[Once again, this is a continuation of a thread started several posts ago--you can leaf back through the "what's the difference" posts and get caught up to speed.]
I’ve not been terribly satisfied with that last post, so I want to take another run at it with a slightly different hypo.
Suppose a heterosexual couple wishes to have/raise a child but is unable to do so “naturally.” They locate a man who strongly resembles the man (S) in the couple and a woman (E) who strongly resembles the woman in the couple.
Now one possibility is that they could approach S and ask if he is willing to be a sperm donor. If he is, they could pay him to donate sperm. Similarly, they could approach E and ask her if she would be willing to be an egg donor. If she is, they could also pay her to donate eggs.
Let’s pause here to consider. In many states, as in the newest version of the Uniform Parentage Act, sperm and egg donors are not parents. I generally do not find this to be problematic. (That’s because I discount the importance of DNA as the sine qua non of parenthood.) In any event, though I know that not everyone thinks it is okay, I think the idea of selling sperm and eggs is not nearly as controversial as surrogacy.
Now once the original couple uses the sperm to fertilize the eggs and produce pre-embryos, they have three options.
A. Implant embryos in the woman from the heterosexual couple;
B. Implant embryos in a third woman–the surrogate;
C. Implant embryos in E, the egg donor.
If they do A, then we do not see this as surrogacy. I’m fairly confident that the woman who gave birth would be the mother of the child. (The status of the man in the couple might actually depend on whether they are married.) It’s worth spending a moment to wonder about why she is readily seen as the mother. Is it because she bought the sperm and eggs and thereby acquired the right to parent? Is it because she was pregnant and gave birth? Is it because there was some intention that she be the mother at some critical moment in time?
Option B, above, gives you surrogacy, which is the main topic I’m trying to focus on. Is the woman who gives birth the mother? Is the woman who bought the materials the mother? Note that no one in the picture is genetically related to the child in this hypothetical.
Option C is an interesting puzzle. The woman who gives birth will also be genetically related to the child. What’s the legal significance of the fact the eggs were purchased by someone else and that conception occurred in vitro?
Compare each of these–and particularly C–to a different course of action. Suppose instead of buying sperm and egg the original heterosexual offered to pay the S and E exactly the same amount each to have sex. (I’m not entirely sure if there is a prostitution problem here, but if there is, I’d like to set that aside.) And then suppose the couple paid E exactly the same amount as the surrogate above. If, pursuant to this plan, a child is eventually born I think there is no question that S and E are parents. If the original couple is to become parents to this child it will have to be via adoption.
I’m making my own head spin here, so it really is time to stop and reconsider. I think that what I am looking at/wondering about is that it seems that the location of conception (in vitro or in E’s body) seems to matter. Perhaps most clearly it matters to S’s status as a parent. I guess I knew this–I’ve commented on it in the past. But it’s very odd, really, isn’t it?
I think next I want to go look more carefully at the option labelled B, above, and see what the claims are. Another day.
2 responses so far ↓
Raegen // December 19, 2008 at 8:46 am |
From a policy standpoint, the location of conception is exactly what matters. I recently had a fascinating talk with an ART attorney in DC, who is Catholic, about this, and about the doctrinal reasons behind the church’s position on assisted reproduction. Not being Catholic, I can’t do it justice. But it was really interesting.
julieshapiro // December 20, 2008 at 5:22 pm |
The point Raegen raises is an excellent one, adding a different dimension. I have been thinking/writing about the difference between ART (really assisted insemination, though) and conception via intercourse. The difference there is how the particular sperm reaches its goal. But instead you could look at ART (this time IVF) and everything else and the difference is WHERE the sperm reaches its goal.
There’s no reason, in the abstract, that you could have different sets of rules for cases divided along these lines. So, one rule for assisted insemination and a different rule where pregnancy results from sex (is that unassisted insemination, perhaps). Or, as Raegen’s post suggests, one rule for IVF (conception in a petri dish) and a different rule for conception inside a woman’s body.
The questions that remain are what would justify having different rules for these different situations. Simply observing the difference does not justify different treatment. That’s something I’ll come back to another time.