Surrogacy—one woman bearing children for another, or a couple—is a growing part of our brave new birth world. California Gov. Jerry Brown signed a bill into law last September allowing pre-birth establishment of parental rights and validating surrogacy contracts. The unanimously passed bill also redefined “intended parent” to include married or unmarried persons, legitimizing homosexual intended parents.
Other states—including Florida, Nebraska, New Hampshire, and Illinois—have greater limits on surrogacy. New York outlaws surrogacy contracts, and the District of Columbia prohibits surrogacy entirely. Most states’ laws regarding surrogacy are unclear or nonexistent.
Surrogacy has changed over the years. In 1976, attorney Noel Keane arranged the first contract for “traditional surrogacy”: the insemination of a woman with sperm from a male, generally the husband of someone else. Recently, many surrogacy agencies have turned to “gestational surrogacy”—the implantation of an egg in the surrogate. A California judge has ruled that a gestational surrogate, unrelated to the child, has no parental rights.
The number of births to gestational surrogates nearly doubled from 738 in 2004 to almost 1,400 in 2008, according to statistics from the Society for Assisted Reproductive Technologies. It has become more mainstream: Mitt Romney’s son and daughter-in-law made national news for hiring a surrogate to carry their twins.
NBC’s show The New Normal premiered Sept. 10 with a gay couple that hires a single mom surrogate. “These days, families come in all forms—single dads, double moms, sperm donors, egg donors, one-night-stand donors,” the show’s website said. “It’s 2012 and anything goes.”
New Jersey has long been a frontier state for surrogacy. Almost 25 years ago, in the “Baby M” case (1988), the New Jersey Supreme Court ruled that the traditional surrogate—the biological mother of the child—has parental rights. In a contract arranged by Keane, Mary Beth Whitehead promised to carry a child for William Stern (the biological father) and his wife for $10,000. Whitehead later breached the contract by keeping the child. In a 7-0 decision, the court awarded Whitehead parental rights.
In 2009, a New Jersey Superior Court ruled that the Baby M case applied also to a gestational surrogate with no genetic connection to the baby. In that case, the plaintiff Angelia Gail Robinson had moved from Texas to New Jersey to work for her brother Donald Robinson Hollingsworth (DRH) and his homosexual partner Sean Hollingsworth. DRH gave Robinson a job in his accounting firm, a place to live, and invested with her in a bed-and-breakfast. In exchange, Robinson promised to act as a surrogate, carrying an egg fertilized with his partner Sean Hollingsworth’s sperm. Robinson would then be an “aunt” to any children born.
Because Robinson was 44 years old, the doctor decided not to use her eggs. Instead the doctor performed in-vitro fertilization (IVF), using eggs from an anonymous donor and Hollingsworth’s sperm. On Feb. 28, 2006, Robinson, her brother, and his partner signed a surrogacy contract. Doctors transferred the embryos to Robinson’s body the next day.
Four months into her pregnancy with twins, Robinson and her brother had a “falling out.” Robinson fell in and out of depression before and during her pregnancy. The pregnancy was a difficult one. Her blood pressure rose significantly, and she developed severe pre-eclampsia a month before the babies’ due date.
Robinson gave birth to her daughters via C-section after she suffered a seizure and coma: She and the twins nearly died. Shortly after the birth, she signed adoption papers. Relations with her brother deteriorated until she lost the job at her brother’s accounting firm.
Less than a year after her daughters’ conception, Robinson was penniless, jobless, and childless. She returned to her childhood Baptist faith in 2008, denouncing both surrogacy and homosexuality.
Court orders in 2007 granted her visitation rights, and in 2009 Robinson sued for parental rights. In the 2009 ruling, the court voided the surrogacy contract and the consent to adoption, ruling that Robinson held parental rights.
A later 2011 Superior Court ruling by the same judge granted Hollingsworth, the genetic father, sole legal custody of the girls and gave Robinson visitation rights. The judge opined that awarding sole custody to Hollingsworth served the “best interests of the children,” expressing concern that Robinson’s negative views of homosexuality and surrogacy would be detrimental to them. —C.C.
Last year the New Jersey legislature debated a surrogacy bill that allowed infertile parents to pay a surrogate’s living and medical expenses in exchange for her relinquishing all parental rights after birth. Feminists, pro-life advocates, lawyers, and surrogates formed an opposing coalition spearheaded by National Organization for Women board member Kathleen Sloan, Center for Bioethics and Culture president Jennifer Lahl, and New Jersey Right to Life (NJRTL) director Marie Tasy, who said, “We were concerned about creating a breeding class of women.”
The bill passed the Senate by one vote in May. In June, though, three assemblywomen—Alison McHose, Caroline Casagrande, and BettyLou DeCroce—opposed it on the General Assembly floor. “Baby selling is illegal,” Casagrande said. “We’re not talking about selling infants today. But I would venture that we’re talking about a very fine line.”
The bill passed—and Gov. Chris Christie vetoed it. NJRTL’s Tasy says the legislation, crafted in part by surrogacy brokers, will probably reappear this year, so she and her coalition partners are working to outlaw surrogacy. Casagrande is also crafting legislation banning surrogacy for profit. Tasy asks the key question of any proposed law: “Is this a law that is going to promote a healthy society, healthy family, healthy children?” —C.C.