in his state. Surrogacy is banned in one European country after another. Here, Justice Minister Alan Shatter appears to be contemplating one of the most liberal surrogacy regimes in the world.
Surrogacy is, of course, a process by which a woman who may or may not be the genetic mother carries a child only to surrender it to a contracting couple upon it birth.
Typically, the gestational or surrogate mother in this case is paid “expenses” and comes from a poorer background than the commissioning couple.
International law in this area is scanty, because it is a relatively new area. Nonetheless, what it does have to say gives little comfort to those who wish to introduce surrogacy.
In the case of S.H. and others v Austria, the European Court of Human Rights upheld Austria’s ban on surrogacy. Austria bans it on the basis that the procedure splits motherhood.
The ECHR said this was a justifiable policy concern, and that the ban did not interfere with the plaintiff’s right to a family life as set out in Article 8 of the European Convention on Human Rights.
In other words, the right to a family, enshrined in Article 8, does not extend to the right to found a family through surrogacy.
The same court was also adamant in E.B. v France that Article 8 did not guarantee the right to adopt.
It said: “The right to respect for ‘family life’ does not safeguard the mere desire to found a family.”
Article 4.4 of The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption has this to say about pre-birth or pre-conception adoption: “[T]he consent of the mother, where required, has been given only after the birth of the child.”
If a woman cannot agree to give up her baby for adoption before it is born, how can a surrogate mother agree to do so before her baby is born?
Governor Christie, in vetoing the surrogacy bill, said he was concerned that the supporters and sponsors of the surrogacy bill had failed to properly considered the many ethical problems posed by surrogacy.
Many of these concerns were highlighted in a New Jersey case heard by that state’s Supreme Court in 1988.
In the case, Mrs. Whitehead, a married woman with an eleven-year-old son and an eight-year-old daughter, made a contract under which she was impregnated with the sperm of Mr William Stern through artificial insemination. The contract was between Mrs Whitehead and Mr Stern and his wife Elizabeth.
The child, born on March 27, 1986, named Sarah by Mrs. Whitehead, and Melissa by the Sterns, was genetically related to Mrs. Whitehead and Mr. Stern.
Mrs Whitehead then decided she did not want to give up her child to the commissioning couple after all. The case ended up in court.
The Supreme Court held that the contract was unenforcable. As Harold Cassidy the lawyer for the surrogate mother in the case, points out in this blog: “The central purpose of all forms of surrogacy contracts is to terminate the parental rights of the legal mother who carries and bears the child, and to confer legal status as mother or parent on a different person—usually a stranger genetically unrelated to the child.”
The Supreme Court based its refusal to enforce the surrogacy contract on a number of principles.The contract, they held, was a plan, before the child’s conception, to deliberately separate a child from his or her mother. They found that states’ policies had always been that children should get to know, love, and be raised by both his or her natural parents wherever this was possible.
They held that no consent to surrender a child to adoption made prior to the birth of the child is ever considered a legal basis to terminate a mother’s rights if she wants to maintain her relationship with her child following birth.
The court observed that private adoptions are frowned upon in most jurisdictions and that surrogacy arrangements were made not in the child’s best interests.
They further noted that the surrogacy contract circumvented all laws requiring the surrogacy mother to be counselled before she surrendered her parental rights. For this reason, the contract made surrender of the child after birth not truly voluntary or informed.
Further, they said that surrogacy exploits women as a “surrogate uterus” or an “incubator” and turning a mother into an inanimate object, which denigrates the woman in her role as mother.
In his ruling, Chief Justice Wilentz’s had this to say on the validity of surrogacy contracts:
“There are, in a civilised society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was ‘voluntary’ did not mean that it was good or beyond regulation and prohibition . . . There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.
“Whether we will use our collective power through our courts to make someone perform under a contract against their will is always a question of whether forcing the person to comply is consistent with our values as embodied in our public policies.
“Thus, we do not require performance of a contract to murder; nor do we enforce a contract for a usurious rate of interest, or for the sale of body organs, and we certainly do not enforce a contract for the sale of a child; we have never forced a perfectly fit mother to separate from a child she loves and wants, simply because she once said she would agree to separation after the child’s birth.”
It is to be hoped that our politicians, before legislating to allow surrogacy here, will at least consider some of these reflections.
Meanwhile, here is a big and extensive official document on the issue of surrogacy produced in New Jersey in 1992.
