Defining Parentage in the Age of Surrogacy, Part 2: Who is a “mother”?

In the early 1980s, the Infertility Center of New York placed some ads in area newspapers seeking women who would be willing to carry a child for an infertile couple.  One young woman, Mary Beth Whitehead of Bricktown, New Jersey, saw the ad in the Asbury Park Press and answered it.  The Infertility Center matched Whitehead with William and Elizabeth Stern of Tenafly, New Jersey.  On February 6, 1985 Whitehead and the Sterns executed a surrogacy contract wherein Whitehead, in exchange for $10,000,  agreed to be artificially inseminated with William Stern’s sperm, to carry the resulting child to term, and then to give up all legal rights to the child at birth.  At the time, Whitehead was married to Richard Whitehead. 

Under this surrogacy arrangement, Whitehead became the genetic surrogate mother to Stern’s child through artificial insemination with Stern’s sperm.  Had Whitehead not contributed an ovum, as in the case of in vitro fertilization using an anonymous egg donor, she would have been a gestational surrogate mother.  In this case, both genetic parents were known.  Elizabeth Stern did not contribute an ovum because she suffered from multiple sclerosis, the reason for which the Sterns had sought a surrogate in the first place. 

At common law, the mother is defined as she who bears the child.   Because maternity rights are presumed, laws protecting maternity rights arising out of surrogacy are often absent.  Parentage of a child is defined by the birth of the child to a mother and the mother’s marriage to the child’s father.  Where the mother is not married to the father, she retains full custody rights to the child.  A surrogacy contract involving a genetic mother seeks to alter the common law understanding of “mother” by termination of parental rights between the birth mother and her child without the intervention of a court.  In New York,  grounds for the termination of parental rights are governed by statute and found in  Soc. Serv. Law, §§ 384-b, 358-a(3)(b).   The parent must be adjudicated as “unfit” before parental rights can be terminated. 

On March 27, 1986 Whitehead gave birth to a daughter whom she named Sara Elizabeth Whitehead.  She and her husband Richard gave every indication that the child was theirs, and the child’s birth certificate indicated that Richard Whitehead was the father.  At common law, the mother’s husband is the presumptive father.  As per the terms of her surrogacy contract, she gave up custody of the child to the Sterns at their home on March 30th.  But less than a day later, Whitehead had second thoughts.  She became emotionally distraught and asked the Sterns to return the child to her for a week, whereupon she would return the child.   The Sterns complied, concerned over Whitehead’s extreme distress.  Instead of keeping her word, Whitehead and her husband fled with the baby to her parents’ home in Florida.  The details of the Sterns’ legal attempts to reclaim custody of the baby are found in In re Baby M, 537 A.2d 1227 (1998)

The New Jersey Supreme Court found that surrogacy contracts offend public policy and are contrary to New Jersey statutes.  The court found the surrogacy contract invalid and unenforceable for two reasons.  First, termination of parental rights may not be done by contract.  The legal standard for determining whether parental rights can be terminated is the best interest of the child and not a contractual clause.  Second, an irrevocable agreement on the part of a birth mother to give up a child for adoption prior to the child’s birth amounts to coercion to contract, making the agreement unenforceable.  The court pointed to additional conflicts with adoption laws:  prohibitions on the exchange of money for the right to adopt, with the exception of fees paid to non-profit approved adoption agencies; and laws that make the birth mother’s consent to put her child up for adoption a revocable act. 

Furthermore,  New Jersey’s Parentage Act codifies the long-standing common law understanding of parentage.  The New Jersey Parentage Act provides that, where a married woman is artificially inseminated by a sperm donor and with her husband’s consent, the law creates a parent-child relationship between the husband and the child, and not between the sperm donor and the child (N.J.S.A 9:17-44).   The New Jersey Supreme Court found that Whitehead’s parental rights had not been terminated as a result of the surrogacy contract.  The court granted custody to William Stern but visitation rights to Whitehead. 

As a result of the Baby M case, New York passed a law prohibiting surrogacy agreements as contrary to public policy (D.L.R. § 122).  Surrogacy contracts fracture the unified concept of motherhood by separating out the functions of the genetic mother,  the gestational mother, and the custodial mother.   There are fines and criminal penalties in New York for commercial surrogacy.  Non-commercial surrogacy contracts are de facto unenforceable.  But this law did little to settle the issue of who is a “mother.”  The issue is particularly thorny in cases where a resulting birth is produced by assisted reproductive technology (ART).   

Unlike surrogacy, artificial insemination is not against public policy in New York.  Artificial insemination maintains the unified concept of motherhood.  Women who donate eggs anonymously are generally required by fertility doctors to sign a surrender, thereby waiving all parental rights and responsibilities.  New York goes further and denies any egg donor (the genetic mother) standing to initiate an action for custody.  Anonymous sperm donors generally sign contracts with a sperm bank and not with a mother, and so the donor’s anonymity and waiver of parental rights are generally upheld.  However, in New York a contract waiving parental rights and responsibilities between a known sperm donor and a mother is generally unenforceable.  The court will use the “best interest of the child” standard to determine the parental rights and obligations of the sperm donor. 

Because New York legitimacy laws only apply to married couples, courts have approved instances where an anonymous sperm donor can successfully waive his parental rights if the the woman is unmarried.  The mother then gains sole custody of her child and has no standing to claim child support.   

Where a mother is married, there is the legal presumption in New York that a child conceived with the husband’s consent  through artificial insemination is the legitimate, natural child of the couple.  The sperm donor has no rights to the child.  The mother who has been artificially inseminated is considered to be both the genetic and the gestational mother.

There have been exceptions to the rule that in New York a mother is both the genetic mother and the gestational mother.  In Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000),  a New York court awarded custody of one Black fraternal twin whose white mother was mistakenly implanted with an embryo created with the sperm and ovum of another couple, the Rogers.  In a truly Solomon-like fashion, the court decided that Donna Fasano was the gestational mother of both twins, but the genetic mother of only one twin.  The court acknowledged the legal challenge brought about by ARTs to the concept of “mother”:  “It was only with the recent advent of in vitro fertilization technology that it became possible to divide between two women the functions that traditionally defined a mother, at least prenatally. With this technology, a troublesome legal dilemma has arisen: When one woman’s fertilized eggs are implanted in another, which woman is the child’s “natural” mother? (Perry-Rogers v. Fasano, at 24)”

The court presciently predicted that further challenges to the legal concept of “mother” as being both genetic and gestational in New York would be forthcoming.  ” (W)e [do not] necessarily accept the broad premise that in any situation where a parent, possessed of that status by virtue of having borne and given birth to the child, acknowledges another couple’s entitlement to the status of parent by virtue of their having provided the genetic materials that created the child, the birth parent automatically gives up all parental rights (Id., at 25).

We will look at this precise question in the next part of this series:  who is the “mother” when a woman donates her ova (genetic mother) for in vitro fertilization by an anonymous sperm donor with the intent of having her spouse, another woman, carry the child (gestational mother)? 

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