Family Law

Is A 68-Year-Old Arranging The Birth Of Her Deceased Son’s Child By Surrogacy Legal?

While much ink is spilled pondering the differences in culture and law, much of it boils down to fundamental societal beliefs.

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Frozen Storage At Sperm BankMedical progress and technological advancement are amazing things. With the assistance of donor reproductive material, as well as the help of a surrogate or gestational carrier, we have overcome prior limitations to reproduction. But with great power also comes great responsibility. So we often ask whether we are pushing the limits too far, as a matter of medical ethics. There is a danger, though, of applying reflexive norms to new situations. In other words, what can seem “weird” or strange to people today, can become the new normal tomorrow.

In March 2023, reporters across the world announced the birth of a child to the 68-year-old Spanish actress Ana Obregón, by a gestational surrogate in the United States. The news was met with considerable criticism, given 1) her use of a surrogate, which was perfectly legal in the United States but illegal in Spain, and 2) Obregón’s age. However, the real twist was yet to come. A few weeks after initial reports of the new baby’s arrival, more details were revealed. The child was not, in fact, Obregón’s daughter, but actually her granddaughter, conceived with sperm from Obregón’s late son, Aless Lequoio, and presumably donor eggs. Lequoio died in 2020 at the age of 27 from cancer. Obregón explained in an interview to Hola! magazine that having children was her son’s dying wish.

Obregón’s granddaughter’s conception story is unique, but are the concerns of detractors justified? Let’s take the objections one by one.

Surrogacy in general. First, Obregón is from a country where surrogacy is illegal. Spain, like most Western European countries, does not permit surrogacy arrangements, even when no compensation changes hands. Not all European countries have the same policy — England, for instance, permits altruistic gestational surrogacy, where the gestational carrier receives no compensation. And Eastern European countries, like Ukraine and Russia, permit both gestational surrogacy and compensation of the surrogate, but only for intended parents who are heterosexual married couples.

The United States, of course, has numerous state-by-state legal regimes when it comes to surrogacy. Most U.S. states have surrogacy-supportive laws that are open to all families, including same-sex couples and single parents. While much ink is spilled pondering the differences in culture and law, much of it boils down to fundamental societal beliefs.

In Europe and much of the world, policymakers have articulated a fear of the exploitation of women in the context of surrogacy. The risk, they see, is in economically coercing women in poor economic situations to risk their health and lives for those with more means. The U.S., by contrast, has a more capitalist culture that relies primarily on individual responsibility. The result is more supportive laws that give a woman the freedom to make the risk assessment for herself, and to freely, without interference from the government, act as a surrogate.

The varying attitudes become more entrenched, as public policy mirrors cultural norms.

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Age. Next up, Obregón’s age: 68. Some states have a minimum age for a surrogate or intended parent to enter into a surrogacy arrangement, such as the age of 21 in Colorado; but no state has a maximum age prescribed by law. There are guidelines, however, such as those set by the American Society for Reproductive Medicine (ASRM).

By way of an Ethics Committee Opinion, ASRM recommends that “because of concerns related to the high-risk nature of pregnancy, as well as longevity, treatment of women over the age of 55 should generally be discouraged.” The opinion explains that the reasoning is not just about a health risk to a woman carrying a pregnancy at an older age, but concerns of the death of a parent while the child is still young.

“Parental loss is one of the most stressful life events for children or adolescents. Although a 50-year-old Caucasian woman in the U.S. has a life-expectancy of over 80 years, on average, it is more likely that a woman who starts her family at 50 rather than at 30 will die before her child reaches adulthood.” On the other hand, the Ethics Committee Opinion points out that “very few studies have been published about parenting in women who conceived and delivered after natural menopause. The limited data, however, do not support concerns that older parents have reduced parenting capacity.” In fact, “the greater financial and emotional stability some older parents offer may be an advantage to children.” Score one for older parents.

And, of course, this is without getting into the misogynistic judgment of older women as parents while men have children at an older age all the time. To applause. BTW, congrats to Robert De Niro, 79, on the recent birth of his seventh child.

Posthumous conception. Among the criticisms in this situation, one of the most common is focused on Obregón’s use of her deceased son’s sperm to conceive her granddaughter. Most states in the United States do not have specific legal prohibition preventing the use of a person’s sperm or eggs after their death. However, as a practice, it’s often difficult for survivors to show sufficient consent from the deceased to make a medical provider comfortable moving forward. At least one court — a New York case involving a West Point cadet named Peter Zhu — granted the parents the right to have their son’s sperm retrieved while he was on life support. The court relied on evidence of the son’s statements during his lifetime that he wished to have children.

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I have written on posthumous conception before and on my confession of evolving beliefs. Despite writing a lengthy law review article in 2015 stressing the importance of explicit consent of the deceased before using their gametes, I have more recently come to believe that in many cases, perhaps too much emphasis is placed on such explicit consent. The survivors that conceive children using the reproductive material of a deceased loved one tend to be of healthy economic means and to have children that come into the world very much wanted, loved, and supported. We could only wish for that same level of love and support for every child.

I get it. Obregón’s family structure is unusual. But I, for one, support her. Congratulations to Ana and baby Ana. Wishing you both a bright future.

 

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