Guess what? You are not the mother, the kids are mine!
HLN (formerly “Headline News”) recently called me to help them explain/discuss the legal issues in a very interesting case about whether a “surrogate” mother is also a legal mother (To see the interview, click here: /video).
The case arose when a woman who could not have kids of her own agreed to have a child with a long time male friend. They decided to use a donor egg, his sperm and she would carry the baby. But when she gave birth, she was immediately served with papers saying that he was the only legal parent and would be raising the child with his male lover/partner. They even obtained a restraining order to prevent her from breastfeeding. We don’t know what documents were signed (but it was likely a “surrogacy” agreement disclaiming any rights to the child, probably thinking she was merely signing documents needed to get the donated egg), but no matter what, she was devastated. And the interesting legal point is: Is a surrogate mother a legal mother? What happened? What did she sign? Was she defrauded? Do the normal rules of contracts (meeting of the minds, absence of fraud) even apply, or should there be a higher standard to meet before the father can enforce such a contract. As of the time I was interviewed, the father had custody and the woman (should we call her the mother?) was suing to get rights to the children.
So why is this such a new thing? Because artificial insemination is only thirty years old. Before that there was no possibility of such a problem. And even then, it was all very controlled. Now that surrogacy and ART (Artificial Reproductive Technology) is becoming commonplace, this issue, and many like it are arising and challenging us. Law vs morality. Social values vs. strict contract terms. And that is where we as lawyers can help. Until the legislatures of the states and perhaps of the United States can predict and resolve all such dilemmas in advance, great lawyering and judging will have to get us through.