I was genuinely shocked and appalled to discover that a judge had ruled that a one year old infant should be taken away from her mother and handed over to a gay couple with whom she had a surrogacy arrangement. The right of a court to force a mother to part with her child because of an informal agreement and cash transaction raises some disturbing questions about the nature of maternal right, the right of women to determine the future of her offspring and the trumping of parental and child relations by market forces. In effect the decision formalises the tendency to turn babies into a chattel.
Surrogacy arrangements are fraught with tension since everyone involved in them have made a significant amount of emotional investment in their outcome. In most cases the informal arrangements made by the different parties come to a satisfactory conclusion. The woman who gave birth abides by the arrangement and the anxious couple walk away happily with a child. Not surprisingly at a time when a record number of couples are turning to surrogacy some of these arrangements come unstuck. Often this occurs because the mother of the baby changes her mind and decides that she will keep her child rather than hand it over to the other parties involved in the surrogacy arrangement. Mothers must have the right to change their mind - whether it is about giving up a child for adoption or choosing to have an abortion - if women right to choose is to have any meaning.
Inevitably the breakdown of a surrogacy arrangement leads to an acrimonious dispute where everyone genuinely feels that they have the moral right to the child. Until now the convention that prevails in the UK has been based on the sensible approach of treating the woman who gives birth as the legal mother. Even if a woman uses donor eggs and sperm if she has given birth to a child she is rightly recognised as not just the baby’s mother but her legal mother. If she gives the child to the people involved in the surrogacy arrangement she opts to cease to exercise her right to motherhood but until that point she is the legal mother.
There are very good reasons why the woman who gave birth must be considered to be the legal mother with full rights to keep her child. Once the moral relationship between a birth-mother and her child can be trumped by a transaction than relation between parent and their offspring can become subject to a variety of corrosive forces and pressures.
Decent societies recognise that the relationship between mothers and their babies is special and unique. A humane and civilised society understands that this relationship should be protected and insulated from forces that would disrupt it. It also grasps that whatever cash transaction was entered into by the different parties it can have no moral authority over the decision taken by the mother concerning the future of her new born child.
The relationship of a woman to her pregnancy can and does change from conception to birth. For some the experience is disruptive and they may become estranged from it. Others experience pregnancy in the opposite manner. Many who agreed to hand over their baby to another party at the start or who have had an unwanted pregnancy develop a strong attachment to the child-to-be they carry in their stomach. That is why society must be open to allowing women who give birth to decide whether or not they can keep their child.
Although we live in a market economy most sensible people believe that babies should not be for sale. Whatever the commercial arrangements made by the contracting parties it does not guarantee that upon the delivery of a baby it will be handed over to them. A baby should not be treated as a chattel. This point is recognised in UK law which bans any form of commercial surrogacy.
‘Bad’ mother have rights too
The recent ruling by the judge, Ms. Justice Russell, calls into question the convention that gave the birth mother the legal right to their child. In this case the mother entered into a surrogacy agreement with a gay couple and decided to break the deal and keep her child. The child’s genetic father took this case to court and argued that the mother should abide by the agreement whereby he and his male partner would co-parent the girl.
What was remarkable about the ruling made by Justice Russell was it implicitly questioned the legal right of a birth mother to her child. The ruling stated that the ‘pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend; this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place’. The ruling adopts the view that pregnancy can be instrumentally regarded as a contrivance with an aim and purpose. From this standpoint the original agreement carries more moral and legal weight than the right of a mother to change her mind and keep the child’.
The court’s sacralisation the surrogacy agreement was further reinforced by the ruling on the grounds ‘that the reality’ of the girl’s conception ‘accords’ with her ‘identity and place within her family’. What that means is that the reality of the girl’s identity is given by the previous surrogacy agreement and legitimated by a decision of the Court. This disassociation of a child’s identity from her relation to her mother in effect allows a court to determine who you are. It is also a way of saying good-bye to the right of a birth mother to her child.
Anyone listening to the court proceedings would note that the Court regarded the mother as morally inferior to the other parties in the transaction. Justice Russell criticised the mother for her offensive language, her alleged anti-gay attitude and for disrupting the men’s evidence by continuously expressing breast milk to indicate her closeness to the baby. It is of course entirely possible that this mother is not a nice person. But she is by no means the only women whose attitude and behaviour do not conform to the standards set by Justice Russell. Are they also going to have their license to motherhood revoked? The logic of this ruling is that the right to motherhood depends on sharing the moral universe of a judge.
Less law, more sense
Numerous members of the legal profession have reacted to this very messy trial by calling for the legal regulation of surrogacy. Their argument to clarify the law would be mean the end of the non-legally binding informal arrangements that prevails today. The formalisation of surrogacy arrangements might limit the number of disputes that surround surrogacy. But the formal regulation of surrogacy would deprive mothers of their moral right to determine their child’s future. Worse still the transformation of an informal arrangement into a legally binding contract threatens to lead to the marketization of child-bearing. It would - as in many parts of the world - turn baby into a commodity akin to human pets that can be bought and sold.