Correspondence

Assisted Reproduction: Who is the Mother?

N Engl J Med 1999; 340:656-657February 25, 1999

Article

To the Editor:

I disagree with Annas about how best to identify the mother and father of a child born of a gestational (biologically unrelated) surrogate (Sept. 24 issue).1 People with firsthand knowledge about surrogacy know that it would nearly always be inimical to the best interests of a child to establish, whether through statute or case law, that the woman who gives birth to the child must be deemed the child's mother.

The Buzzanca case is atypical of gestational surrogacy because the child was not genetically related to either of its intended parents. My wife and I are currently involved in a surrogacy arrangement in which we are the genetic parents. Because of that involvement, we are aware of hundreds of surrogacy arrangements that culminate happily, by which I mean that they serve the purpose intended by all the parties, and most important, they bring into this world a child who is wanted — deeply and often desperately — by its parents.

When we established the surrogacy arrangement, my wife and I, the surrogate, and her husband signed a contract that, together with the ensuing correspondence between us, makes it abundantly clear that the child carried by the surrogate is our child. The surrogate would not want our child any more than we would want one of her children — or anyone would want anyone else's child, for that matter.

In the Buzzanca case, the California court established a child-centered principle that applies nicely to nearly all surrogacy situations: Society serves the best interests of children when it entrusts a child's care to the people who really want the child. In surrogacy, one or both of those people also happen to be the child's biologic parents. The surrogate in the Buzzanca case, like all but the tiniest fraction of surrogate mothers, had no interest at all in being the child's real mother.

The word surrogate means “substitute”; by definition, it is not the real thing. That is certainly true in the case of surrogate mothers and real parents. There are more than enough unwanted children in this world without society adding to the tally through misguided legislative fiat, at either the state or the federal level.

Alan Kronhaus, M.D.
201 Sierra Dr., Chapel Hill, NC 27514

1 References

1
Annas GJ. The shadowlands -- secrets, lies, and assisted reproduction. N Engl J Med 1998;339:935-939
Full Text | Web of Science | Medline

Author/Editor Response

Professor Annas replies:

To the Editor: With respect to establishing who should be considered a child's “real” mother, the problem of choosing between the gestational mother and genetic mother has been created by the process of in vitro fertilization followed by transfer of the embryo to a woman not genetically related to the embryo. Three basic legal rules are possible: retain the traditional rule that the woman who gives birth to the child is always the child's legal mother (the position adopted by the New York Task Force on Life and the Law),1 determine motherhood on the basis of the intention of the parties as established through a contract (Dr. Kronhaus's position), or recognize that the child has two mothers, a gestational one and a genetic one.

The main problem with the contract model is that it denies reality, even to the extent of claiming that gestation is not “biologic.” But without the biologic contribution of the gestational mother there would be no child: the embryo would remain an embryo. The child's entire body is biologically formed and nurtured by the gestational mother, and she is the only human being who has a relationship with the child before its birth. She is also the only human who will definitely be present at the birth of the child. From the child's perspective, the gestational mother must be considered the child's legal mother (with the right to care for the child resulting from her overwhelming contribution to its creation and with the responsibility for the child's welfare resulting from her relationship to the child as well as her physical presence). The gestational mother is not an inert incubator.

A contract-based rule would also lead to bizarre and socially unacceptable consequences for both mothers and children. For example, if the contracting couple died during the pregnancy, the contract rule would make the child, born of the gestational mother, an orphan. This is just one reason that, contrary to the assertion of Dr. Kronhaus, the court in the Buzzanca case concluded: “We still believe it is the Legislature . . . which is the more desirable forum for lawmaking” in the area of the new forms of reproductive technology.1,2 If we must choose between genetics and gestation in determining legal motherhood, gestation must prevail. Nonetheless, the ultimate social solution to the problem of separation of genetic and gestational motherhood brought about by in vitro fertilization must recognize that the child so conceived and gestated has two mothers, and neither should be treated as if she is not “real.”3

George J. Annas, J.D., M.P.H.
Boston University School of Public Health, Boston, MA 02118

3 References