In Brief

More on Belsito. The Belsito court made an interesting comment:  “For the best interest of the child and society, there are strong arguments to recognize the genetic parent as the natural parent.  The genetic parent can guide the child from experience through the strengths and weaknesses of a common ancestry of genetic traits.”  Is this true or wishful thinking?  There is evidence that personality traits, such as agreeableness, extroversion, neuroticism, and novelty-seeking, have a strong genetic component.  See, e.g., www.biojuris.com.  Addiction also has a clear genetic basis.  Epidemiological studies indicate that genetic factors increase the risk of addictive behavior, such as alcoholism.  Nestler, Nature Genetics, 26:277-281, 2000.  Having an alcoholic parent is considered to be the primary determinant of whether children become alcoholics themselves.  Whether alcoholism and other addictions are explained by genetic or environmental factors, the issue is the same: Does a parent’s weaknesses really strengthen a child’s chances of avoiding them, or does it increase the probability that such child will turn out to be the same, flaws and all?

The Baby M case.  Yet another approach to surrogacy disputes is to consider the best interests of the child.  One of the most highly publicized cases of surrogacy was the Baby M case.  William and Dr. Elizabeth Stern had contracted with Mary Beth Whitehead to be artificially inseminated with William’s sperm.  After giving birth, Mary Beth changed her mind, refusing to hand the child over to the Sterns.  Under both the genetic and birth tests, Mary Beth was the legal mother of Baby M.  She failed the intent to procreate test promulgated by the Johnson court, however, since, at the time of conception, she did not intend to become a parent herself, but instead had contracted to carry a baby for the Sterns.  The case took on soap opera proportions, when Mary Beth with Baby M in her arms, refused a court order to give up the child.  Instead, she fled the state, living in a series of motels, while the Sterns, the media, and the police were in hot pursuit. 

Ultimately, the New Jersey Supreme Court invalidated the surrogacy contract between the Sterns and Mary Beth.  In the Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988).  According to the opinion, public policy, as well as statutory state law, prohibited the use of money in connection with adoptions.  The surrogacy arrangement between the Sterns and Mary Beth was nothing more than baby selling.  Baby-selling, the court, opined, was potentially exploitative for all parties involved. 

Having decided that the contract was invalid and unenforceable, the court resolved the custody issue in favor of the Sterns for the reason that it was in the best interests of Baby M.  There were two issues that weighed in the Stern’s favor, financial and psychological.  The Sterns were in a better position financially than the Whiteheads.  In addition, the stability of the Whitehead household was in question.  Mr. Whitehead was an alcoholic, and Mary Beth was apparently controlling and emotionally unstable (“Certain of the experts noted that Mrs. Whitehead perceived herself as omnipotent and omniscient concerning her children.”).  For these reasons, the court gave permanent custody of Baby M to the Sterns.  On the other hand, according to the Belsito court, the genetic mother is best suited to prepare her genetic child to deal with inherited weaknesses and traits.  Wouldn’t it have been better to place Baby M with her genetic mother to deal with a possible propensity toward control issues and emotional instability?

The McDonald case. In McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (N.Y. 1994), Robert McDonald sought custody of the two children of the dissolved marriage on the grounds that the mother was not the legal mother of the children.  Olga McDonald, now Olga Benitez had conceived of two twin girls by in vitro fertilization.  The sperm was Robert’s, her then husband, but the ovum was from an anonymous female donor.  Olga was the gestational mother.  In the custody battle, Robert argued that his claim to custody was superior to Olga’s because he was their genetic father, while she was completely unrelated.

The court denied Robert’s request on the grounds that Olga was the legal mother under both the birth and intent to procreate tests.  Moreover, she had been the custodial parent since the birth of the twins.  However, the court did grant his request to amend the birth certificates of the children to state that he is their father and to change their surname from Benitez to McDonald.  Doing so, the court said, reinforces the principles of legitimacy.  Moreover, “Deprivation of a father’s surname is a serious and far-reaching action, more so in our American society with respect to a male child that normally carries a surname throughout life, but still an important right with respect to a daughter.”  The twins were girls.

Adoption versus new reproductive strategies. Surrogacy, artificial insemination, in vitro fertilization, and other modern reproduction methods look a lot like adoption.  The following is a summary of several possible scenarios. 

A, anonymous; S, surrogate; W, wife; H, husband.

The table illustrates the relationship between old and new reproductive strategies.  A wife’s adoption (B.) of stepchildren from her husband’s first marriage is analogous to the situation where an infertile wife “conceives” of a child with her husband’s sperm and a donor’s egg (E.).  Adoption by a husband of a wife’s child from an earlier marriage (C.) is like artificial insemination (D.).  Adoption of a completely unrelated child by a couple (A.) is like Buzzanca (H.), where a couple creates an offspring from donor sperm and donor ovum.  An entirely new reproductive strategy is seen in the Johnson and Belsito cases (F.), where an offspring related to both the wife and husband is gestated by an unrelated female.  McDonald is another case where no strategy like it had been seen before.  In this case, the wife gestates an unrelated ovum fertilized with her husband’s sperm.

Two moms and a dad.  Some babies have three biological parents.  Some women are infertile because of defects in their mitochondria, the powerhouse of the cell.  To overcome this defect, researchers took egg cytoplasm containing mitochondria from an unrelated ovum, and injected into the ovum of an infertile woman.  This modified ovum was fertilized with the husband’s sperm, and then implanted back into her ovary.  Children born from such a procedure carry DNA from the father who is the sperm donor, the mother who produced the defective ovum, but also mitochondrial DNA taken from the unrelated, donor ovum.  This is the first reported case of a human being genetically-altered.  Barritt et al., Human Reproduction, 16:513-516, March 2001.

