Surrogate motherhood is back in the news this week, proving once again that a subject this laden with emotions and complexities does not yield easy answers.
At issue this time around is the constitutionality of a Michigan law banning surrogate parenting for pay - the kind of contract that resulted in the heart-wrenching Baby M case. The law, which went into effect Sept. 1, imposed criminal penalities on those who arrange or engage in birth-for-pay contracts.This week, a Michigan circuit court judge ruled that the law is indeed constitutional. But he left open for further interpretation whether the law would apply to all surrogate contracts. He is expected to make a further ruling within 60 days.
Still up in the air, then, are the finer, crucial points. Are all surrogate mother contracts illegal or just those that require the mother to relinquish parental rights? If only the latter are banned, infertile couples would still be allowed to pay a woman for her services in bearing them a child by artificial insemination but would not be allowed to pay her anything extra. Under such an arrangement, the mother could later balk at giving up the child. Clearly, such a decision would not rule out future Baby M battles.
The confusion over Michigan's law comes just when the members of a Utah legislative task force are trying to wrestle with the same kinds of difficult questions. After several months of study, the task force is still trying to choose between two options - banning the practice of surrogate motherhood altogether in the state, or allowing it under rigid controls. One of those controls would be that careful psychological evaluation of all parties would be mandatory. Another would ban any financial compensation beyond actual medical expenses.
As this page noted in an editorial earlier this year when the Utah legislature was debating the issue, the state cannot afford to be wishy-washy. If the state does not come up with a law soon, it may find that the courts or Congress will make decisions Utah does not like. And if the state does not come up with a clear-cut law, it may find itself wading through the same legal quagmire that Michigan finds itself in right now. One of the issues that must be resolved is whether a contract can require a surrogate mother to give up parental rights after the child is born.
Utah's infertile couples, who find it increasingly hard to adopt a baby, deserve to know what their options are.