Gay dads take surrogate to court after she bans them from seeing twin baby girls

[Cwenthryth]

www.dailyrecord.co.uk/news/uk-world-news/gay-dads-take-surrogate-court-21231692

This popped up on my Twitter this morning, I thought it might be an interesting case to discuss here. The details are very hazy, and there are two sides to every story, but on the face of it, reading this has challenged my thoughts around surrogacy a bit - poor dads fighting for their daughters sob story, ‘the surrogate’ is painted as manipulative and dishonest. However, I really dislike how the woman is referred to as the men’s surrogate throughout the article, rather than the baby’s mother, or anything in her own right, and there is no regard for the trauma she has been through with a twin pregnancy, premature labour and very very poorly babies. She risked her life to make those girls, we are all very aware how women’s mental health can be severely affected during and after pregnancy. The article doesn’t even reference the children’s point of view/relationship with their mother, ot is all about the gay couple, their wants and their experience.

I don’t really have any conclusions at the moment but wanted to open up a discussion with other FWRers. I think perhaps the current laws are not working as well as they could, reform is probably inevitable and surrogacy isn’t going to be banned entirely any time soon, so needs to be regulated somehow.

Even if the surrogate mother acted abysmally; even if the intended parents are in this case beyond reproach; even if they will be the most wonderful parents; even if she was deceitful and money grabbing, this sorry tale proves not that surrogacy should be legal and that there should be a move towards commercial surrogacy, but that surrogacy can never be subject to pure contractual agreements.

The reason for this hideous mess is that the parties acted as if this was a contractual agreement like any other.

A marriage is sometimes described as a contract, but it is not a contract in the legal or commercial sense in English law because it is recognised that you cannot make human relationships subject to purely contractual arrangements. A spouse who has an affair may well have acted imorrally or cruelly, he has almost certainly contradicted his wedding vows. His spouse may well be able to divorce him and there will usually need to be a way to divide assets. But he has not breached a contract because marriage is about relationships. It is not the same as a builder who takes ££ but doesn't finish building an extension.

For the same reasons, it would be very unwise to introduce contractual agreements to surrogacy.

Plus, I'll say it again, women aren't vessels and babies aren't commodities.

onemorecupofcoffeefortheroad

Can I just ask you a Q about your research on Indian surrogacy please. I thought that the current position was that it had been restricted to married Indian couples but that the ban on these couples using commercial surrogacy hadn't yet been put into law? Certainly the bill tracker suggests it's still moving through Parliament prsindia.org/billtrack/surrogacy-regulation-bill-2019

Just a bit confused about the context of your research and the link you make to the pressure on women by family members being connected to the absence of a commercial market. NB I agree that there can be real problems in banning surrogacy and in unintended consequences I'm just not sure I understand your research findings.

Also the husband didn't seem at all happy, "they're not mine", he didn't feel for kicks etc. He of course had to care for the children and he would do that if the child was his...basically you'd have to have a very supportive partner and it could end your marriage. It's a lot to ask of someone, even for the ones who want to do it.

In the event a woman went ahead with surrogacy, against the wishes of her husband, I wonder if the husband could name the commissioning father as a co-respondent in a divorce? And what the legal implications for that father might be?

But surely this about disability - and we do legislate against discrimination on the basis of disability.

Yes, no one can discriminate against a couple who is infertile, but not giving them a job, or charging them more for groceries, whatever.

Not being able to have a child isn't discrimination, no one is doing it to you.

Just a bit confused about the context of your research and the link you make to the pressure on women by family members being connected to the absence of a commercial market. NB I agree that there can be real problems in banning surrogacy and in unintended consequences I'm just not sure I understand your research findings

The bill has passed through Lok Sabha (the lower house of parliament) and was due to be passed by the upper house but the Indian Govt is responding to some criticism of the bill (the ban) and has diverted it to a Select Committee - for review. We await the outcome.

A marriage is sometimes described as a contract, but it is not a contract in the legal or commercial sense in English law because it is recognised that you cannot make human relationships subject to purely contractual arrangements.

Yes, right, this!

This is why I think some people feel differently about altruistic surrogacy within families, it doesn't have the same feeling of making something that is fundamentally supposed to be about love and commitment about a contract or transaction. Because family is relational, not a contract or economic transaction.

Not being able to have a child isn't discrimination

Exactly. Neither is being unable to find a partner, for example. (Often cited when using the argument that disabled men should be allowed to buy access to prostituted women).
Both are unfortunate and can be upsetting.

But no matter how sad something is, it doesn't give anyone the right to do something amoral or harmful.

Surrogacy is deeply patriarchal, including among heterosexual couples, as Renate Klein discusses in this podcast.

podcasts.apple.com/gb/podcast/filia-podcasts/id1461524178?i=1000447756888

For instance, towards the end, she explains: if an Australian couple go to the USA to use an American surrogate, in order to get a passport for the baby to return to Australia they just need to go to to an Australian consulate and the father do a DNA test. If the baby has his DNA then he is declared the father and the baby gets a passport. The woman who gave birth to the baby, the surrogate mother, doesn't have to be there . If the wife used he own eggs that doesn't count. It's all about the man and his progeny.

"It's basically men wanting their precious genes in their own babies". (Quote).

I’ll say it again: no agreement exists within surrogacy in which someone does not relinquish rights. It’s reliant on all three parties involved to be happy and unquestioning of the outcome. That means the instant there’s a grievance, there is no structure possible that can appease all grievances.
This is true and by the time the child feels aggrieved it's way too late to resolve!

Thanks onemore that was my understanding too.

I just didn't understand the post below that you wrote earlier because the position for Indian families hasn't yet changed as I understand it. So I would have thought that if this pressure on young family members is already happening then it is not related to legislative change but to power dynamics in the family but you seem to be suggesting differently?

Your post that I am asking about:
'Yes but there's an unexpected impact to legislation of this kind.
They recently banned commercial surrogacy in India (although we also have a ban on commercial surrogacy in the UK although reading this thread you'd never know) unless it's through a close family member.

The effect: young females are being coerced and pressurised (with no proper clinical care) into being surrogates for other infertile family members. Result: less choice, less power, less control for women.
Historically, when commercial surrogacy was legal in India, all women concerned had far more control over the situation an could make choices that worked for them.'

so I'm really questioning whether your research does show that commercial surrogacy gives women more power (as you suggest) because the timing of your research suggests that the exploitation is taking place whilst commercial surrogacy is available for these families.

As regards the consultation, among the many proposals, they seek to make it easier for parents returning from abroad with a baby acquired overseas.
Just as countries such as India, Thailand, Cambodia and others clamp down on surrogacy tourism, the UK seeks to make it easier for UK citizens to go forth and exploit women overseas.

What a shameful proposal.

because it is recognised that you cannot make human relationships subject to purely contractual arrangements

I agree but equally, along with intimate labour, in all human relationships contractual arrangements play a part. We are naive to think otherwise.

Thank you Ali86 for keeping an interesting conversation going ..can't talk now
Sorry late night - but will talk in the morning.

As regards surrogate mothers who change their minds and choose to keep their babies, I have seen it said that it is more common for commissioning parents to renege on the deal than the other way around.
(If anyone can find statistical verification of this claim I would love to see it please).
I am inclined to believe it is true - the main reasons mentioned were relationship bust up (of the commissioning parents) and the baby not being a healthy baby.

Take this tragic little girl in the Ukraine, whose American parents want nothing to do with her.

It really doesn't surprise me - with healthcare being so expensive in America I can see a hard economic decision being made about taking home a poorly child. And when a baby is commissioned from a woman one has never met, thousands of miles away, what sort of emotional attachment would one have? Cancelling collection would be as easy as cancelling that new car when you are made redundant and realise you can't afford it.

Most surrogate mothers will be doing it for money, and already have children of their own, they don't want another child that may not even be genetically related to them.
Cases of mothers who decide to keep the baby hit the headlines and strike fear in the hearts of commissioning parents buyers, but it is just as likely to be the other way around.

Deep in the 500 page consultation this issue is addressed and the law commissioners breezily dismiss the problem as being no different than if parents of a normally conceived baby decide they don't want it.
I was involved in such a case a long time ago, when a couple had a Down's syndrome baby (before testing for Downs was routine). The father gave the wife an ultimatum - keep him or the baby. The baby was left on the maternity ward, and stayed with us for a couple of weeks before being fostered. During that time the mother visited a few times, bringing small gifts of toys and clothes. I have often wondered how long that marriage lasted. I digress. But how much easier is it for commissioning parents to decide they won't be taking this baby home if it doesn't come up to scratch?

I really think a lot of people talking of surrogacy as a contract grossly gloss over the potential for things to go seriously wrong in pregnancy and childbirth. Women do still die in labour. They do still end up in permanent vegetative state.

Perhaps I'm more aware of that being in the States with our high maternal mortality rates.

I'm wondering if anyone's done any actuarial calculations regarding what the true cost of a woman's risking life and health should be given the probability of things going wrong.

I have a feeling such calculations would reveal that the prices most people are paying are nowhere near high enough. That the true cost, with risk priced in, would be out of range for all but the very wealthy.

I wonder if there's any research on that in the USA? There are pages of horrible news stories

www.telegraph.co.uk/news/health/children/11055643/British-mother-rejected-disabled-twin-because-she-was-a-dribbling-cabbage-says-surrogate.html

www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html

www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/

When the consultation was still open I read a few articles and I can dig them out but one was about the widowed father of a surrogate mother who was crowdfunding to pay for her funeral. She was American, having twins for a Spanish couple and she left 3 boys behind. There is a requirement I think to have life insurance in class contracts and from what I read it was a financial choice due to their circumstances. She died before childbirth.

Another case was twins being born in Pakistan I think it was for Australian intended parents, they left the boy but took the girl. The little girl will never know her brother.

Another was a wealthy Thai businessman having multiple children born by surrogates, crazy numbers, around 20 (?) so to create a family dynasty for his business. They were cared for by an army of nannies.

And the one of the women in the UK who had kept the boy after he was born with disabilities. I read the case file on the previous surrogate the couple had for their other children and the way in which both surrogate mothers were treated was appalling, and by the 'matchmaker' as well.

And the one of the little girl left in the Ukraine as posted upthread.

If I can I will find them all and put them on the surrogacy resource thread...

That would be great @OhHolyJesus

Surrogacy Resource thread : please post your links here www.mumsnet.com/Talk/womens_rights/3782983-surrogacy-resource-thread-please-post-your-links-here

I'll add a few links later too.

Check this out - from 2006!

www.dailymail.co.uk/femail/article-423125/Surrogate-mother-says-Sorry-Im-keeping-babies.html

It notes that this is thought to be the first time the surrogate kept the babies and it also mentions a review of the Surrogacy Arrangements Act 1985 so the law was being looked at back then.

I have often wondered how long that marriage lasted.
That's a terrible story. I wonder if the idea that men's "legacy" drives surrogacy means men are more likely to take a dispassionate view of the transactional aspect? And whether men are more likely to reject "imperfect" babies?
I know a lot of the control of women is/was because men want to ensure any offspring they raise are biologically "theirs". Are there any sources on whether women are more or less likely to bond with adopted children, for example? How often with rejected surrogate babies is the decision down to the woman?
There might be no correlation but it would be interesting to know.

OhHolyJesus wow what a story.

We only get one side, again, and the commissioning parents might be nice people, but I can't help but feel that outcome is better for the babies.

Probably the worst of both worlds for the commissioning father though.

I'm wondering if anyone's done any actuarial calculations regarding what the true cost of a woman's risking life and health should be given the probability of things going wrong.

UN hazard pay is about $1,400 per month.

(Over and above any salary.)