This is not the most recent story–I’m actually not sure what the date on it is–but it serves the purpose of illustrating what I’ve often used as a hypothetical. The local news coverage of it is here.
I want to use it here for two things–first, just to try to work through how one might think of it and second, and this is tied to my recent thread, to consider how the answer to that first question might change the rest of the way we think about parenthood. One point I’ve been trying to make (and I’m afraid I haven’t been terribly clear about it) is that it is often easier to just resolve each case as it comes, without attending to the overall picture you are creating, or the ways in which individual ad hoc decisions might pull at the rest of the fabric of law. It makes me wonder whether trying to have an overarching coherent framework that addresses all cases is really something we should aim for. I generally think it is, but the questions I want to ask are why and at what price.
All well and good, but for starters, I’ll try just the first point–thinking about the case in isolation. Here’s the basic scenario. X wants to have a child. X purchases eggs and sperm from anonymous donors. I guess I’ll call them E (the egg donor) and S (the sperm donor). The egg and sperm are mixed to create pre-embryos. At least one of these is implanted in the womb of Y, who is hired by X to be a surrogate mother. In time, a baby is born. Who is (or who are?) the babies parents?
It seems impossible that it could be E or S. (But if it is one, it should also be the other. Their positions are indistinguishable, as far as I can tell, save based on gender and in this instance I don’t see how gender can matter.) E and S are anonymous donors, so no one knows who they are. No one has intended or expected them to be the parents. Indeed, they would not have donated if they were going to be treated as a parent of any child produced. So though E and S have the genetic relationship with the child, which under ordinary circumstance (no assisted reproduction) might well make them parents, here they are not.)
That’s the first place where you might see how a rule in a specific case can have spill over effect into the rest of the world. We generally accept that sperm donors and egg donors are not parents, driven by arguments like the one I’ve offered above and cases like the one described here. But once we do that here, it seems it must inevitably undermine the significance of genetic linkage in the non-ART setting. After all, why would the genetic linkage be so important in one setting and so easily discarded in the other? Mind you, I don’t think this is a bad thing. I just think it happens.
So let’s assume we’ve eliminated E and S. That leaves X and Y as possible parents. Now you could just say “I’ll take them both” on the theory that then the child has two parents, a traditional number. Of course, that’s the last thing in the world X and Y intended. Perhaps that shouldn’t matter though.
Before doing that, it’s worth examining the claims X and Y offer. Y was pregnant and gave birth. There’s some legal support for considering that as a basis of parenthood. In a non-ART case you’ll never find pregnancy without genetic relationship, so you cannot be sure that the old idea that “a woman who gives birth is a mother” is based on the pregnancy/birth thing. But if we’ve eliminated the genetic basis of parentage, then that is pretty much what would be left.
X has arranged the whole thing–caused it to happen. But for the actions of X, there would be no child. X has presumably paid a lot of money and can produce a series of agreements–contracts–that support X’s claim to be a parent.
I’m not surprised the court in Ohio chose Y over X. I think Y’s claim fits far more comfortably with existing law. The question is what are the implications for the rest of the picture if X wins.