EVEN WITH THE ADVENT
of gestational carriers, the practice of commercial surrogacy (as opposed to a woman who carries a baby for her sister or friend) remains one of the most socially controversial solutions to infertility. Washington lawyer and activist Andrew Kimbrell has opposed commercial surrogacy for more than a decade. Kimbrell, director of the non-governmental International Center for Technology Assessment in Washington, DC, sees no ethical distinction between a surrogate who bears a child with her own egg and a gestational carrier.
"It is the attempt to commodify the act of child-bearing and to commodify children," Kimbrell says. "It is baby selling, pure and simple, which we have forbidden in all 50 states but under the guise of a surrogacy contract tried to legalize."
Surrogacy opponent Andrew Kimbrell, director of the International Center for Technology Assessment in Washington, DC, says commercial surrogacy is immoral.
Medical ethicists are divided on the propriety of commercial surrogacy. Arthur Caplan of the University of Pennsylvania has criticized the nearly total lack of national and international regulations. He, too, likens commercial surrogacy to baby selling. But John Robertson, who teaches law and medical ethics at the University of Texas, says the comparison is clearly wrong.
"Baby selling is you have a born child that is sold to another person," Robertson argues. "Here we're talking about agreements made before conception has even occurred, where there is no existing child. Secondly, the genes, in the case of gestational surrogacy, are being provided by the couple that is hiring the surrogate, thus, in a sense, it is their genetic child."
Legal experts say that in most states, surrogacy contracts are either unrecognized by the courts or can be difficult to enforce. In a few states, such as Michigan and New York, paid surrogacy is illegal. In a landmark 1993 California case, a gestational carrier wanted to keep the baby, but the courts ruled against her, saying the genetic relationship between the baby and the contracting parents - plus that couple's original intent to raise the child - made them the child's natural parents.
Robertson says other states will look to the California ruling when deciding disputes over gestational surrogacy. But until the law is settled in those states, both parties - surrogates and intended parents - take a risk when signing a deal, he says.
Surrogacy critic Andrew Kimbell deplores the California finding. "We have here for the first time in the history of western law the idea that childbearing does not equal motherhood. That motherhood can be established by contract or commercial intent. This is both a legal and ethical free-fall," Kimbrell says.
There are no reliable statistics on how many surrogacy arrangements end up in dispute. Legal battles get wide publicity but appear relatively uncommon, either in gestational or traditional surrogacy. Perhaps the most extraordinary case is that of a Santa Ana, California child named Jaycee Buzzanca. The three-year-old was born to a gestational surrogate using sperm and eggs from anonymous donors (the infertile couple was unable to create their own embryo). But one month before her birth, in March, 1995, the intended father, John Buzzanca filed for divorce. Last August, a county judge ruled he was not liable for child support and that his ex-wife, Luanne Buzzanca, was not the child's legal mother. No one was. Luanne Buzzanca would have to adopt the child.
Of the five people who had a relationship to Jaycee - the surrogate, the anonymous gamete donors, the intended parents - the court found none were her legal parents. Luanne Buzzanca had custody of Jaycee. On March 11, 1998 a California appeals court ruled that Luanne Buzzanca is, indeed, the child's legal mother and that John Buzzanca is her father. The court ordered John Buzzanca to pay up.
Some surrogacy programs balk at creating babies where there is no direct genetic link. Psychologist Hillary Hanafin says the Center for Surrogate Parenting and Egg Donation would refuse an arrangement such as the Buzzancas'.
"It looks like cherry picking, like you're creating a child through a catalog," Hanafin says. "It's a concern to us when no one has a legacy or connection to the child prior to fertilization."
Hanafin says that probably half of the disputes in surrogacy involve intended parents who refuse to take the baby. "However, most of the couples didn't walk away from the child because they were too busy or got divorced. It usually had to do with some question about prenatal care, or the true genetics of the child, or whether or not the surrogate had been intentionally negligent during the pregnancy," she says.
Hillary Hanafin, chief psychologist at The Center for Surrogate Parenting and Egg Donating in Beverly Hills, screens out women who want to be surrogates mainly for money.
Hanafin adds that of more than 560 births at her center, only two provoked a dispute. In one case, a surrogate wanted to keep the child but later agreed to give it up. In the other case, a child born with severe medical problems was adopted by a third couple after the intended parents said they could not handle the burden, Hanafin says.
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