This is doubtless something I should have been more explicit about long ago. (I’ll try to link it back to some of the places I should have put it.) There are various forms of surrogacy and I need to be clear about which one I mean to be talking about.
Sometimes a woman become pregnant via donor insemination, with the intention of bearing the child for the sperm donor (and perhaps his partner/spouse as well.) The woman is genetically related to the child she gives birth to, as is the donor. This was the case in Baby M. There’s nothing particularly high-tech or modern about this form of surrogacy. (There are some biblical antecedents, as in the story of Hagar and Ishmael.) It is very likely that a court will recognize the woman who has both the genetic connection and gives birth to the child as a mother. Baby M, again. You might think of this as “regular” surrogacy. (In the UK it is called “straight surrogacy.“) This form of surrogacy is of only limited commercial interest.
The high-tech variant which generally opens the door to commercial possibilities is what is often called “gestational surrogacy.” (It is referred to as “host surrogacy” in the UK.) In gestational surrogacy a woman is impregnated via in vitro fertilization (IVF) using an embryo created from someone else’s egg. It might be the egg of an intending parent or it might be a donor egg. The critical point is that the woman will give birth to a child she does not have a genetic connection with. In a number of jurisdictions (including both US states and foreign countries) she will not be viewed as a parent to the child. This makes it possible for her to sign a binding contract in advance, irrevocably committing her to turn over the child to the intending parents. And that in turn makes commercial surrogacy (I’ll get to this in a moment) possible.
Now I’m sorry to say I have used the term “surrogacy” instead of distinguishing between gestational surrogacy and what I’ve called “regular” surrogacy. For the most part I’m only interested in gestational surrogacy. I don’t think “regular” surrogacy creates the same difficult issues around parental status. So generally, my comments up till now have been about gestational surrogacy arrangements.
There’s another distinction that is important here. I’ve used the term “commercial surrogacy” fairly frequently. By this I mean surrogacy (gestational surrogacy typically) where the surrogate is paid for her services and where there is often some sort of broker or agent who is engaged in a for-profit enterprise. Generally speaking, commercial surrogacy only works if the surrogate can be legally bound, in advance, to give over the child. And that means that typically commercial surrogacy is found only in those states where gestational surrogates are not considered to be mothers. Additionally, commercial surrogacy arrangements typically use gestational surrogacy.
A woman can also agree to serve as a surrogate for altruistic reasons rather than for a fee. Sometimes this is called compassionate surrogacy. Now it can be a little blurry because the expenses of a compassionate surrogate may be paid by the intending parents. And the expenses may look suspiciously high, which makes it seem a bit like commercial surrogacy. But I’ve noticed (not that I’ve really examined this systematically) that most of the places that only permit compassionate surrogacy (like the UK, for example) consider the woman giving birth to be the mother of the child. If that is the case, then the woman giving birth has the right (usually) to change her mind and keep the child.
Which all amounts to this–in the blog I am mostly thinking about gestational surrogacy, because gestational surrogacy is a prerequisite for commercial surrogacy.
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As long as you’re dealing with definitional terms, there is a meta-question i’ve been meaning to ask. In your discussion of when/how a person becomes a parent at birth, are you making a normative argument? Is this a public policy question of whom the law ought to recognize as a parent, or more of an objective description of whom, whether correctly or incorrectly, our society respects as a parent?
Ah, what a great question. And of course, law professor that I am, what I want to do first is challenge the framing of the question.
The last sentence offers me a dichotomous choice–public policy question of law vs. objective recognition of society. I think those two are quite intertwined. When the law recognizes a person as a parent it reinforces societal respect for the person as a parent. And when society recognizes a person as a parent, it presses the law to do so as well.
I’m not by any means saying there is a perfect correspondence. There are cases where the societal consensus (or at least that of a segment of society) may be that the law is “wrong” and there are cases where the law explicitly rejects social recognition as a determinant of legal decision-making. Still, I think you cannot separate these two processes.
Now having said all that, I don’t mean to completely evade the question. I think that, as a normative matter, the law should be as I suggest. I am trying to offer arguments of why this is “better.” But I’d also assert that my normative proposals are consistent with a lot of (though not all) societal beliefs about parents. I hope this seems sufficiently responsive. (And perhaps I’ll think about this a bit more and put up a clarifying post soon.)
The law student in me wants to throw my hands up and complain about evasive professors.
Perhaps if I phrase it this way; is the procedural posture of these essays that of a brief, or a memo?
Well, perhaps the most effective (persuasive) briefs give the appearance of being objective memos?
If you make me choose, I choose brief. But like any good lawyer, I am striving to be fair and measured in my presentation, even if I have a viewpoint to advance. And (perhaps here unlike a lawyer) there are things about which I could change my mind. (To paraphrase a colleague of mine, this is an ongoing process rather than a finished product.)