Nearly 20 years after the sensational Baby M case in New Jersey, a Pennsylvania judge was confronted with another custody dispute involving a surrogate mother, and he had to wing it.
Judge Shad Connelly awarded custody of triplets to the woman who carried the babies. But he pleaded with lawmakers for some direction next time.
“It is additionally the court’s hope that the Legislature will address surrogacy matters in Pennsylvania to prevent cases like this one from appearing before the courts without statutory guidance,” the Erie County judge wrote in April.
In the aftermath of the Baby M case, in which the biological father eventually won custody of a little girl from surrogate mother Mary Beth Whitehead in 1987, 19 or so states passed laws regulating surrogacy. New Jersey banned surrogacy outright; some other states banned any arrangement in which a surrogate is paid.
But in many states, including Pennsylvania, there are still no laws governing surrogacy contracts, and judges must rely on their own interpretations of family law.
Best interests of the child
About 22,000 babies have been born through surrogacy in the United States since the mid-1970s, said Shirley Zager, who has worked with the Organization of Parents Through Surrogacy and started her own agency.
Surrogacy advocates say the Pennsylvania case was unusual — contracts are rarely challenged, and when they are, the biological parents who donate egg or sperm usually win.
In the Pennsylvania case, 29-year-old Danielle Bimber had agreed through Surrogate Mothers Inc. of Monrovia, Ind., to be a surrogate mother for a man identified in court records as J.F. She was implanted with donated eggs fertilized with his sperm and gave birth to triplets Nov. 19.
But when J.F. and his fiancee did not come to the hospital to take the babies home, Bimber took them and sought custody.
The judge said that with little precedent to follow, he had to act in what he believed to be the children’s best interest. He awarded custody to Bimber, saying J.F. had not shown sufficient interest in the children. J.F. has appealed.
The judge asked that the Legislature take a stand on whether surrogacy contracts are legal at all and how enforceable they should be, including whether the contract takes precedence over the perceived best interests of the child.
Need for laws
Some surrogacy advocates counsel a hands-off approach.
Steve Litz, director of Surrogate Mothers Inc., said he has arranged many surrogacies over 20 years and nothing like this has ever happened.
“If it’s not broken, don’t fix it,” said Lawrence Kalikow, a suburban Philadelphia lawyer who has dealt with surrogacy cases for 12 years and whose 8-year-old son was born using a surrogate.
But others say that the cases that do not go right demonstrate the need for laws.
“Pennsylvania doesn’t have a law and that’s the danger,” said Sherrie Smith, an administrator at the Center for Surrogate Parenting and Egg Donation Inc. The organization helped arrange the births last year of TV personality Joan Lunden’s twins through a surrogate.
The National Conference of Commissioners on Uniform State Laws, a Chicago group that helps legislatures draft bills, has offered two model laws for guidance to states considering surrogacy, said John McCabe, the group’s legal counsel. Only North Dakota and Virginia adopted the laws.
One of the model laws, written in 1988 after the Baby M case, allows surrogacy and enables surrogacy contracts to be enforced.
Jim Richardson, J.F.’s attorney, would not comment on the facts of the case. The attorney has specialized in family law for 25 years, and said this is the first surrogacy he has handled that had to go to litigation.
“I think it would be nice for all individuals to know exactly what the laws and the guidelines were,” Richardson said.