The Tangled Web of Surrogacy Issues : Needed: legislation to eliminate the potential for strife when good intentions go sour

The fall season has brought a new episode in a real-life courtroom soap opera. It involves a messy custody fight over a child born as a result of a surrogacy agreement. A Superior Court judge in Orange County gave joint custody of a 15-month-old girl to her biological father and a surrogate. The estranged wife, who helped rear the child for six months but who of course has no biological ties to her, is left with no visitation rights--and only the hope that such rights can eventually be won.

It is important to remember that this tangled web of legal and emotional issues results from the breakup of a marriage once full of good intentions. And while every surrogacy case presents its own set of facts, this one illustrates the potentially elevated status of a surrogate in custody proceedings.

In an earlier ruling, the judge found that the surrogate had parental rights. Now we have found out more about what that means; against the advice of court-appointed experts, the judge gave surrogate Elvira Jordan custody from 8 a.m. to 4 p.m. Monday through Friday, and the father, Robert Moschetta, got the child the rest of the time.

This ultimately disappointing outcome--no rights for the sponsoring mother, day-care-provider status for the surrogate, and certain confusion for child and father--point to the need for legislative guidance. Legislation that would better steer such arrangements in the future could help eliminate the potential for uncertainty and strife when all those good intentions go sour.

But whether or not such a legislative prescription is forthcoming, this case suggests that every couple contemplating a surrogacy contract had better be prepared to regard it very realistically--say, with the worst-case-scenario approach that newlyweds might bring to a prenuptial agreement.

This case also seems to suggest that a surrogate has the potential from the outset to become an important long-term player in a child’s upbringing. What’s most obvious in the battle for custody of Marissa Jordan Moschetta is the elevated status of a surrogate. The court recognized that a person whose womb was let for rent might also have a place at the table as a parent.

Rather than have the courts play referee when things go amiss, the government must better regulate this brave new world of surrogacy before all the shouting begins.