I’m now focusing on a closer examination of how commercial surrogacy manages the question of parental status. Commercial surrogacy is really only viable if you can guarantee the paying parties that he/she/they will be the parents of a child in the end. To that end, the doctrine of the “intended parent” has been developed.
My point last time was that intention alone is not enough. You must have intention (mutual intention of the surrogate and the contracting individuals) at a critical time. The critical time is before the pregnancy begins. Once a woman is pregnant, her intention to give over the child cannot be the basis of a binding contract.
But even this combination of intention and timing isn’t generally enough. Suppose A and B agree that in exchange for payment, A will become pregnant and give birth to a child and that the B will be the sole parent of the child. If A becomes pregnant by ordinary means, or even by donor insemination, she is on the path to parenthood. As soon as the child is born, she’ll be a mother. Even though she may not be a parent yet, she cannot sell her prospective parental rights. That’s just another form of selling a child. (And indeed, this is what happened in Baby M–Mary Beth Whitehead was the mother of a child and hence, the agreement to give the child up was void as against public policy. (This may not be the result everywhere in the world, but I think it is generally true for the US.)
In order to make commercial surrogacy reliable, you need mutual intent at that critical time and you need to do something to prevent the surrogate from becoming a mother. If she never becomes a mother, then we can view the agreement as an agreement for services. So the critical question is what makes the woman who is going to give birth a mother?
If you think, as I do, that it is the pregnancy itself, then the status is unavoidable. Which means, I think, that it is difficult to construct an argument that commercial surrogacy is not the equivalent of baby selling. But in many states and countries, commercial surrogacy is not seen that way. In those situations, the critical move is to use an egg that does not come from the surrogate. It might come from a woman who is an intended parent or it might come from an egg donor. (Either typically works, though it may be useful to return to think about them separately.)
So thinking about surrogacy casts us back to thinking about the importance of genetic linkage. But it isn’t the presence of the genetic link that is critical here so much as its absence. There’s no need for the intended parents to have a genetic link with the child. For the surrogate, however, the absence of a genetic link is crucial. In the absence of a genetic link, she will not become a mother and so the proper intent at the proper time can lead to an enforceable surrogacy contract.
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I’m not sure that the timing is relevant at all. First, why is the relevant “critical event” conception? If the woman is preemptively waiving her parental rights, wouldn’t the critical moment be the point at which she becomes a mother? I’m not sure if that point would be at some time during pregnancy, or at birth, but we can agree that it is not at the moment of coneption.
Second, if you are going to include “lack of genetic relationship” as a necessary factor to make a surrogacy contract enforceable, then I think the timing requirement is basically moot. How often does a woman become pregnant with a child that she has no genetic relationship with, when she hasn’t previously entered into a surrogacy contract?
Imagine a woman who is “implanted ” (what would be the technical term?) with a fetus that has been conceived with another woman’s egg, before any discussion of a surrogacy contract has taken place. Would this woman be any less capable of preemptively waiving her parental rights than a woman who signed the surrogacy contract prior to becoming pregnant?
What about the human being in the transaction who doesn’t waive any rights, sign any contracts, or deny any genetic relationship?
You can legally divorce the mother from the child, but you can’t divorce the child from the mother. Every adoptee becomes a bigamist of sorts, married to two sets of parents.
Happy to hear from you again, YF.
My identification of conception as the critical moment may lack theoretical grounding. But it reflects prevailing law, I think. Once the woman is pregnant, she is on the path to parenthood. The only way she doesn’t become a parent is if the pregnancy ends (via abortion or miscarriage). If a living child is born, she’s the mother.
I think about this hypo (which is really the one YF offers, and which I might move up to the text in a new post.) Suppose a woman becomes pregnant via IVF and the implanted embryo was created using donor eggs and donor sperm. Can she then announce that she’s willing to sell the soon to result child to the highest bidder on the open market? I think not. I think most courts would say that amounts to selling a baby, and hence, is not permitted.
I suppose I am guessing here–YF is right that it isn’t likely to happen. But I think most would view a pregnant woman selling parental rights to the child she is soon to bear as the moral equivalent of selling a child, whether she has a genetic relationship to the developing embryo or not. Only if the deal is made before she is pregnant can we avoid the baby-selling problem.
One other quick thought, in response to VHM. I don’t think being a parent is very much like being marriage. That being the case, I don’t really understand either the concept of a parent divorcing a child or the child divorcing a parent.
It’s a fun topic, I’ve been enjoying the coverage.