This really picks right up on yesterday’s post, so you’ll want to read that first I should think. I want to offer an example on the theory that this will help me (and perhaps readers, too) evaluate the point I’m trying to make.
Imagine X, a very wealthy and eccentric single man who wants a child. (Yes, I’ve been thinking about Michael Jackson and his children yet again. I know it’s all quite sensationalized, but this item about the third child, Blanket(?), caught my attention.) It seems to me he might have two options.
Plan A: X tries to adopt a child. As far as I know, no matter what state the person chose, this would involve some sort of home study that included evaluating X’s fitness as a parent. If X were sufficiently eccentric, this could be a problem.
If X complained that it were unfair that his qualifications as a potential adoptive parent were being examined, no one would take this complaint seriously. Everyone agrees that examining an prospective adoptive parent is reasonable.
(Here I must add my crucial caveat–X will get more traction if X claims that the standards used to evaluate him are unfair–say that he’s being discriminated against beause he is single. This is because while we agree that it is appropriate to evaluate prospective adoptive parents, we do not agree on what the standards to be used for that evaluation are.)
Plan B: X travels to an accomodating state–say California. He purchases sperm from a sperm donor and eggs from an egg donor. He pays a lab to combine sperm and egg and produce a pre-embryo. He hires a surrogate and has the pre-embryo transferred into her womb. With appropriate legal action in place, he will be the father (and only parent) of the resulting child when it is born. (Please note that this is a hypothetical. I have no idea whether Michael Jackson used his own sperm or that of a donor. The report I linked to said it was his own but donor sperm is better for this example.)
If X uses Plan B, no one will evalute his fitness for parenthood. As long as he has the money and the lawyers lined up, he will become a parent. That’s true even if it is quite clear that he would not qualify as an adoptive parent. (My assumption here is there will always be some fertility clinic willing to provide services where the money is there. See, e.g. Nadya Suleman.)
More interestingly to me, for the moment, is that any proposal to screen people before allowing them to access ART would be extremely controversial. Not only will many people (me included) be very concerned about the sorts of restrictions on access that might be put in place, the whole idea of restricting access to this technology will be controversial.
On the pragmatic side, I worry about regulating ART because access to it is critical to many lesbian and gay couples and single women who wish to be parents. The major controversies over adoption access right now focus on denying adoption to unmarried couples and/or lesbians and gay men specifically. Were we to open a discussion of regulating ART, there’s reason to expect that the brunt of proposed regulations would follow the same course.
But that is, as I said, a pragmatic concern. What I’m wondering now is whether there is a principled reason why X becomes a parent so easily under Plan B while under Plan A the outcome is not so clear. I wonder if it is because we see Plan A as involving a child and so the assertion of state interest in children is easy, while Plan B is seen to involve your right to buy some services or perhaps have access to (medical) technology. And if that is why we treat them so differently, I wonder if it is a good enough reason.