Is This Informal Surrogacy or Exploitation?

Posted by Pete Shanks October 2, 2012
Biopolitical Times
Close, Nguyen & McMurrey<br>arrive at the courthouse

A bizarre tragedy is playing out in Houston. Some commentators are calling it "a landmark case in motherhood" but it seems more like either a horrible misunderstanding or an appalling case of exploitation. Certainly, the dearth of public policy about surrogacy bears some of the responsibility.

Briefly, Cindy Close wanted to be a mother, and her platonic friend Marvin McMurrey wanted to be a father. By her account, McMurrey agreed to supply his sperm and to help raise the child. Because she was in her 40s, she was advised to use IVF and a third-party egg provider. She became pregnant with twins.

On the day of the (premature) birth in July, McMurrey informed the hospital that Close was a surrogate and the children were his. The babies now are living with his boyfriend, Phong Nguyen. Close sees them for two hours a day, Monday through Friday, but is not allowed to breastfeed them because of the terms of a restraining order McMurrey and Nguyen obtained. Both McMurrey and Close are suing: he claims she was merely a surrogate, and she is asking for custody and child support.

McMurrey is refusing to comment on the advice of his attorney, but Close is giving interviews. She insists that she did not even know that he was gay until the day the twins were born. (The two of them briefly dated about six years ago, but were never in a sexual relationship.) They had been discussing the possibility of having children together for five years, and she expected to be the primary parent. "If anything," she told the Houston Chronicle, "I thought he would lose interest because I didn't expect him to be a very involved father."

McMurrey did pay for the procedure. His family is rich, and he owns a car dealership; according to her [in this CNN video], he not only offered her the chance to be a stay-at-home mom, he suggested that she would be "financially securing" her own home. At his insistence, she did sign an affidavit declaring him the biological father, admitting that she is "not genetically related to the children" and "did not receive compensation" for her voluntary services.

This is not a typical surrogacy contract, if for no other reason than the timing: it was signed on July 3, and the children were born that some month. She didn't consider it to be a contract, and did not consider herself a surrogate. He, on the other hand, could not have made one because under Texas law the intended parents must be married, and gay marriage is not recognized.

Surrogacy and related procedures continue to raise complex emotional, ethical and legal issues around the world, especially when gay parents are involved. In the UK, a lesbian couple recently won a court battle with the surrogate mother and sperm donor, whose wife seems particularly upset. In Oakland, a lesbian is suing the FDA because she does not want her chosen sperm donor to follow the FDA's procedures. A gay sperm donor in Britain has won visitation rights for the child a lesbian couple are raising. Since McMurrey and Nguyen live in Texas, if they want to raise a child to whom at least one of them is genetically related, they have significant roadblocks to overcome.

The courtroom battle between Close and McMurrey seems to be heated. Her attorney, Grady Reiff, has called for his attorney, Ellen Yarrell, to be removed from the case, because of what he called an "evil" line of questioning about abortion. Yarrell suggested that it was relevant because Close had told Fox 26 News that McMurrey had destroyed her only chance at children, but this seems to be the interview mentioned and that's not what she said — she said that "after giving me my dream, he's taking it away."

If there is no signed contract, then as Andrew Vorzimer has pointed out, this is not technically a surrogate case. And yet the penumbra of surrogacy surrounds it. How else to explain the actions of the first judge who awarded temporary custody to the presumed biological father over the gestational mother?

The explanation can be found in one word: class. He is rich, and she is not. He is well-groomed, she is kind of frumpy. He is a businessman, she earns "a modest income in printing." Oh, and he was in court while she was not; possibly while she was in the hospital.

She certainly seems to have been naive; apparently he floated the idea of "moving to Oregon, along with his friend, Phong Nguyen" and she never suspected they were gay. But should her naivete be a justification for  exploitation, if that is indeed what occurred?

The court that awarded McMurrey temporary custody of the babies may have pictured him as a responsible parent, and Close as a surrogate who changed her mind. That court only heard his side of the story. She now has an attorney who seems like a strong advocate, and the judge expects to rule in November.

Update, Oct. 4:  Professor James W. Paulsen, a Texas family law expert, suggests that the legal process now unfolding is unusual, and may need to be restarted. He speculates that McMurrey may deliberately be dragging the proceedings out:

If Mr. McMurrey’s partner can hold on to the children for six months while things are tied up in court, under Texas law he can ask for custody on his own, even though he has no biological ties to the children. By then, the children may have bonded with him more than with their birth mother.

Previously on Biopolitical Times: