Posted for Anu! This blog is long dead...
Surrogacy became a sensation with the “Baby M” case . William and Elizabeth Stern desired a child, but for Elizabeth it posed a health risk. So a deal was struck with a surrogate mother, and Mary Beth Whitehead was impregnated traditionally; that is, she was the biological mother. Here's the catch: Mary refused to give her daughter up when she was born. The Sterns then brought the case to court and sued Mary for violation of the contract. The court granted custody of the child to William as her biological father, based on a “best interest of the child analysis”.
The case sparked international debate: should such contracts be enforced? Surrogacy can be morally good, especially when used as a last resort. It is then that objections to the process can be overruled, by virtue of the good it does to childless couples. Still, not everyone agrees.
As more people turned to surrogacy, surrogates were observed to decide to keep the children they birth, even gestational surrogates who have no blood relation to the child. The reason why is simple: this baby sale fails to take into account the strength of the bonds formed between a woman and her baby in her womb. Many people who oppose surrogacy capitalise on this phenomenon to express that defying Nature's will goes against natural order and therefore children must only be conceived and nurtured by their natural parents.
More pragmatic opponents argue that the moral contract can still be rendered invalid, because the surrogate fails to realise the strength of those maternal bonds. By proving it is impossible to obtain full or pure consent from the surrogate, it becomes a case of misinformation. The contract can thus be declared void under court law.
Yet a notable fact is that the judgement passed was to be “in the best interests” of the child. The government similarly has a duty to protect the mothers' interests as much as possible. This boils the issue down to two questions: who is the better mother and which mother's interest should be better protected?
Back then, it was an issue of the surrogate mother versus the biological father, but the adoptive mother should have also been considered an important stakeholder. Practically speaking, Elizabeth was better financially able to provide for the child. Seeing that Mary had two other children, Baby M would also be likely to receive more attention and care with Elizabeth. Furthermore, having gone to lengths to have her, Elizabeth would be more likely to cherish the child. Just because Elizabeth did not conceive the baby did not signify the maternal bonds were absent.
The second question concerns the issue of which mother should be granted custody, especially for a gestational surrogate who is not the biological mother. Prior to such cases, few people thought that gestation validates parenthood. But it became clear that parenthood is also defined by the sacrifices parents make, and pregnancy is a major part of it. Still, we have to consider that this was replaced with a monetary one. Even in child adoption cases, parenthood is about the choice to sacrifice daily comforts. Moreover, when the couple desperately desires a child, the inherent love they have should make them deserving of parenthood.
A important thing to note is that surrogacy contracts should not be like property exchange. Surrogacy involves the sale of a child, or paternal rights. It is said that both are inalienable; that is, they cannot and should not be voluntarily offered up in any exchange, much less a commercial one. It is the market for a child's life that dehumanises that very life and turns it into nothing more than a commodity. Surrogates, though technically owning their parental rights and thus the life of the child, cannot give or sell them away, because they are so sanctitious.Yet it remains my belief that exceptions can be made, because surrogacy is the only way out for childless couples, and it becomes humane to buy a baby to complete your life.
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