Forcing a surrogate mum to part with her child is an outrage.This is messed up. I cannot agree with the judge throwing out contracts and deciding based on her own opinion of a baby being reared by gay men. Nor can I agree with saying that a woman can just change her mind about such an important matter whenever she pleases, after taking many 1000s of dollars.
Earlier this month, the English High Court forced a mother to hand her 15-month-old toddler, Baby M, over to the man who had commissioned the baby by surrogacy. In response to this ruling, there was muted criticism and little discussion of any need to change the law in favour of mothers. Indeed, if it hadn’t been for the fact that the mother was forced to hand her child over to a man and his gay partner, it seems unlikely that the case would have been deemed newsworthy at all – the Daily Mail’s headline, ‘Judge takes toddler from “homophobic” mum to live with gay dad and his lover’, is a case in point. Yet the fact that our courts can force any mother to hand her baby over to any commissioning father should be the real point of concern. Something is seriously wrong with the moral compass of our policymakers.
Baby M was conceived artificially with the father’s sperm after the mother and commissioning father, H, entered into a surrogacy agreement. But by the time of Baby M’s birth, it was clear that the mother wanted the child to be hers. She made sure H was not at the hospital when the baby was born, she registered the birth without putting H on the birth certificate, and she chose the baby’s name.
Within a fortnight of the baby’s birth, H and his partner went to court. Fifteen months later they obtained a court order that said the toddler must live with them, while the mother’s contact with the child would be limited to visits supervised by an official. By court order, then, this toddler will not be allowed to live, or stay overnight, with her mother. To all intents and purposes, the normal mother-daughter relationship is at an end. H and his partner are now responsible for bringing up Baby M for the remainder of her childhood.
Some of those in the press directed their ire at the judge personally, after noting that she was the first judge to insist on being addressed as ‘Ms’ rather than ‘Mrs’, and that she did not have children of her own. These criticisms are misplaced. The judge reached her conclusion by applying the law, and it’s a law that required the judge to disregard the mother’s interests. Yes, you read that sentence correctly: if a surrogate mother changes her mind and reneges on an agreement to give her baby to the commissioning parents, then all parties may come to court with an equal right to have the baby. The Court of Appeal accepted in 2007 that ‘both sides start from the same position’. The fact that the mother has carried the baby for nine months and given birth to it gives her no right to resist a residence application from the commissioning father. The fact that the biological parents have never been in a relationship is also to be disregarded. The law on surrogacy now treats the birth mother as little more than a vessel – and that is inhumane.
In a surrogacy agreement the commissioning father will surely have made a considerable emotional investment and one can understand his disappointment if the woman who agreed to hand over her baby changes her mind, or, indeed, if she decides to abort the baby (as can happen). But the circumstances of the mother and father in a surrogacy agreement are not comparable, at least not in the eyes of anyone who values the right of a woman to have bodily autonomy and to determine the future of her offspring. Put simply, the mother should always have the right to change her mind. As Frank Furedi has pointed out, no woman who agrees to be a surrogate can be sure how she will feel about the child-to-be as it grows in her womb. These rights should also apply to women who never intended to hand over the baby (which is what the judge found to be the case with regard to Baby M). ...
While policymakers have flattened the moral landscape, judges have been given a free hand to intervene in disputed surrogacy agreements and to make judgements under the rubric of doing what is in the child’s best interests. Clearly, if the mother is a violent heroin addict, for example, then there would be a case for intervening and acting in the child’s best interests. But the Baby M case did not raise such issues and the judge noted that, under her mother’s care, the child ‘has come to no serious harm’.
It appears that the system is being rigged to give judges more power, and to promote various gay or feminist goals.