Babies for sale - New Birth Technologies call for rethinking the definition of family and individual

Public Interest, Spring, 1993 by Robin Fox

The question, then, is open: Should a surrogate mother have fewer rights in this matter than the mother of a baby put up for adoption? There is here, it might be argued, a genetic father with rights in the child. This is not disputed. In the adoption case there is a genetic father also, but he is rarely ever consulted. The issue is, as we have said, whether an agreement is sufficient to extinguish the mother's parental rights.

Nor must we lose sight of the overriding consideration of the "best interests of the child"--fondly known in legal circles as "BIC." BIC arises only if the issue of custody is reached, that is, if the courts decide that parental rights reside in both father and mother. This would require a fitness hearing in which the court would try to determine which of the parents was most fit to have custody, and would probably allow visitation rights by the other parent, much as in a divorce case.

More to the point, perhaps, in countering the "a deal is a deal" mentality is the issue of what contracts can legally be written. All states and the federal government have statutes which specifically rule out certain things as subjects of contracts. Thus prostitution, slavery, and baby selling are prohibited in all states. Any contract, for example, to provide sexual services or to sell a baby could indeed be written and signed, but if a party defaulted and was sued, the suit would get nowhere and the plaintiffs might even be open to criminal prosecution.

Can a father buy his baby?

In the various surrogate mother cases around the country that had cropped up, the specific issue of a mother refusing to give up her child had not arisen, so the Baby M case was to set an important precedent. But in anticipation of such cases, and in response to other issues in surrogate mothering being brought to court, many states had given relevant judgments and advanced legal opinions through their attorneys general. One of the most popular opinions was that surrogate mothering violates state "baby selling" statutes. Is this a fair analogy? Is surrogate mothering a form of baby selling?

Legal opinion largely said "yes." At the time, Kentucky provided the best testing ground since the courts at different levels had taken different views and so aired most of the possibilities. The attorney general of Kentucky believed that surrogate mothering constitutes illegal baby selling. A Kentucky court, however, held that surrogate arrangements are very different from adoption arrangements. Kentucky did indeed have strong laws against selling children, but the court asked how a natural father could be characterized as either adopting or buying his own baby. He pays not for the child per se, but for the services of the surrogate in carrying and bearing the child. Since he cannot be buying his own child, the arrangement does not violate baby selling laws. The Kentucky Court of Appeals finally agreed with the attorney general: This is an adoption procedure (by the father's wife at least); money changes hands; it does contravene Kentucky laws.