Related Topics

It’s curious to me that I seem to have backed into this topic (see yesterday’s post), which is really much the same as the place I started months ago.

What I mean is this.   The universal I started with yesterday is the desire for certainty with regard to becoming a parent.   Very likely even people who have not been and do not wish to be parents can see this.  Becoming a parent, no matter how you get there, if fraught with anxiety.   Uncertainty about any factor–will the baby be healthy, will the adoption be completed, will the surrogate change her mind–simply magnifies the range of anxiety.  It stands to reason that prospective parents using surrogates would prefer what I’ve called binding surrogacy.   For the same reason, I would assume that prospective adoptive parents would prefer that a woman giving birth not be given a chance to change her mind after the birth of the child.

I think this observation is important.   In both instances the prospective parents can make a strong argument about their need for certainty.   In both instances, there are surely individuals who might not use the device in question (be it surrogacy or adoption) because of their inability to tolerate uncertainty.    That’s important to consider in both instances.   And I’m not sure why we’d treat the two instances differently. In other words, if we say to prospective adoptive parents, “you must live with the uncertainty because the woman who gives birth will have the right to change her mind”, why would we not say the same thing to the prospective parents by surrogacy?   (I do see an answer someone might offer, but I’ll just go by that for now, until someone raises it in the comments or I come back to it.)

More generally, what this illustrates is my desire to devise a set of uniform rules that apply across the range of circumstances parents encounter.  And this is what I mean by “where I started.”  I’ve wondered about whether there should be uniform rules for a long time.  Uniform rules about who is a parent, I mean.

The rules of parentage are not, as it happens, particularly uniform.  They vary state to state.   And within states, they vary between circumstances.  Thus, there’s a set of rules for married women.  (Husband is father.)  There’s a set of rules for unmarried women.  (Generally goes to genetic link.)   And there’s a set of rules for those using assisted reproductive technology (ART) (donor is not parent.)  Never mind that these are sometimes all set forth in a grand piece of legislation called (ironically enough) the Uniform Parentage Act.   (It’s really not a silly name–it is meant to ensure uniformity state to state, because the hope is that all states will enact versions of this same act.  It just hasn’t quite worked out that way.  Yet.)

Uniform rules have various appeal.   For one thing, it’s a bit more likely people will know and understand the law if the law is the same, state to state, situation to situation.   And this is an area where perhaps it would be good if people did understand the law.

But I’m coming to think there’s an even better reason for uniformity–because there isn’t a good enough reason for treating people differently and one of the core values of our system is that we treat likes alike.

More on this tomorrow.