract not as binding but as evidence to everyone's intents, and that the intent rules what is best for the child

     -The court is presenting an idea of what a "good family" is, and the conception is parents who planned to have the child and are ready for the child 

-One objection to the court is that the contract is contrary to the adoption statute that prohibits pre-birth waivers of parental rights 

     -The courts reply was that the parties agreed to do IVF and Johnson was not unduly induced, and was compensated purely for her labor, not the waiver of her parental rights

-Another objection was that it was slavery or involuntary servitude, and the court said there was not evidence of coercion or exploitation  

-Another objection was that it exploits low income women and dehumanizes children, which the court responded that it does not exploit women further than them being low income forces them to generally take crappy jobs, and says that the argument that women cannot intelligentially make a decision about surrogacy has patriarchal overtones, and is harmful

    -The court is flipping the case to have an explicate feminist lens

    -However, Elizabeth Anderson, in her essay " Is Women's Labor a Commodity?" argues that applying economic norms to women's gestational labor does violence to the way we think women should be valued, by converting the labor to an alienated labor, and forcing them to ignore the social practice that connects gestation to forming emotional attachments 

     -The California Supreme Court which provided over this case made the argument that it is an insult to women to say they are not intelligent enough and too emotional to understand their feelings to enter a surrogacy contract

    -This is a gendered argument, and goes into further questions over if the pregnancy itself is important or if the gender of the person effected matters

-The outcome of the case is that gestational surrogacy contracts are enforceable, which creates a surrogacy tourism in California 

-There was a dissenting opinion on the court, that said that contractual intent is not alone enough to prove best interest for the child and the parties should be subject to tests

-There are rules and standards in law, with rules being more cut and dry, and standards being on a case by case basis, and the way a legal case is looked at is important and could determine the outcome of the case

Surrogacy by Accident and the Perry Rogers v. Fanaso Case

-The Rogers went through IVF at a clinic in New York, and by mistake an embryo containing solely their genetic material was implanted in Fanaso along with an embryo that contained material solely from the Fanasos

-The Fasanos are white and the Rogers are black, and Mrs. Fasano gave birth to one white child, the genetic child of the Fasanos, and one black child, the genetic child of the Rogers

-The Fasanos did nothing until the Rogers found out and sued them and the doctors, to determine the rights and obligations of the Rogers's genetic child, and for malpractice 

-After genetic testing which determined that Akeil, the baby of the Rogers, was in fact theirs genetically, the Fasanos allegedly agreed to relinquish custody, as long as they had some visitation rights, and damages should breach occur 

    -Mrs. Rogers claimed that because she had only briefly been able to see Akeil she felt that she had to sign the contract to make sure she got custody

-Ultimately, Akeil was turned over the Rogers and they got custody 

-The first contention was if the Fasano's were even eligible for visitation, which the Rogers argued they were not, because they are a genetic stranger, and the accidental gestational parent

    -The court disagrees with that point and cites Johnson v. Calvert as a precedent that gestational mothers may have a claim to some rights over a child, which was interesting because Johnson case did not hold that really, and in fact said the opposite

    -The court also says that if the Fasanos would have tried to claim custody they would have lost because the Rogers had arranged their lives and had done preparation anticipating the birth of their child, so the Rogers were the intended parents 

        -However, it is a slightly different case, because the contract was not made before the IVF, which would have formed the intent of the parties, and because the Fasanos also intended to have a child, so there is possibly a weak analogy for surrogacy contract cases to this one

-The court looks to, instead of the Rogers's claims, a statute in New York that said only a certain number of people can have visitation rights, and they have to be genetically related to the child 

    -The court says that they are endorsing a very narrow rule, not a board one, and makes an analogy of a baby that is mixed up in a hospital 

-There is a strong view that genetic relation is what matters and not gestational relation 

-One argument against the court's descion is about the gestational bond, but the court says that is not enough and any bond formed after the baby was born was due to the Fasanos not properly giving over the baby, so they cannot take advantage of a situation they created to make their case stronger 

-The issue of race was excluded from the courts decision, which could be because it did not matter to the court or because it did but they did not want that opinion to change the opinion of the case 

-There is a lot of implications about the way the court thinks how parents should bond with children and when