I want to explore the idea from the last post a bit more. I’m going to focus on one side of the division I discussed the last time–the low-tech side. I think I called these DIY (which stands for “do it yourself.”) You might want to group these together because these will be instances of conception without necessary bureaucratic involvement.
I’d distinguish this from the high-tech forms of ART, which are essentially based around IVF. In those cases, people are necessarily engaged with quite a bit of medical bureaucracy at a minimum and so it is feasible to have some special rule.
I’m not committed to this idea, mind you. I’m just testing it out to see how it might look. And so the next step in that is to think about what the rule for the low-tech DIY side of things might be.
Actually, before I do that, perhaps I ought to be a bit more explicit about the actual array of things that fall in that category. It would include assisted insemination done at home as well as (and here is what is perhaps not obvious) “ordinary” conception by sexual intercourse. I’m wondering if I had obscured this point–which is a fairly important one–in my earlier discussions. I didn’t mean to, but as I didn’t point it out, perhaps it got lost.
So, to restate and be really clear–right now some (say the drafters of the UPA) would propose one rule for conception via sexual intercourse and a different rule for all forms of ART, including assisted insemination. I’m exploring an alternative–shifting that line so that home insemination is on the same side of the line as sexual intercourse. As I’ve just said, the advantage about this is that the cases that get the special rule are the high-tech ART cases. (It also means you do not have to draw a line dependent on how sperm reached its destination, but rather on where conception occurred, and the latter is going to be easier to establish.)
Okay, enough recap or I will really be going round in circles. Now to the rule that would apply to the low-tech cases. One possible rule–one that is pretty obvious–would be that the people who provide the genetic material are the parents. In particular, the source of the sperm is the father. Needless to say, I do not like that possible rule (I’ve discussed this a ton, and you can find a lot under “genetic link“) and I will say little more about it here.
The alternative, which I’ve also discussed at length, is to say that the source of the sperm is not necessarily a parent. Perhaps he is, perhaps he is not, but the status wouldn’t depend on his provision of sperm. This is obviously a much more radical position. You can find discussion of it from some time ago around here. (Notice that for the moment here I have not said what does make a person a parent, only what does not.)
I think what has made me think about all this at this particular time is that drawing the line as I’m describing does allow for a separate rule for the high-tech forms of ART. I’m not sure what that rule would be yet, and if after thought I came to the same rule, then there’s no need to draw the line. But at least it allows me to consider having a special rule for the IVF type procedures, which significantly include gestational surrogacy.