Which Comes First?

While I’m stuck on the language front (see previous post) I figured I’d turn to something else I’ve been thinking about.

Some discussions of surrogacy begin with the question of whether we should allow surrogacy. I’m increasingly inclined to say that the answer to that, at least for me, depends on what exactly you mean by “surrogacy.” But that’s actually not the focus of what I want to write about here. For now let’s just assume you mean surrogacy where the woman who gives birth is legally compelled to surrender the child. (You can leap back to some older posts for some musing on different things “surrogacy” might mean.)

The point I want now is that however you answer that question, you are also answering a second, unarticulated question. That second question is “Should a woman who gives birth be recognized as a legal parent of the child she gives birth to?” If you say we should allow the form of binding surrogacy I describe, then you must also say she is not a mother. (That’s because, as I’ve remarked a number of times, we do not permit the purchase/sale of parental rights/children.) In other words, “yes” to surrogacy in this form necessarily requires “no” to the “is she a mother” question.

The reverse is not quite so clearly true, but it’s very likely. If you say that the binding form of surrogacy should not be permitted, it’s very likely that that is (at least in part) because you think the woman who gives birth should be recognized as a mother of the child. In other words, “no” to surrogacy in this form strongly suggests “yes” to the “is she a mother question.

You can also work this linkage the other way round. That is, you can start with the “Is the woman who gives birth a mother” question. If you answer that “yes” then I think you have to conclude that the binding form of surrogacy is impermissible. If you answer that questions “no” then you can conclude that the binding form of surrogacy is fine.

Ultimately I want to suggest that these are not two independent questions. “Is she a mother” is inextricably tied to “should binding surrogacy be permitted” and vice versa. The answer to one determines the answer to the other. (I probably should concede that this isn’t entirely true–you could say she is not a mother and prohibit binding surrogacy for other reasons. But you cannot say she is a mother and have binding surrogacy. Neither can you have binding surrogacy and say she is a mother.)

This means there is really only one question there. So which question should we try to ask/answer first?

The key thing for me here is one question has much broader implications than does the other. Deciding whether a woman who gives birth is necessarily a parent of the child she gives birth to will be more generally important that deciding whether some form of binding surrogacy is a good thing. Asking the surrogacy question first and having that determine the answer to the question of the woman’s status as a parent seems to me a bit like having the tail wag the dog.

Now to be clear, I do not think the question “is she a mother” is an easy one to answer. Neither do I think the answer is scientifically attainable. As I’m using it here, “mother” or “parent” is simply a legal category. You can have a system where she is a mother/parent or you can have a system where she is not a mother/parent. Either is plausible. The choice must be made on a careful assessment of both values and consequences, I think.

I’m guessing I’m now come pretty well full circle. I haven’t gone back to look but my recollection is that the whole surrogacy discussion here started with the “is she a mother” question. Which I think was the right place to start.

Perhaps by tomorrow I’ll have an answer to my language problem.