Originally Posted by riverscout
I can see your point if a case involved a surrogate who was also the genetic mother. However, I just don't think it would be that easy for a gestational surrogate to keep the baby, particularly if the intened mother was also the bio mother (in other words, no third party egg donor was used). Just because the state doesn't recognize any other woman other than the woman who gave birth as the mother doesn't mean that the state believes gestation supersedes genetics, but more likely that the state simply does not have legislation regarding surrogacy. Also, there could be case law, and if not, a judge still has the ability to set a precident. Does anyone know if there has ever been a case where a gestational surrogate was allowed by the courts to keep the baby rather than genetic parents? I did a google search, but I am not very good at that.
Yes, there have absolutely been cases... Baby M to start with. As others have pointed out, they have been highly publicized and are not the norm. However, it DOES happen. And the gestational surrgogate gets to keep the baby, end of story. It happened in my former homestate, where that fertility clinic is I referenced earlier. It made a huge splash, but in the end, the infertile couple lost their baby to the surrogate, though I think they were granted visitation rights.
What my point was, is that if I were a surrogate, I could see myself being one of those women who loses it at the end of the pregnancy and can't handle giving the baby up. I get attached very early on in pregnancy, and it would kill me to hand the baby over even if it wasn't genetically mine.
A lot of fertility clinics don't deal with surrogates because of all the legal issues involved, ranging from ethical issues (the "renting uteruses" and "exploiting the poor" and "we don't buy and sell humans" aspects already discussed in this thread) as well as the issue of not having a sure thing... that the surrogate could change her mind at the last minute and your client doesn't get her baby.
And yes, when you add to that having a baby that is not fully genetically of the intended/adoptive parents, it is even more complicated. Women whose eggs are bad can get a donor egg and their husband's sperm, or the surrogate's egg and their husband's sperm, or the surrogate's egg and donor sperm, or donor egg AND donor sperm, and then the idea is that the infertile couple will still get the baby in the end. But the surrogate decides not to give the baby up after all. What I was saying is I can completely see myself not wanting to do that. And even more so if this fairly common scenario were the case.