The Wrong Embryo, II: An Afterthought

This picks up from yesterday’s post–read that first.  

Consider the position of the hospital when Carolyn Savage gives birth.   The hospital is obliged to prepare a certificate of live birth.   Suppose there is a blank for “mother” on the birth certificate.  What name should go in that blank?    

I am fairly sure that the ordinary practice is to fill in the name of the woman who just gave birth.   If  the Savages want to put some other name on the certificate (like the name of the woman whose egg was used and who will parent the child), should the hospital let them do that?   Should it require them to produce some sort of document instructing it (the hospital) to do so or should it just take any name they offered?   

I’m thinking that women who give birth probably can’t just offer up any name to substitute for their own on the certificate.   That would lead to many problems.    This makes me think that some sort of action–legal action–would need to be taken to instruct the hospital to enter a different name on the certificate.  

I’ve written about birth certificates a number of times before, generally either in the context of adoption or same-sex parenting.  (And then usually lesbian parents.)   Some of the comments on the earlier post suggested that birth certificates need to tell the truth about what really happened.    If you take that view, what does belong on the birth certificate that will eventually be issued in this case?

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10 responses to “The Wrong Embryo, II: An Afterthought

  1. If she’s in Ohio, they can have genetic testing done (on the adults before-hand, the baby when it’s born) and the woman delivering can have the birth certificate written to reflect the truth/parentage of the child (assuming that the embryos are genetically related to the people that had them frozen- if there were any donors involved that might complicate the matter). Expedited genetic testing (maternity/paternity) is not cheap, but ensures the baby’s birth certificate is correct, and there’s no first birth certificate, and then the “correct” one later. Of course, that depends on what county she gives birth in as well, since Ohio has no cut and dry surrogacy laws (I’m assuming this could be treated as a surrogacy, considering the circumstances). Summit, Cuyahoga, Wood, and Franklin I know are pretty lenient on getting the birth certificate right the first time.

    • It’s interesting that it might depend on where she gave birth even within Ohio. It would certainly vary state to state. I posted a link to the WA statutes that make it clear that the woman giving birth would be the mother in the comments to the preceeding post.

      It seems a little odd to me that a court would consider this as a surrogacy agreement. Certainly it would, in retrospect, have operated that way. One woman gives birth as a surrogate for another. But I’ve always imagined that surrogacy agreements had to be entered into before conception occurred. I guess maybe it wouldn’t come up except in a case like this and, thankfully, they are not common.

  2. Unfortunately, I know of more than a few surrogacy contracts that have been signed and made official after conception, so if they can get an agreement together before the delivery happens, I think there’s a really good chance.

  3. Why not make the legal document honest and list everyone involved in the conception? It seems to me that a legal document ought to avoid any deception, especially since the interests of the person born are paramount. We are all eventually autonomous human beings, not just subjects of our parents for our whole lives. We deserve to know the truth. A birth certificate belongs to the person born, not something for the convenience of the custodial parents. I take the view that the consequences of deception are too complicated to justify putting false informaton on any document. It is a simple matter of doing what ought to be considered justice for the person born, especially in non-coital conceptions.

    In this age of growing accuracy of genetic testing, the truth will come out eventually, placing the parents in the position of losing the child/adult/s trust and earning his/her anger.

    • That’s an interesting question. I’m not sure who all is encompassed in that phrase “involved in.” I take it some people would not acknowledge the role that Carolyn Savage has played in the life of the child that will be born and delivered to some other couple. If we’re planning to list everyone “involved” would that include her? And what would she be listed as?

      More generally, isn’t it possible that the child will eventually want to contact her (or in a more conventional situation, the surrogate) or are we all sure that no child would ever want that? The overseas surrogacy stuff that’s around now seems to make this almost impossible.

      One thing about the birth certificate. I’m not sure it’s correct to say that it belongs to the person born, although perhaps what you mean is that is should be that way.

      Birth certificates are state-created records. If you have a certified copy of the record, then I suppose you can say that copy belongs to you. But it’s just a certified copy of a record that belongs, I think, to the state.

      Birth certificates are used by different entities for different purposes. The immigration folks at the border want birth certificates to show that the kids are travelling with people who are legally entitled to take them out of the country. That means if you have adopted your child you need a copy of the new birth certificate that has your name on it. The immigration folks are not quite so happy if you present them with a stack of court documents to the same effect.

      It’s easy to say we need to change all that and create a new set of certificates for different purposes. But you’d have to work carefully through it to figure out what they would be.

  4. The BC does (or ought) to belong to the individual, whether the BVS keeps the original or not. I needed to have my copy to obtain a passport so in that sense all the information that ought to be on that document should reflect the reality of my parentage, which, for me as a person conceived through anonymous sperm, it does not.

    I feel that Carolyn should be listed as the legal mother as well as the gestational surrogate. Her relinquishment should be considered a formal adoption and legally recorded as such. Ironically then, the original genetic mother would also be the new legal adoptive mother as well. The Savages are noble to do this and should be compensated by the clinic for the personal injury of having to bear another’s child as well as for the costs of carrying the child and all the medical costs. In all fairness, her embryos (however I can’t see these as property since that is repugnant to the dignity of the child) ought to be carried by a surrogate arranged by the clinic at their expense. It would be poetic justice if the original genetic mother would offer herself as the surrogate. In that case, I feel the advantage to both would be an emotional bonding between the two families and a unique kind of kinship between the two resulting children. I also believe that the children would be interested in their gestational mothers. Anyone involved with adoption knows that adopted people usually have a strong desire to reunite with their birth parents, regardless of the circumstances of the relinquishment.

    In too many cases I know about, surrogacy has led to some quite painful moral decisions. It is too risky for my tastes and is fraught with potential ethical dilemmas, often involving emotional coercion of the surrogate and even exploitation when the intended parents place undue burdens on the surrogate. There have too many cases where wealthy infertile couples have hired an economically oppressed woman to be either a traditional (genetic mother) or gestational surrogate. Since some clinics disclaim any ethical accountability and act as if they are merely carrying out a client’s wishes, this one area of ART cries out for strict governmental scrutiny.

    • I won’t engage with your comments on surrogacy for the moment, though of course there is much to say. But about birth certificates.

      Perhaps it would be helpful to think about the different purposes for which documentation is required and then consider what documents ought to be created.

      For instance, if a child applies for a passport, the state department wants consents from all legal parents. (This is to ensure that one parent is not planning to take the child abroad without the other’s knowledge.) .

      Now if a child has been adopted, the original parents shouldn’t need to consent to the issuance of a passport–a court has legally terminated their parental rights. So purely this perspective, I think they’re names should not appear on whatever goes to the state department.

      Of course, what the state department currently requires is a certified copy of the birth certificate. So at least for now, leaving the original parents names on the birth certificate as parents will create havoc.

      Of course, it doesn’t have to be this way, and that is what I meant to suggest at the beginning. Perhaps we ought to go back to square one and consider what documents are needed for what purposes. It might end up being a bit more complicated, because now one document (the birth certificate) does a lot of work. But it might solve some of hte problems you raise.

  5. How on earth can a hospital issue a certificate of live birth to anyone other than the patient they actually witnessed giving birth???? All hospital certificates should only include the birthing mother, and no one else. This includes a paid surrogate. As a healthcare provider, If I wasn’t there, didn’t see it, than I don’t sign a legal document that says I did.

    However, the law should allow emendations to the birth certificate that would be submitted directly to the department of vital records.

    • All I can say is that there are clearly differences of opinions about this. For some of the folks who’ve been writing comments on my blog, the only names that should appear on the certificate are those of the people genetically related to the child.

      In the end, it all depends on what a birth certificate is supposed to be and say. If it is supposed to reveal legal parentage, then under current law in some states, names other than those of the woman who give birth will appear. If it is supposed to record a historical fact of who gave birth, then I think you’re right.

      I’ve discussed this elsewhere on the blog.

  6. As a health care provider, the legal parentage is NONE OF MY BUSINESS, and way out of my area of expertise. All I can tell you is what I witness. Let the legal folks make the emendations.

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