One of the big underlying quesion in a number of these parentage cases I’ve been discussing is what you can and cannot buy/sell. I raised this briefly a while ago, but I want to look at it more directly today.
I’ll start with a basic assumption: we generally agree that we should not buy and sell children. Indeed, there’s general and widespread revulsion at the idea of selling children. I recognize that it is not universal. But for the moment I’m not planning to engage with the argument about the rightness/wrongess of babyselling. I’m just going to go with this as an assumption.
To proceed we need to be clear about what it would mean to buy or sell a child. I think what it must mean is to buy and sell parental rights. Parents have all of these rights to control a child’s life (as well as obligations to care for the child) and it is that package of things that cannot be sold. So I will now restate my assumption–It’s generally agreed that you cannot buy and sell parental rights.
This simple proposition leads to lots of interesting places. For example, you cannot pay an parent placing her/his child for adoption, at least you cannot pay her/him for the parental rights themselves. Sure you can pay some “expenses,” but if you appear to be paying too much it becomes baby-selling. Which we do not think is OK.
Of course, you can pay adoption brokers, lawyers, social service people all the money you want. You can see that there is something very odd about this. All the intermediaries can (and generally will) be well paid for their time and effort. But the parent or parents giving up their rights cannot be paid. Even though their contribution to the deal is pretty clearly the most important. Odd though this may seem, I think it is the necessary and logical consequence of that initial assumption that it is wrong to buy/sell parental rights.
Moving a bit further afield, in conventional surrogacy the woman who gives birth to a child is also genetically related to that child. The combination of birth plus genetic link typically means the law recognizes her as a mother. Therefore, if she is paid in exchange for turning the child over to someone else, she is selling her parental rights. And you cannot do that. This is the rationale on which the New Jersey Supreme Court refused to uphold the bargain in Baby M.
By contrast, if it is okay to pay a woman for carrying and giving birth to a child she is not related to (this is what is called gestational surrogacy–and we know that in many places it is permitted–see here) than it must be because this woman is not a mother. We have to be able to say that she is selling services and not selling parental rights if we are to approve of gestational surrogacy.
There isn’t agreement about commercial surrogacy–whether it is okay or not. And I think this is in part rooted in our uncertainty about which people are (and are not) parents.
Last we can think about sperm donors and egg donors. Egg donation and sperm donation are not nearly as controversial as surrogacy. Large markets for sperm and eggs exist throughout the United States. You can run a quick web search to see that. And what does this tell us? I think it tells us that we’re comfortable saying that simply being the source of sperm or the source of eggs does not make a person a parent. When a man sells his sperm or a woman her eggs, we don’t think he or she is selling parental rights. If we thought they were we’d feel far more squeamish about the practice. (To put it the other way around, if a person is a parent simply by virtue of being the source of the sperm or the egg used to create a child, then it should follow that they cannot sell their sperm/eggs, because to do so amounts to selling their rights as a parent.)
All I’m looking for at this moment is a little logical consistency.
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