Surrogacy Reaches the Supreme Court

 
 

Surrogacy is out of control in the United States. All those who care about justice, the Constitution, and human rights must fervently hope that the Supreme Court will decide to hear this case.

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An egregious surrogacy case has been filed with America’s highest court. Today, the Supreme Court is expected to announce whether or not it will hear the case of M.C. v. C.M.

The importance of this case cannot be overstated. If the Court decides to hear it, this will signal that the country’s highest judicial body recognizes that surrogacy raises serious ethical and constitutional issues. Its decision could be a game changer, with both national and international implications.

Currently, there are no national laws, regulations, or policies regarding surrogacy. Surrogacy is dealt with by the states, and there is no uniformity or consistency among their approaches. Whether by statute or case law, surrogacy has been moving inexorably toward legalization; 92 percent of US states allow surrogacy with varying levels of regulation. Only four states ban commercial surrogacy (Michigan, Indiana, New York and New Jersey). To make things even more complicated, state laws as written often differ dramatically from how they are actually enforced.

The United States’ Role in the Global Surrogacy Market

Most Americans probably do not know that the US is driving the surrogacy industry globally, on both the supply and demand sides. On the supply side, the US is second worldwide only to India in the supply of surrogates, many of whom are military wives. Among those who study the issue, it is estimated that between 40 and 50 percent of surrogate pregnancies in the US are commissioned by foreign buyers. There is a good reason for this: of the top commercial surrogacy markets in the world, only the US and Ukraine have not passed prohibitory legislation on it.

On the demand side, many American buyers go to India, Nepal, Mexico, Vietnam, Kenya, or Cambodia because surrogacy is far cheaper there than it is in the US. The cost of surrogacy in the United States ranges from $90,000 to $150,000. In India, it averages between $12,000 and $25,000. In fact, the US government via the State Department, in conjunction with the fertility industry, has been trying to get an international treaty passed at The Hague that would facilitate the global surrogacy industry. No wonder—surrogacy is a thriving, profit-driven international business worth approximately $6 billion.

In such a bustling global marketplace, it becomes easy to dehumanize the women and babies involved. It’s all too tempting to ignore the very real effects surrogacy has on the lives of the women who sell their bodies and the children who are bought and sold. The case petitioners have asked the Supreme Court to hear reveals the inherently exploitative nature of surrogacy, which clearly violates both constitutional and human rights.

The Story Behind the Case

Hollywood screenwriters couldn’t have invented a fictional story to match this very real case of M.C. v. C.M. The surrogate in question is a California resident who gave birth to triplets via emergency Caesarian section two months prematurely in February 2016. The buyer is a fifty-year-old single deaf and mute postal worker from Georgia who lives with his elderly parents. His mother is bedridden and requires daily nursing care. His father, who owns the house, stated before the children were born that he would not allow babies into his home.

The buyer demanded that the child he was ordering be male. Using his sperm, thirteen embryos were created with purchased eggs from anonymous sellers, and three were successfully implanted in the surrogate. When all three proved healthy and viable, the buyer initially accepted that there would be three children instead of one. Later, he changed his mind and demanded that the surrogate abort one child and put another up for adoption, admitting that he was incapable of caring for all three. The surrogate refused to abort and offered to take the undesired children. The buyer refused her offer, and his attorney, Robert Walmsley, threatened to sue the surrogate—an obvious scare tactic designed to intimidate the surrogate mother into complying with his client’s wishes. As a lawyer, Walmsley would have known that no US court would ever force a woman to have an abortion. Although it is common for surrogacy contracts to contain clauses requiring the surrogate to have an abortion (called “selective reduction” in the Orwellian language of the surrogacy world) if the buyer(s) demands it, the clauses are not legally enforceable.

In addition to acting as the buyer’s attorney, Walmsley also owns the surrogacy brokerage, Surrogacy International, that handled the transaction. No home visit and study—which routinely occur in adoption cases—were conducted to determine whether the buyer was a suitable potential parent. Walmsley wrote to Lesa Slaughter, an attorney who was supposed to represent the surrogate, “Triplets for a married couple is hard enough. Triplets for a single parent would be excruciating. Triplets for a single parent who is deaf is – well beyond contemplation.” Slaughter agreed.

Slaughter’s representation of the surrogate was neither competent nor independent. Slaughter was selected by Walmsley to represent the surrogate, and her fees were paid by the buyer. She wrote to the surrogate and incorrectly advised her that the buyer had a right to demand an abortion and that the surrogate would be legally liable if she refused.

Triplet pregnancies are very high-risk, requiring constant medical care and monitoring. Nevertheless, the buyer wanted to reduce the surrogate’s weekly clinic visits because he complained that they cost him too much money.

Throughout the pregnancy, the surrogate bonded with the children, and they bonded with her. Numerous studies have documented not only the bond that develops during pregnancy between mother and child but that their DNA is exchanged through the permeable placenta. As medical sociologist Barbara Katz Rothman puts it: “If you are pregnant with a baby, you are the mother of the baby that you’re carrying. End of discussion. The nutrients, the blood supply, the sounds, the sweep of the body. That’s not somebody standing in for somebody else to that baby. That’s the only mother that baby has.” Although the DNA linking the child to the woman whose egg provides half of his or her genetic code is clearly significant, the emerging science of epigenetics shows that the woman carrying the child also shapes his or her identity in permanent, deeply significant ways. To assert that a pregnant woman is not at all the mother of the child or children she is creating with her own body—regardless of whether the egg was hers—is a flat denial of biological reality.

A Surrogacy Nightmare

This surrogacy nightmare only became worse as time went on. On February 9, 2016, the Superior Court of California entered a judgment based upon a petition from the buyer’s attorney claiming to be uncontested, containing sworn statements that the surrogate wanted her rights terminated, when they knew that to be false. When the surrogate gave birth on February 22, the personnel at Kaiser Hospital in Panorama City took it upon themselves to enforce the state’s court order. They would not allow her to breastfeed the babies, know their condition, or even see them. They stationed security guards at the door of her hospital room and policed everyone who came to see her, demanding identification as if she were a prison inmate at a criminal incarceration facility.

The newborns were in the Neonatal Intensive Care Unit (NICU) for two months. This is another fact about surrogate births that is silenced by the industry. Since it is common to implant multiple embryos in surrogates to increase the chance of a surviving, healthy baby (there are no caps to the number of embryos that can be implanted in the US), twins and triplets frequently result. This vastly increases the probability that they will be born prematurely. The costs of NICU treatment are astronomical. The average cost for infants hospitalized in NICUs is around $3,000 per day. While the average cost of a healthy baby born at full term is $2,830, the average cost for a premature baby is $41,610.

When she was released from the hospital, the surrogate refused the remaining $19,000 payment she was owed. She had filed an appeal before the babies were born, and at the end of March she filed a petition for a writ of supersedeas, which suspends the authority of a court to execute a judgment in a case that is being appealed. The writ was stayed, yet Kaiser Hospital continued refusing to allow her to see the babies. In April, the appeals court denied the writ and vacated the stay order. The California courts refused to consider the surrogate’s complaints and refused to give her a hearing.

In January 2016, the surrogate had filed a civil complaint in the Superior Court seeking a declaration that California’s Gestational Surrogacy Statute—Family Code 7962—was an unconstitutional violation of her rights and the rights of the children. She sought custody of the children based on their best interests. She also filed a complaint in federal district court.

California’s Surrogacy Law Violates the Fourteenth Amendment

The main legal issue is the denial of Due Process and Equal Protection rights under the Fourteenth Amendment.

California’s surrogacy law violates the substantive due process rights of the children, their fundamental liberty interest to maintain their relationship with their mother, and their due process liberty interest to be free from commodification and state-sanctioned and enforced purchase of family rights. Under California’s law, children are purchased and placed with adults regardless of whether those adults are capable of properly raising or caring for children, whether such placement is in the children’s best interest, or whether the surrogate mothers desire to and are better able to care for the children.

The law also violates children’s equal protection rights. California refuses to place children created through surrogacy based on what is in their best interests, as it does for all other children in all other disputed custody situations. Judicial rulings completely disregard whether or not child buyers may be harmful to the child; all that matters is the contract.

In other words, property (in this instance, children) takes precedence over all—the child’s health and welfare, human rights, identity, biological and genetic relationships, and on and on. According to California’s surrogacy law, the best interests of the child cannot be considered, because he or she is a purchased commodity subject to property and contract law.

The case also presents serious federal constitutional issues concerning the surrogate mother’s fundamental due process rights in maintaining her relationship with the children she created, and in not being exploited.

A Stunning Denial of Due Process

What ensued in this case was a stunning denial of any semblance of due process. Judge Amy Pellman of the Superior Court of Los Angeles County denied the surrogate’s application for a continuance. She summarily ruled that the buyer was entitled to a judgment terminating the relationship between the surrogate mother and the children. She proceeded as if the petition was uncontested and barred the surrogate from producing any evidence. When the surrogate’s attorney brought up the buyer’s inability to take care of the children, Judge Pellman stated, “There’s no need for home study. There’s no need for representation of the children.” When counsel asked whether the well-being of the children was going to be considered by the court, Judge Pellman replied: “What is going to happen to these children once they are handed over to C.M. [the buyer], that’s none of my business.” The court observed that a best interest determination is required in other actions but surrogacy is an “exception.”

The summary disposition of the entire case, without discovery, evidence, the opportunity to present the surrogate’s case, and without the buyer being required to answer the allegations of the Answer and Counterclaim is an outrageous insult to any concept of “justice” and respect for the constitutional rights of US citizens.

As this case horrifyingly demonstrates, surrogacy is out of control in the United States. All those who care about justice, the Constitution, and human rights must fervently hope that the Supreme Court will decide to hear this case.

Surrogacy is creating a generation of children severed from biological and genetic identity and a breeder class of marginalized women. Both are being transformed into commodities for sale on the global marketplace. This can only be accepted and condoned by a society untethered from any sense of ethics, human rights, dignity, or moral values. When the primal bond—as ancient as humankind itself—between mother and child is destroyed, what will be left?

Kathleen Sloan is a former member of the board of directors of the National Organization for Women (NOW), Executive Director of Connecticut NOW, a consultant on third-party reproduction issues, and co-author of the book Race and the Genetic Revolution: Science, Myth and Culture. She has a master’s degree in International Relations and has traveled the world advocating women’s rights, including at the UN Human Rights Council in Geneva and the UN Commission on the Status of Women in New York. She co-authored a brief for fifteen feminist academics and advocates as amici curiae in support of the petitioner (the surrogate) in the case discussed above.

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