Enough of What’s the Difference?

I’m sorry to say that for the moment I feel I’ve come full circle without resolving much.   (I suppose when you come full circle you never make progress, do you?   I mean, by definition you are back where you started.)

So I started, now a few posts back, trying to figure out the reason for treating surrogacy (and really more specifically gestational surrogacy) and adoption differently.    I started by observing two differences, either of which might justify different treatment.

As a refresher if you do not want to go look (but really you should, because I did try to be more careful than I am about to be) one was the existence of a genetic link between the pregnancy woman and the eventual child in adoption.  You do not have such a link in the case of gestational surrogacy.  The second was the order in which events occur.  In surrogacy, the pregnancy occurs after (and as a result of) the agreement between the parties.  In adoption, the pregnancy occurs before (and therefore not as a result of) the agreement.

Now for the reasons discussed in the earlier posts, I’m not convinced that either of these possible differences is really persuasive.    Perhaps that is because the rationale lies in the confluence of the two–the fact that the pregnant woman is not genetically related AND that she is pregnant only because of the agreement.  

Then again, in an earlier comment, Raegen suggested the crucial difference might be the location of conception.   Gestational surrogacy uses IVF–conception in vitro as opposed to in utero.

I’m really somewhat inclined to leap at this one, if only to spare myself the confusion of trying to think through the other two.   At a minimum, it would give me a nice,  bright, and easy to draw  line.  Conception occurs one place or another and we probably will know which.    This is not like the situation where people might both be doing insemination and having sex and you don’t know which sperm got there how.  IVF is necessarily a pretty intense medical procedure.

Further, you could have one set of rules for IVF and another for conception in utero.   This is somewhat like what the Uniform Parentage Act does, but it is not identical.   (The UPA treats all ART (that’s assisted conception) in a way distinct from all non-assisted conception.  Which means that donor insemination falls on the IVF side of the line.)

It might well be workable.  I’ll give this some thought while I am travelling.  But I think it is still going to leave me with a “why” question.   Just because you can point to a difference does not, by itself, justify different treatment.   The difference you identify should somehow justify the different treatment.   So the other question to carry over is whether it does.