UPDATES & ANALYSIS
Question to Iowa Supreme Court: Who are the legal parents of a child born of a surrogate mother?
by Rox Laird | December 19, 2017
A case before the Iowa Supreme Court this term poses profound questions of law, biology, genetics and human rights:
Who are the legal parents of a child produced from donated genetic material and born of a surrogate mother?
The parties characterize the case as a choice between enforcing a straightforward legal contract and legalizing the sale of children as commodities.
P.M. and C.M., as they are identified in the court documents, are a married couple who entered into a gestational surrogacy contract with a woman, T.B., using anonymously donated ova fertilized by P.M.’s sperm. T.B. gave birth to twins 13 weeks prematurely, and one twin died eight days later. T.B did not inform the Ms of the births and, after bonding with the surviving infant, she changed her mind about giving up the child, identified as Baby H.
The Ms sued to enforce the contract and to terminate T.B.’s parental rights, arguing that P.M. is the biological father as confirmed by genetic test results that ruled out T.B. as the mother. The Linn County District Court ruled in their favor on summary judgment.
In her appeal, T.B. argues that she is legally the mother of the child – as a matter of biological and scientific fact – that the contract with the Ms is unenforceable absent an Iowa statute recognizing such gestational surrogacy contracts. She further argues that enforcing the contract would violate her constitutional rights of due process and equal protection and those of the child.
The Court heard oral arguments in the case on Dec. 13, and the exchanges between the justices and the appellate lawyers revealed the complex legal and scientific challenges involved in defining motherhood in the age of in vitro fertilization.
In fact, four parties named in this appeal have a legal, genetic, biological or emotional interest in the child:
- The man, who donated the sperm, who with his wife had a contract to take possession of the child at birth.
- The woman who carried the baby to term, nursed and cared for her for three-and-a-half months, and her husband.
A fifth person arguably may have an interest, as well: the anonymous woman who donated the ova.
The justices came prepared with questions:
If the surrogate mother wins, does the genetic father have a right to visitation? Does he pay child support? Do ordinary contract principles apply to an agreement regarding the birth and parentage of a child? What right did the Ms have to enter into this contract? What right did the surrogate mother have to break it? What about artificial insemination and birth outside the womb, should the science permit?
What legal principles should guide the Court in the absence of a clear judicial precedent or statutory law regarding gestational surrogacy? Should the Court establish those principles, or leave that to the Legislature?
Early the oral argument, Justice Thomas Waterman posed a question to Harold Cassidy, the surrogate mother’s lawyer: Is this a case of buying and selling individuals?
That issue emerged throughout the argument, as Cassidy repeated the assertion that the surrogacy contract is the equivalent of selling a child: “This is a case of manufacturing a child in exchange for money,” he said at one point. “If that is not the exchange of a child for money, I don’t know what is.”
Justice David Wiggins posed several questions about the legal basis for the surrogacy contract: Where, he asked, does the law say that just because you carried the child that makes you the mother?
Cassidy: The Iowa Legislature has not addressed that question, but the science says the fact that she carries the child, she is the mother. That has always been considered the core of civilized society.
Wiggins: This is the first case that has come to the Court where the mother is not genetically related to the child. “Are you telling me genetic material doesn’t mean anything?”
Cassidy: We have scientific evidence that she is the mother.
Philip DeKoster, the attorney representing P.M. and C.M., rejected the idea that the surrogacy contract amounted to selling a child. There is no genetic connection between surrogate mother and the child, he said. There is no criminality; this is not selling children. The genetic materials were the Ms’ to sell and then the child would come back to them.
Justice Edward Mansfield, noting the elaborate law of adoption in Iowa, said he found the lack of due process in surrogacy contract curious: “Here, you had a contract.” He said. “That’s it, no due process. Isn’t that one-sided? Isn’t that kind of a strange way for the law to work?”
Justice Brent Appel dug into the idea of children as commodities: “My problem with this case is that we all agree that you can’t sell children,” he said. “On the other hand, we agree you can sell corn as a commodity. This is not the sale of a child. It is not the sale of corn. It is somewhere in between. What I’m struggling with is that the law hasn’t anticipated, and the Iowa Code hasn’t anticipated, this sort of case.”
Cassidy urged the court not to fill in the blanks left by the Legislature, however. The legal rules for surrogacy should be based careful consideration by a legislative body after years of study. “This Court should not write it for them,” he said.”
Cassidy made a similar argument in his brief submitted to the Court:
“The terms of the surrogacy contract has as one of its principle aims the destruction and elimination of the mother-child relationship,” he wrote. “It is intended to deprive the child of the mother who carried the child in utero, with whom the child bonded, and learned to know, and love. The cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty. This relationship, its unselfish nature and its role in the survival of the race, is the touchstone and core of all civilized society. Its denigration is the denigration of the human race. The decision of the State of Iowa to set on any irreversible course that deprives children of their mother is not one for the court.”
In response, DeKoster in his appellate brief argued the District Court got it right:
“The District Court correctly recognized that Iowa Law — both statutory and case law — treats the genetic (or biological) connection as the defining factor for parentage…. Parentage in Iowa turns solely on genetics. The Iowa legislature defines a ‘parent’ as ‘a biological or adoptive mother or father of a child….’ Black’s Law Dictionary defines ‘biological father’ as ‘the man whose sperm impregnated the child’s biological mother.’ It defines ‘biological mother’ as ‘[t]he woman who provides the egg that develops into an embryo. With today’s genetic-engineering techniques, the biological mother may not be the birth mother, but she is usually the legal mother.’ These definitions, again, indicate genetics, not gestation, is key.”
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