What’s the Difference, II

I’m taking up from yesterday’s post, since I was hardly finished.  Mostly I ended up discussing why looking for the differences matters to me.

Now that would be the difference between surrogacy and adoption, I’m thinking about just now.      And I think before I get to “what’s the difference” I need to do a really brief recap of “what’s the same?”   (It’s easy for me to imagine some readers going “huh?” at the “what’s the difference” question, as they can seem pretty different.)

In both surrogacy and adoption you have a pregnant woman who is going to give birth to a child, in both you have a person or a set of people who intend to be parents to that child, and in both the plan is that the woman who gives birth will turn the child over to the intending parents.   In both (I’m thinking here of open adoption) the intending parents can be involved during the pregnancy and in both, they may be giving the pregnant woman money (though we might articulate what the money is for in different ways.)   There’s a lot of similarity.  

Now the differences.   The difference in treatment I want to focus on is that in adoption, the woman who gives birth invariably has some time after birth to change her mind about the arrangement.   In surrogacy (at least what I have called bound surrogacy) she does not.   And my main question now is what difference justifies this different treatment.

Two contenders suggest themselves most obviously.  (There’s no reason why one must pick one or the other, either.  Could be the combination of both together.)    I’ll list them first, then discuss.

1.   The pregnant woman is genetically related to the child she will give birth to in an adoption situation; she is may not be genetically related to the child she will give birth to in surrogacy.

2.  The order in which things happen is different.   In adoption, the woman gets pregnant first and the intended parents agree to the adoption after that.    In surrogacy, the agreement comes first and then, pursuant to the agreement, the woman becomes pregnant.

I have to stop first and think about whether these things are always true.   Are these really the features that make surrogacy and adoption different?

I am not sure 1 is really does distinguish them.    Consider the following admittedly unlikely hypothetical.   (Even though it seems unlikely, reading and writing in this field persuades me it could actually happen someday, some where.)

Suppose W thinks she wants to have a child but is incapable of producing eggs.   She purchases an egg and sperm and has the resulting pre-embryo implanted in her own uterus.  She is now pregnant with a child to whom she has no genetic relationship.   Now suppose she decides that she doesn’t want to be a parent after all.   She could clearly find some people who did want to raise a child and offer to let them have the child.   We would surely view this as an adoption rather than surrogacy, wouldn’t we?  We’d consider her to be the mother at birth and we’d give her a little bit of time to change her mind.

This tells me that knowing whether there is a genetic relationship between pregnant woman and soon-to-be child does not tell me whether it is surrogacy or adoption.   It could be either.

I don’t think this means that reason 1 has nothing to do with it.  But I do think it negates the possibility that genetic relationship, or lack thereof, explains it all.

I’ll tackle reason 2 in the next post.   But one closing note.   Often in surrogacy one of the intended parents is genetically related to the child.   (Male intended parent donates sperm which is mixed with egg of donor or female intended parent.)   But generally this isn’t so important to how we view surrogacy.   So I’m not focused on that now.

4 responses to “What’s the Difference, II

  1. Personally, I don’t spend much time thinking about it. “It” being why a surrogate should or should not be allowed to change her mind and keep the baby. Well, gestational carrier surrogate. For me, it comes down to ethics but that is largly because I have the advantage of not having to think ‘court of law’. I would find it extremely wrong of a woman to agree to a couple to get pregnant for them and, generally, with a great deal of their help genetically, financially and even emotionally in many cases, only to turn around and say “Ha ha suckers, thanks for the baby.”

    Find a better way to get pregnant than to swindle a couple of troubled infertiles that have already been through enough in their lives.

  2. Hmmm regarding the point that by seeing if the birth-mother is genetically related to the baby, you cannot necessarily tell if it’s an adoption or surrogacy situation because she could have sought out anonymous sperm and egg donors, I think if you figure out whose genetic material is being used, you could in fact figure it out if it is an adoption or surrogacy.

    If the sperm and egg came from 2 people who donated to a bank of some sort perhaps for the money and voluntarily consented that random people out in the world somewhere could raise their future child, that would tend to suggest an adoption sort of situation.

    On the other hand, if the fetus was genetically related to two people who only shared their sperm and egg with the express agreement that they would be allowed to raise their own child, that would tend to strongly suggest it was a surrogate parent sort of situation. Shouldn’t people be allowed to choose whether or not other people raise a baby that is genetically theirs? It may not explain everything, but perhaps it should be a factor that is strongly considered when reaching a decision.

    It seems interesting that the fact that sometimes an intended parent is genetically related to a surrogate child is generally not important to how we view surrogacy, since that seems like the strongest factor in deciding whether or not people should generally, as a matter of public policy, be allowed to contractually bind themselves into giving birth to children they must later give up. After all, if people should be allowed to contract to ensure that they are allowed to raise their own genetic child (given birth to by a surrogate), it isn’t much of a stretch then to say that the freedom to contract should also extend to bind a surrogate mother to give up a child that the intended parents aren’t related to.

    That’s just my opinion, but it seems to me that, when discussing a controversial and perhaps unstable area of law, it might be wise not to unduly narrow the focus to factors that have been considered in the past or are generally considered most important (perhaps because of stare decisis and without further justification for doing so), especially if we at least agree to the possibility that the courts have not yet considered all legitimate factors. Are we trying to merely guess what a court would probably decide currently, or are we trying to consider everything and come to a satisfactory conclusion of what the courts should decide? I would find the latter revelation much more interesting.

  3. I agree that trying to guess what a court should decide is not really the question. I’d rather focus (and have tried to focus) on how the law should analyze the various basis for parentage. I don’t mean to narrow things too quickly, but sometimes I do set things aside so I can proceed one step at a time. Maybe I need to go back to reconsider the significance of a genetic connection with the IPs.

  4. Thanks for the response! Although, to clarify my earlier rambling with updated modesty, you only need to reconsider the significance of genetic connection with the IPs if I raised some issue you had not thought of, which is probably unlikely since you live and breathe this stuff. Even so, it’s fun to participate in your blog!

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