(6) Adoption is not limited to humans.  Delilah and Charlotte were red-capped mangabeys living at the Audubon Park and Zoological Garden in New Orleans, Louisiana.  Delilah was the older and more dominant female.  They both became pregnant at the same time by the same male.  Delilah had already had several children, but this was Charlotte’s first.  Charlotte’s baby was born a week before Delilah’s.  The day after Delilah’s baby, Nikita, was born, he was found in the arms of Charlotte, along with her baby Sasha.  Delilah made no attempt to retrieve him.  For two months, Charlotte took care of both infants.  Nikita then began to approach his biological mother.  She carried him intermittently, but he always returned to Charlotte who nursed him.  After about two-weeks, Delilah took her baby back.  Watts et al., Laboratory Primate Newsletter, 32(4): 18-20, 1993.  For what reason did Nikita’s biological mother give him up for adoption and then why did she take him back?  This sounds like a strategy many humans embrace.  Having already had several children, she knew from experience that the first few months of an infant’s life is the most taxing time for the mother, so she enlisted the help of a nursemaid by letting the younger Charlotte take on the burden.

Surrogate statutes.  To make matters easy, some states have adopted laws that determine parentage when surrogates are used.  From Virginia’s Code:

§ 20-158. Parentage of child resulting from assisted conception.

A. Determination of parentage, generally. - Except as provided in subsections B, C, D, and E of this section, the parentage of any child resulting from the performance of assisted conception shall be determined as follows:

1. The gestational mother of a child is the child's mother.

2. The husband of the gestational mother of a child is the child's father, notwithstanding any declaration of invalidity or annulment of the marriage obtained after the performance of assisted conception, unless he commences an action in which the mother and child are parties within two years after he discovers or, in the exercise of due diligence, reasonably should have discovered the child's birth and in which it is determined that he did not consent to the performance of assisted conception.

3. A donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.

B. Death of spouse. - Any child resulting from the insemination of a wife's ovum using her husband's sperm, with his consent, is the child of the husband and wife notwithstanding that, during the ten-month period immediately preceding the birth, either party died.

However, any person who dies before in utero implantation of an embryo resulting from the union of his sperm or her ovum with another gamete, whether or not the other gamete is that of the person's spouse, is not the parent of any resulting child unless (i) implantation occurs before notice of the death can reasonably be communicated to the physician performing the procedure or (ii) the person consents to be a parent in writing executed before the implantation.

C. Divorce. - Any child resulting from insemination of a wife's ovum using her husband's sperm, with his consent, is the child of the husband and wife notwithstanding that either party filed for a divorce or annulment during the ten-month period immediately preceding the birth. Any person who is a party to an action for divorce or annulment commenced by filing before in utero implantation of an embryo resulting from the union of his sperm or her ovum with another gamete, whether or not the other gamete is that of the person's spouse, is not the parent of any resulting child unless (i) implantation occurs before notice of the filing can reasonably be communicated to the physician performing the procedure or (ii) the person consents in writing to be a parent, whether the writing was executed before or after the implantation.

D. Birth pursuant to court approved surrogacy contract. - After approval of a surrogacy contract by the court and entry of an order as provided in subsection D of § 20-160, the intended parents are the parents of any resulting child. However, if the court vacates the order approving the agreement pursuant to subsection B of § 20-161, the surrogate is the mother of the resulting child and her husband is the father. The intended parents may only obtain parental rights through adoption as provided in Chapter 10.2 (§ 63.1-219.7 et seq.) of Title 63.1.

E. Birth pursuant to surrogacy contract not approved by court. - In the case of a surrogacy contract that has not been approved by a court as provided in § 20-160, the parentage of any resulting child shall be determined as follows:

1. The gestational mother is the child's mother unless the intended mother is a genetic parent, in which case the intended mother is the mother.

2. If either of the intended parents is a genetic parent of the resulting child, the intended father is the child's father. However, if (i) the surrogate is married, (ii) her husband is a party to the surrogacy contract, and (iii) the surrogate exercises her right to retain custody and parental rights to the resulting child pursuant to § 20-162, then the surrogate and her husband are the parents.

3. If neither of the intended parents is a genetic parent of the resulting child, the surrogate is the mother and her husband is the child's father if he is a party to the contract. The intended parents may only obtain parental rights through adoption as provided in Chapter 10.2 (§ 63.1-219.7 et seq.) of Title 63.1.

4. After the signing and filing of the surrogate consent and report form in conformance with the requirements of subsection A of § 20-162, the intended parents are the parents of the child and the surrogate and her husband, if any, shall not be the parents of the child.

§ 20-159. Surrogacy contracts permissible.

A. A surrogate, her husband, if any, and prospective intended parents may enter into a written agreement whereby the surrogate may relinquish all her rights and duties as parent of a child conceived through assisted conception, and the intended parents may become the parents of the child as provided in subsection D or E of § 20-158.

B. Surrogacy contracts shall be approved by the court as provided in § 20-160. However, any surrogacy contract that has not been approved by the court shall be governed by the provisions of §§ 20-156 through 20-159 and §§ 20-162 through 20-165 including the provisions for reformation in conformance with this chapter as provided in § 20-162.