In 1997 the move Gattaca the question was explored of what would happen when we could genetically engineer people to create “discrimination of the scientific sort.” As scary as this is, the movie never went about answering another very real question, which in 1997 probably seemed like a future even more distant than total knowledge of the human genome. A very real problem with the new advances in surrogacy is now beginning to enter into the legal sphere. And strangely enough, it has become a question over who the parents of a child are.
Surrogacy is a procedure in which sperm and egg fertilized in vitro are implanted into a female subject who has agreed to carry the pregnancy to term. She gives birth to the child and usually forfeits the child to the couple who has paid for the arrangement who then, for the most part, retain legal custody of the child.
For most surrogacy cases, the reason for pursuing this path usually is that the female of a heterosexual couple cannot carry her own child or the complication from her carrying term would most likely result in her expiration. This represents a little over 90% of all surrogacy cases. In these cases, for the most part, the legal proceedings have been clear: the male of the couple has provided the sperm and the female of the couple has provided the egg, and no one can challenge that the couple represents the legal characters of parents. For the most part, surrogate concerns have been sidelined as she has no legal connection to the child. Since the legal sphere has not as of yet gone to define what someone has to be involved in concerning the birth process to be considered a parent, surrogates usually find resistance and judicial scorn.
Another portion of the group paying for their children to be born of a surrogate are homosexual couples who provided the corresponding piece to the “child puzzle” from at least one partner. Here courts have been a little more uncertain and varied in decisions, but the rulings have still reflected the notion that sperm donor and egg donor, especially if the egg donor also carried the child to term, need to exist as legal guardians by current legal proceedings. If the egg was provided from another source, it becomes the choice of the women, individually, if they do or do not want to be involved in the child’s life.
The problem with the other 5% of cases not mentioned is that, quite frankly, it may turn babies into commodities. The Kehoes couple wanted to have a child but the female could not carry a child to term and it was very improbable that she could even conceive. The couple purchased their child from other people who had no known relation to them. They chose the route of surrogacy for the children they wanted much like someone picks between fine wines and strong spirits. The egg came from a medical school student at the University of Michigan and the sperm came from an athletic man who had maintained a 4.0 GPA throughout high school. They chose the surrogate mother based on a rating system that helped pick the “best” candidate for an easy delivery. Neither female nor male of the Kehoes couple had any part in the birth of the twins nor is there any genetic relation between the Kehoes and the children.
Legally, there truly is no answer for who are the parents of these children. The donors for the most part do not want to be involved and they usually view this procedure no more than people who donated blood for money. Legally, if those who provided genetic character to a child refuse to be legally responsible, the state needs to watch the children until foster parents adopt the children through the legal proceedings. The problem with the surrogate program is that while parents have to go through extensive screening for adoption, there is no standard for screening the parents who pay for surrogate procedures, and most couples are never screened aside from the question of whether or not their check clears. However, there is another problem: in these cases, the surrogate female is recognized, at least in some states, as an equal in legal rights to the children as the economically liable couple.
The surrogate female of the Kehoes case, Ms. Baker, challenged the couple in court for custody of the twins on the grounds that Ms. Kehoes was being treated for severe mental illness that would normally restrict her from adoption. Ms. Baker stated that had she known the mental state of Ms. Kehoes she would not have gone through with the surrogacy. The state of Michigan decided to rule with Ms. Baker and the children are now currently in her custody but the legal proceedings continue and the question of who will be considered legal guardians is still very much undecided. Similar cases have occurred in California, Oregon, New Jersey and Texas, all of which eventually ended in favor of the economically liable couple.
The question of whether or not any part needs to be played in the birth process as a requirement for parenthood still needs to be answered, as does the ethical implications behind “buying” your children. The miracles of fertilization now are to be met with the confines of law. What will occur from the encounter is still very much undecided.
For the original article please visit:
For the site that the Kehoes used to find their surrogate please visit:
For further references on foster care and the most up-to-date status of this and all cases please visit: