The case of McKenna West has reignited the controversy over the practice and regulation of surrogacy in the United States. West, a nurse and single mother of two in Alaska, agreed to be a gestational mother for an embryo provided by a couple in California. Each party signed a contract using an agency called Worldwide Surrogacy, a limited liability company based in Connecticut.
At 20 weeks of gestation, the fetus was noted to have a heart abnormality that would require multiple surgeries after birth to prevent death. The California couple insisted that West have an abortion, as was stipulated to be their right under the contract.
West refused, saying that if the couple did not want the baby, her brother and sister-in-law would adopt him, and the West family would provide for his care. The California couple, unable to pressure West into an abortion, sought to assert legal control of the child before birth so that they could legally make the decision whether the baby would have the surgery — or not.
West became concerned that this move was designed to prevent the baby from having the life-saving surgery, given the couple’s previous demand to have the fetus aborted. Because Alaska does not have the medical facilities to provide the needed initial surgery for the baby once delivered, West traveled to Texas, a “heartbeat” state that prohibits abortion, and delivered the baby Aug. 12.
Texas ensured that the baby had the first surgery, but West was denied even the right to hold him, and the California couple has taken physical custody of the child. West is suing the agency and the California couple is suing West.
The case is only the latest in a string of heart-wrenching cases concerning surrogacy. Most nations have banned the practice as a gross violation of the human rights of the child and of the gestational mother. The United States, along with Ukraine and Mexico, now has the dubious honor of being one of the few countries in which the practice is pretty much unregulated. In some states, a pet-grooming salon has more regulation than a surrogacy agency. In terms of background checks and vetting, for example, the commissioning parents often undergo none at all. Only their money matters.
This case has shone a light on the dubious legal shenanigans that go on behind the scenes. If you read the actual contract, you will discover things that will shock; the contract demands a form of indentured servitude on West. It stipulates from how far she can travel away from home without permission (75 miles), whether she can work at night (no), what she can eat (no Brie or mousse). It stipulates she is prohibited from breastfeeding the forthcoming child, asserts her name will never appear on the birth certificate, and insists she will never try to contact the child, among other things.
And, of course, that she will abort the fetus if the couple insists, and be paid $2,000 extra for such termination. The contract also stipulates that the commissioning couple are not responsible financially for any harm coming to West from the surrogacy, though they offer to pay her $10,000 if she has to undergo a hysterectomy.
If you read West’s suit, there are more hijinks to uncover. The lawyer that supposedly represented her interests actually did not, according to West’s suit. Unbeknownst to West, her lawyer was paid by the commissioning parents and worked for the agency’s lawyer, deferring to her in all matters. Revisions to the contract that West instructed her lawyer to effect were not included, according to the lawsuit. West’s refusal to terminate was opposed by her own lawyer, who employed a process server to serve her with a letter to that effect. There were clear conflicts of interest at work about which West was ignorant. In short, West never really enjoyed legal representation at all; all was controlled by the surrogacy agency and the commissioning parents.
Some might say, well, this is a case for strong regulation. Ensure gestational mothers have independent legal representation; ensure vetting of commissioning parents; guarantee healthcare for harms to the gestational mother, and so forth. I disagree. These cases show that the harm simply cannot be eliminated. Surrogacy should be completely banned, as it is in most civilized nations across the globe.
Consider that the commissioning couple, in their lawsuit against West, assert her behavior has been “malicious, outrageous.” West is accused, in essence, of saving the child’s life and breaking a completely immoral and legally unenforceable contract to do so. In the U.S., you cannot force a woman to undergo an abortion, period. Need that even be said?
West, in her letter to the agency informing them of her decision, stated, “After careful thought, I have decided that I cannot terminate this pregnancy. This baby is in my body, and I care for him very much. I’m concerned that I will not be able to live with myself if I went through with terminating this precious baby who has now become a part of me.”
But understand that sentiment makes West a failure as a gestational mother. She felt the connection between herself and the child growing inside her body; she cared for him. She wanted to save his life. She really was a mother to him.
And that is the crux of the matter. While fatherhood is determined by gametes alone, motherhood is not. Motherhood is a mix of gametes and intense female labor and connection that nothing else can replicate. Cells from West’s body will be present in that boy forever, and cells from his body will be present in her body for the rest of hers. They are kin. West is first kin to that baby boy, and the navel mark in his flesh proves it.
Surrogacy cannot erase a mother, and so the practice is based on the most inhumane of lies. The baby may have been deprived of his mother at first breath, denied her breast milk, denied even any knowledge of her existence, but West is still a mother to him and always will be. That is why, in the U.K., a gestational mother is considered the legal mother of the child, and the commissioning individuals must adopt the child from her.
King Solomon knew who the real mother was in the case brought before him — the woman who was willing to give the child up in order to save his life. That case was open and shut in a way that eerily foresees this one. West was no failure; she was magnificent. Ban surrogacy now.