Gay marriage and surrogacy: Purchasing children and eradicating society

The family courts have found themselves being asked to adjudicate the question of whether a homosexual couple who have bought a child from a surrogate mother can subsequently eradicate her from the child’s life.

The Daily Telegraph on 9 September reported the court case, heard at the Royal Courts of Justice, where a gay couple (known as “X” and “Y”) sought to break the commercial agreement with a surrogate mother, and were trying to ban her from seeing the biological son (known as “Z”) that she had sold to the couple.

The agreement they had entered into with her included the mother being able to see the child every six weeks. But they suddenly unilaterally broke that agreement, and on one occasion, even threatened to call the police when she turned up to the house for a prearranged visit.

 “X” and “Y” complained, describing the mother (“G”) as seeking a “destabilising relationship” with the child and accused her of making him “more clingy, unsettled and crying”.

On the one hand the local council supported the two “fathers” in their revocation of the parental order and attempt to formally adopt the child as step parents, which would have extinguished the mother’s legal connection with the child.

On the other side, a child psychologist submitted evidence that the two men were seeking an “erasure” of the mother. Indeed, in their evidence supporting their claim for adoption, “X” and “Y” said there was “no vacancy for a mother in their family”.

They also asserted to the court that seeing the mother again would “send a confusing and potentially harmful message to [the child] that his fathers are not enough and his family with them is incomplete or inadequate”.

The judge took into account the child’s wish to see the mother again, but attempted to impose a compromise: that the child should continue living with “X” and “Y”, while the mother should continue to have access to her son, with the judge advising the parties to try to repair their relationship.

Perhaps one should expect a family law court to attempt some form of reconciliatory compromise. It is a statutory expectation. But while it may be a jurisprudential requirement, it is a philosophical, psychological, political and social mess, full of ideological contradictions and incoherence; incapable of a compromise.

A number of elements offer surprise here: not least the absence of any recognition that in a hierarchy of human rights, those of a child, or a pre-born child, should come somewhere near the top.

It’s not hard to understand how two homosexual men should find themselves in a position where they found it pragmatically in their interests to attempt to eradicate not only the biological mother but also the category of motherhood from their domestic arrangements.

But it is hard to understand why there is no public voice expressive of a public conscience that is aware of not only how hard-wired, in evolutionary terms, is the relationship between mother and child, but also of how important it is that a child have access to both a masculine and a feminine parental figure to facilitate a balanced capacity to interrelate to both sexes in life. 

In terms of developmental psychology, such a capacity provides a foundation on which rests so much of emotional and human development.

It should be noted that this instance of surrogacy was one of the least-worst cases, which allowed for some maternal contact as a condition of surrogacy. There are very many cases where no allowance is ever made for a child to know, let alone have contact with, a biological parent.

RELATED: Surrogacy: Is there now nothing that the modern world won’t commoditise?

Beyond the facts of this particular case lie a series of principles that are of fundamental importance. What happens to society and children if you break the link of biological parenthood?

The reason that ethics proves to be so difficult is that it involves pitching different claims of virtue against each other.

The secular arguments in favour of same-sex marriage were originally mainly based on compassion for gay couples who felt hurt and excluded from what they thought ought to comprise “normality”; or felt ostracised because their “unions” were not affirmed by wider society.

The current move to the commodification of children through paid surrogacy is one of the most sinister and ethically problematic developments that followed the legislation permitting gay marriage. Strangely, to some of us, wider society seems to have little difficulty with the ethics of this.

There was almost no public outcry or concern.

The ethical principle that took the top place in the moral podium appears to be the right of a same-sex couple to the happiness of becoming a family by emulating commercially and artificially what a heterosexual family produced naturally.

But it’s not philosophically clear that anyone, or any couple, has a “right” to happiness, and what does seem extraordinary is that there seems no public concern for the rights of children in such cases to have access to both biological parents.

The least worst-case scenario is one in which the purchasing couple – of whom one might be a natural parent – at least allow the child to know who the other biological parent is.

But there always lurks a fear for the new parents that “nature” might reassert itself; that the child would come to long for or miss the absent biological parent; and this would overshadow the careful plans to frame the arrangements within the structured “nurture” of imposing the new biologically blended family.

Few people were aware when gay marriage was proposed that there would be other consequences contingent on the eradication of the heterosexual character.

One immediate one was the abolition of adultery as a ground of divorce since no one was able to provide a definition of what degree of sexual intimacy amongst lesbians – thereby between two women – constituted adultery, akin to the intimacy definition of penetration between a man and a woman.

But worse than writing adultery out of the legislation, which also has the function of expressing what is and is not socially acceptable, is the social re-engineering of the role of mother and father.

This has had the effect of placing post-Christian secularism in direct opposition to Christian faith and the Biblical message:

“In the image of God he created them; male and female he created them. God blessed them, and God said to them, ‘Be fruitful and multiply, and fill the earth’.”

This eradication began with mother and father being removed from birth certificates in a number of legislatures. It developed further with the introduction of the fluidity of gender as a new social construct. And now it is moving to the eradication of the rights of children to access, know and discover both biological parents.

What began as the commercialisation and commodification of children through the business of surrogacy turned out to be only the beginning of a process that would eradicate the value, integrity and identity of not only fatherhood and motherhood, but of marriage and of the family as we have always understood them.

If you remove the glue that holds everything and everyone together, it should be no surprise if things and people fall apart.

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Photo: A nurse feeds a surrogate-born baby in Kyiv, Ukraine, 20 March 2022. Nearly 20 surrogate-born babies, along with the surrogacy centre’s nursing staff, lived in a makeshift basement shelter after Russia’s invasion of Ukraine made it unsafe for the baby’s foreign ‘parents’ to retrieve them. Ukraine has been a popular location for international surrogacy. (Photo by Anastasia Vlasova/Getty Images.)

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