California is once again proving that surrogacy should only be done in a state where all parties – surrogates and intended parents – can rest assured that their surrogacy agreement will be honored. Like we have seen most recently overseas in Thailand and India, not everyone lives up to their end of the bargain. And, now that has hit the US.
In Tennessee a surrogate decided one week after birth that she wanted to keep her genetic child that she was carrying for an Italian couple. You see she was a traditional surrogate, one who was inseminated with the Intended Father’s sperm. Now after years of legal bouts in lower courts where the surrogate was denied any custody, the Tennessee Supreme Court has just ruled that she is entitled to some custody and visitation.
Unfortunately for everyone involved, the 3-year-old child lives in Italy, speaks no English and has never known her surrogate mother. According to the Tennessean:
Tennessee’s surrogacy law “lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,” the Supreme Court noted in its opinion. That “leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”
The lack of legal guidelines has led to heartbreak.
“Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated,” said Benjamin Papa, an attorney for the Italian couple, whose identities — like the surrogate’s — remain confidential in the court’s order.
“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”
The case is one of two recent court decisions illuminating a void in state laws guiding surrogacy contracts.
Tennessee’s lack of legal guidelines extends to gestational surrogacy, a more common surrogacy arrangement. Unlike the case of the Italian couple, who used traditional surrogacy – in which the surrogate’s own egg was fertilized by the Italian father’s sperm – gestational surrogacy involves implanting a fertilized egg into a surrogate that has no biological relationship with the woman pregnant with the baby.
Sidenote: Tennessee is one of four states that require an intended mother who uses an egg donor to wait until after the child’s birth to become the legal parent. The mother has to adopt the child. The other states are Nebraska, Louisiana and Iowa.
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