Surrogate Mother Wins Right to Sue for Custody; Police Chief Sentenced for Stealing Surrogate Items

In the world of convoluted conception, complications are setting in like labor pains--they are not going away anytime soon. On the heels of yesterday's post about a biological mother going underground with her daughter rather than sharing the girl as court ordered with her former gay partner and legal parent, today there's another surrogacy custody fight heading for the courts in the spring. 

A New Jersey judge has ruled that a surrogate mother who bore twin girls not conceived with her ova is the legal mother of the children and has the right to seek primary custody of them at trial in the spring. The woman, Angelia G. Robinson of Jersey City, agreed to bear the children for her brother, Donald Robinson Hollingsworth, and his male spouse, Sean Hollingsworth, using Sean's--not her brother's--sperm. After the girls were born in October, 2006 they went to live with the men, but within six months, in March 2007, Robinson sought custody, alleging that she had been coerced into the arrangement. Since then she has been taking care of the girls three days a week.

Judge Francis B. Schultz of Superior Court relied heavily on precedent established by the New Jersey Superior Court in the infamous 1987-88 case of  Baby M, in which a surrogate mother, Mary Beth Whitehead, carried her own genetic child for another couple, Elizabeth and William Stern, after being artificially inseminated with Stern's sperm. After she gave birth Whitehead breast-fed the baby and decided she could not give her up. In the end, in a legally complicated and convoluted decision, the Sterns were granted custody, but the court ruled that Whitehead's maternal rights could not be terminated against her will, that surrogacy contracts were against public policy. Whitehead was eventually able to win visitation rights, and though I can't find them on the net today, I remember reading at least one story several years later when the girl was visiting Whitehead and her two half-siblings at her home.

At the time, both the adoption and adoption-reform community were deeply involved in the ongoing saga that generated nearly as many stories in the media as a certain famous golfer with a predilection for promiscuity did recently. Though adoption-reform community came down heavily in favor of giving Whitehead custody of her daughter, most of the rest of the media titled toward the Sterns. Working-class Whitehead was portrayed as a somewhat pathetic creature--she was unstable because she changed her mind about giving up her daughter--and the expert testimony at trial was heavily weighted in favor of the upstanding middle class couple, the Sterns. For having agreed to be a surrogate in the first place, for not being of the solid middle class background of the Sterns (Elizabeth (Betsy) Stern was a doctor), for having the temerity to change her mind about giving up her baby, Whitehead was pilloried in the press. However, there were exceptions.

We note that one of our friends, Michelle Harrison, now an adoptive mother to many in India--not from, but IN India--wrote in Perspectives that the testimony of experts was heavily "imbued with prevailing middle-class beliefs about good mothers and good parenting." Which of course would exclude many first/birth mothers--then, and today--from being considered suitable mothers. The New York Times ran an editorial, "There Is Nothing Surrogate about the Pain," that condemned the trial as biased against both women and the working class and called for joint custody. Feminists, who have largely looked away from the plight of first/birth mothers, spoke out for Whitehead. Adoption-reform pioneer Florence Fisher did also.

Yet the prevailing wind was with the Sterns. Even most women, without the perspective of having lost a child to adoption, or in a custody fight, sided with the couple. They simply did not like lower-class Mary Beth. Feminist thinker and author Phyllis Chesler took up Whitehead's cause and wrote in Sacred Bond, The Legacy of Baby M.: "Women who have never been allowed to talk back eventually identify with the aggressor and have no pity for a victim who reminds them of themselves." To which we add: Amen.

It is worth noting here that Mrs. Stern was not infertile but had multiple sclerosis, and was concerned about the possible physical implications of pregnancy. A colleague testified that his wife, with the same condition, had temporary paralysis during pregnancy. Incidentally, the contract between Whitehead and the Sterns is available on line. She was to be paid $10,000 for a live infant. It's really kinda awful to read, and certainly considers the baby as property.

While the Baby M case did uphold the surrogacy contract, the judgment was not laudatory about the arrangement, and the judge in the current case in New Jersey (what is it about New Jersey, is it something in the water?) quoted this in the current decision:

"The surrogacy contract," the Baby M court found, "is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and maternal fitness."

Citing that passage, Judge Schultz wrote, "Would it really make any difference if the word 'gestational' was substituted for the word 'surrogacy' in the above quotation? I think not."

All this reminds us once again why we do not like surrogacy pregnancies--with the woman's own eggs, or with another woman's eggs. No matter how you deconstruct the feelings involved, surrogacy contracts create babies on demand, often babies for profit. We ask, how different is the situation of a surrogate mother different from a first/birth mother who agrees to sign--or does sign--papers relinquishing her child but changes her mind hours, days, weeks later? Does the fact that the birth began with a surrogacy contract make the experience different?

We think not. Having given up a child of our own egg, we do think there may be an emotional difference between a purely gestational surrogate mother and a genetic mother, but we do not have the answers today, and nor are we even sure of our feelings.
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Now for a change of pace as surrogacy madness continues: In the "how-did-I-miss-this?" category comes the sentencing of an Ohio police chief, Barry D. Carpenter, for breaking into the home of the surrogate mother for Sarah Jessica Parker and Matthew Broderick. Carpenter, former chief of police of Martin's Ferry, and two other men, including another police chief from a neighboring town, Chad M. Dojack of Bridgeport, broke into the home of the woman and stole items they intended to sell to tabloid newspapers. :) Yes, that is me being amused.

Carpenter, who did the crime while on duty (you gotta admit, that took some chutzpah) was sentenced to 32 months, but the promise of early release is held out, Judge John Solovan of Blemont County Court, said to Carpenter if  "you accept responsibility and account for your actions and your crimes." Dojack's case is set for January. Charges against Dojack's father-in-law, who is the son of Bridgeport's mayor, who had appointed Dojack chief (ah, the beauty of small towns) were dropped. Parker and Broderick have twins. And Parker kept her Size Zero figure.

Happy New Year everyone!  I am trying to take a break from the blog and get to some other writing work, but the news just keeps on rolling along. --lorraine