Family Law, Health Care / Medicine, Kids

Is Surrogacy Adultery? It May Be In At Least One Country.

This debate cuts to the core of how we think about surrogacy, and is a familiar discourse throughout the world. 

By  
on

Before we get into this week’s column — and per mandatory journalism Code Rule 1.0 — I want to discuss the Kardashians.

A Kardashian/West/Jenner Congrats x 3. There’s so much negative news this week (both in the world of assisted reproduction law and the world at large), so let’s start with good news. Per my favorite news source, PerezHilton.com, Kim Kardashian West and Kanye West’s surrogacy pregnancy is confirmed, and going well. In addition to their pregnancy, Kim’s half-sister Kylie Jenner and maybe half-sister Khloe Kardashian are also rumored to be expecting. Exciting times for their family!

Unfortunately, now we’ll move on to less happy news.

California Triplets Update. #Sad. You may recall the recent case of the California surrogate Melissa Cook and the single, deaf intended father from Georgia (known as “C.M.”). Well, C.M.’s name has now been publicly revealed to be a guy named Chester Shannon Moore, Jr.

Moore, who entered into an agreement with Cook to carry his children, asked Cook to “reduce” the triplet pregnancy to twins — in other words, to abort one of the children. Cook refused and, upon the birth of the babies, sought parental rights to the baby, called Baby C, as well as the other two babies, Babies A and B. Cook lost in California, and all three of the kids—none aborted—returned to Georgia with Moore.

Cook appealed to the Supreme Court. Now, a year and a half after the birth, an affidavit was filed by Moore’s sister, Melinda Burnett, alleging that the triplets are living in “deplorable” conditions.  The affidavit states that Moore has allegedly “been forcing the three young children (now 18 months old) to eat some of their food off of the dirty floor in the house. The floors are rarely vacuumed.” (Is that not okay? Asking for a friend.)

The allegations further describe the living conditions of Moore and the triplets residing in the basement of Moore’s disabled parents.  The house is allegedly thick with smoke, and a heroin-addicted nephew frequently stays at the house. Moore’s sister further states that the children have had to be taken to the hospital for severe diaper rashes, due to Chester Moore’s poor care. Most bizarrely, the affidavit claims that Moore murdered some of his pets after he became tired of them.

Sponsored

But the Supreme Court was not swayed to hear the case, denying cert on Monday, October 2, 2017.

If these allegations are true, the situation is obviously extremely concerning and sad, and Georgia Child Protective Services should step in. But even if so, it doesn’t legally entitle the surrogate to obtain custody over the children.

Prison Sentences To Come For Surrogacy. Well, the bright side is that Cook and Moore, as well as the Kardashian Wests, are not imprisoned for 3-5 years for their involvement in a surrogacy arrangement. That may be the situation soon for Turkish citizens if a new proposed law is enacted. The new proposed amendment to article 282/1 of the Turkish Civil Code would fully criminalize surrogacy. And not just for direct participants, but also for those that provide “mediation,” “assistance,” “encouragement,” or “advertisement” for surrogacy.

Is Surrogacy Adultery? Supporters of the proposed legal change, such as renowned (at least in Turkey) televangelist Nihat Hatipoglu, argue that a surrogacy ban is in line with mainstream Sunni religious interpretations of Islam in Turkey. This is due to the interpretation that the transference of reproductive cells of one person into another (who is not that person’s spouse) “contains elements of” adultery.

Unsurprisingly, the proposed law also bans the use of donor sperm, eggs, or embryos.  (I could see the adultery argument more if it was a “traditional surrogacy,” in which the surrogate is also genetically related to the child. But the more common surrogacy arrangement uses the medical procedure of transferring an embryo to the gestational surrogate’s uterus.)

Sponsored

This interpretation of Islamic law is not the only point of view.  Other Turkish scholars, such as Ruaim Muaygil, are quick to distinguish traditional surrogacy from gestational surrogacy, and to argue that “surrogacy is not only consistent with Sunni Islamic teachings, but is also both ethically justified and medically necessary.”

This debate cuts to the core of how we think about surrogacy, and is a familiar discourse throughout the world.  We’ll see which side of the argument carries the day. Hopefully Turkey doesn’t join the ranks of countries that have criminalized surrogacy.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

Topics

, , , , , , , , , ,