In the more than 20 years since Mary Beth Whitehead sued for the return of Baby M, the child she carried as a surrogate for William and Elizabeth Stern, the science of reproduction has expanded dramatically and with it new and difficult legal challenges perhaps unforeseen by the parties involved and their lawyers are emerging.
The Baby M case was fairly simple: Using William’s sperm and Mary Beth’s egg (and uterus), Mary Beth carried the baby to term and then gave the child to the Sterns as per the terms of their surrogacy contract. She was paid just for “medical expenses and out of pocket costs.” When she sued one month later for the return of the child (seller’s remorse, I guess) the case went all the way up to NJ’s highest court, which ruled that such contracts are invalid as a matter of public policy and awarded custody to the Sterns and visitation to Ms. Whitehead, in the best interest of the child. This of course is a result that could have happened if the baby’s biological parents had been married then divorced, so it was not that difficult a legal decision once the contract was invalidated.
But now comes the case of Lashelle Baker versus Amy and Scott Kehoe of Michigan. The Kehoes had tried to have their own children but were unsuccessful, so like any other American couple searching for a hard to find item, they went online and found Surromomsonline.com. They liked Ms. Baker’s ad because both Ms. Baker and the Kehoes lived in Michigan and indicated they preferred being in close contact with the other side during pregnancy. Ms. Baker had four children of her own and had been a surrogate mother for three others and she enjoyed sharing the pregnancy experience with the parental couple. Now here’s the twist: the child was produced by fertilizing an egg from an anonymous donor with sperm from a likewise anonymous donor. The fertilized egg was then implanted in Ms. Baker’s experienced uterus. So it took five people to produce this pregnancy: egg donor, sperm donor, Ms. Baker to carry it to term and Mr. & Mrs. Kehoe to pay the approximately $100K in costs. The Kehoes were overjoyed when Ms. Baker delivered a set twins, one boy and one girl (Two for the price of One!: it must have been a BOGO day on the website).
All was hunky-dory right up to date of the guardianship hearing which was when the transfer of the children was to occur formally. In response to a routine question from the court, the Kehoes revealed that Ms. Kehoe was on medication for paranoid disorder. Ms. Baker, upon hearing this, withdrew her consent for the transfer. She then decided to keep the children herself, despite Ms. Kehoe being more than 8 years trouble free and on medication. She claimed she couldn’t live with herself not knowing if Ms. Kehoe was staying on her meds. She sued to void the surrogacy contract and keep the children. Now mental illness alone is not a bar to adoption in Michigan as long as it is under control. Ms. Kehoe’s psychiatrist submitted an affidavit saying that nothing prevented her from being a good mother as her disease had been fully controlled for 8 years and she had no current symptoms. (Interestingly, in the Baby M case, the Sterns sought a surrogate not because they were infertile, but because Ms. Stern had multiple sclerosis and a pregnancy and delivery could have permanently paralyzed her.)
So the Michigan court was faced with a custody battle in which neither side shared any DNA with the children at issue. Unfortunately for the Kehoes, the court sided with Ms. Baker as Michigan strongly opposes surrogacy contracts. In fact, the Michigan penal code says commercial surrogacy is a crime punishable by up to five years in prison and a $50,000.00 fine. There is also a civil statute that says surrogacy contracts are unenforceable as being contrary to public policy. So the question arises:
WHO WAS THE KEHOE’S LAWYER!
The Kehoes claim to have had consulted with a lawyer every step of the way. What kind of attorney would not look at the laws in Michigan and advise the Kehoes that might as well enter into a contract to buy the Brooklyn Bridge. The lawyer could have referred them to the 10 states that allow surrogacy contracts (most states have no laws regarding surrogacy and a handful are like Michigan’s). When she was reached for a comment after the decision, Ms. Kehoe said: “Justice does not prevail in this case due to Michigan’s laws.” What? I feel terribly for her, but she needs to understand that when the rule of law is properly enforced, justice does prevail. Here the statute was clear that the contract would be unenforceable so what else could a court do? If their lawyers did not advise them of these facts, then they should be sued for malpractice to at least get the $100K back that they spent.
But the case raises other interesting issues regarding parental rights. We all know that later on in life, many adopted children yearn to find their “birth parents” and many have been successful in getting adoption agencies to open their records to them. Well, could babies born of donated gametes do the same? It seems to me that the same rules should apply so that if an adopted child can find his birth parents, then the donated child should be allowed to find out who the donors were. What if the woman who carried the child dies before the baby is formally adopted? Does the husband who was married to surrogate automatically get the baby? What if he doesn’t want the baby? Can he be forced to support the child? None of these issues have been tested in a court of law yet but when they do arise, it will force us to realize that we are turning children into a commodity when we allow surrogacy without requiring that at least ONE parent have a genetic connection to the child. Any state looking to add a law on this issue should at least make that one of its provisions.
So let’s catch up with the kiddies: Ms. Baker has renamed the children (now nearly six months old) but has not done so legally because she and her husband cannot afford the $300 fee for filing the name change in court. (Wait, who was mentally ill in this scenario? You have 6 kids but don’t have spare $300?) As for Baby M, Melissa Stern, as soon as she turned 18, she terminated Ms. Whitehead’s maternal rights and was legally adopted by Ms. Stern, who is still married to Mr. Stern. Melissa was graduated in 2008 from George Washington University with a degree in -get this – religious studies. In a recent interview, she says she felt awkward when she was studying the Baby M case in her bioethics class at GWU.