What’s the Difference, III

This picks up (not surprisingly) from What’s the Difference, II which is a a couple days back.   That post, of course, will send you back to the original What’s the Difference? To make sense of this one, you’ll need to have read the other two.

This is about the difference between adoption (open adoption, specifically) and surrogacy.  And I’m up to examining my proposed difference 2 from last time.   To refresh your memory, difference 2 has to to with the order in which events occur.   Specifically, in an open adoption the pregnancy occurs first and the potential adoptive parents come along afterwords.  Obviously, the agreement isn’t made until after they parties meet.   So the pregnancy precedes the agreement.   In surrogacy the agreement precedes the pregnancy.

Of course, it isn’t simply a question of order–in one instance things happen first A then B and in the other, first B then A.   The more important point is that in adoption the pregnancy exists before the adoption agreement and hence, isn’t caused by the agreement.   In surrogacy, the pregnancy wouldn’t exist but for the agreement.  

This does seem to be a significant difference.   The eventual child born to a surrogate is born only because of the agreement between the surrogate and the IP (or IPs).   The eventual child born to a woman participating in an open adoption would be born anyway

But though it seems significant, I’m having a hard time explaining to myself exactly why this makes a difference in who we think the parents of a child are.   Again, I consider a hypothetical that might seem unlikely, but is still useful to me.

Suppose I want to raise a child but I cannot become pregnant.   I go and find a young healthy woman and I say “if you go out and get pregnant for me, I’ll raise the child and I’ll give you ten thousand dollars.”   She obliges, by going out and having sex with someone.  Is that a surrogacy or an adoption arrangement?   It has many of the hallmarks of surrogacy, including the critical order noted above.   But, though I speak only for myself, it seems more like adoption.   In particular, if the  pregnant woman, after giving birth, changed her mind and said she wanted to keep the child, I think I would expect most courts to identify her as the mother of the child and let her keep the child.

Of course, the obvious reason to say she’s a mother and distinguish her from a surrogate is the genetic link between the pregnant woman and the child that is born.    In the case of gestational surrogacy there is no such link.  That was  possible difference 1, you may recall, and is the subject of the previous post.  The fact that this is the difference that springs to mind suggests to me that timing isn’t as importance as genetics.  (There is, by the way, a critical side point to make here.   Whether or not she is considered to be the mother, the man she went out and had sex with is surely the father.)

So far, I’m not sure I’ve made much progress in understanding difference number 2.   The next thing to try is to understand why it should matter.   In other words, I want to consider whether there is a good argument that the  fact that the IP(s) caused the child to exist should make them parents.

I must say, this is now seeming more rather than less murky to me, so I will stop for today.

2 responses to “What’s the Difference, III

  1. In your hypo, it would certainly be an adoption because the birth father would need to relinquish parental rights, or have rights terminated by the court with appropriate due process protection. I think that’s more than a side point.

    You aren’t going to like this, but I think the answer is that the IPs are treated as parents because that’s what they and the surrogate have bargained and contracted for. The parties to a surrogacy have entered into the arrangement with specific intent, which is set forth in the surrogacy contract. The parties act accordingly (for example, by consenting to, undergoing, and paying for medical procedures in furtherance of the surrogacy, planning to parent and financially support the child, purchasing health and life insurance for the carrier, and by compensating her if state law permits).

    The carrier isn’t treated as the mother because that is part of what she has bargained for – not to be the mother. I want her to be free to make that bargain and to hold the IPs to it. There is tremendous risk to the carrier if the contract is not enforceable.

  2. I do see the value in allowing the surrogate (or carrier, as Raegen calls her) making the bargain she wants to make. And in general I’m all for autonomy. But this is not a bargain we allow pregnant women to make–or at least not in the same way. That is, a pregnant woman cannot enter into an agreement that says “I’m not the mother” in the same way a not-yet pregnant woman can. Why not? Doesn’t this take us back to the original question? Why do we treat the two women differently.

    I didn’t really mean to dismiss the man in the hypo so blithely, either. He is clearly the father and hence, has rights too. I just didn’t want to get too distracted by that problem right here. Sorry about that.

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