To recap quickly, Carolyn Savage and her husband Sean had donated their own genetic material to create some embryos in order to use IVF. After the birth of one child, the remaining embryos were frozen. Last winter they went back to the clinic to use some of those frozen embryos in the hopes of having another child.
Carolyn Savage did get pregnant but it turned out that the clinic had mistakenly used embryos of another couple, Paul and Shannon Morell. Now as it happens, this time it seems it will work out as well as it possibly could–the couples are in contact and the Savages have agreed to turn the baby over to the Morells once it is born. The key thing, to me, is that the couples have come to an agreement.
But here’s a thing that leapt out at me in today’s news. The Savages live in Ohio. The clinic is not in Ohio and the Savages aren’t saying any more about where it is. The Morells live in Michigan.
Now let’s leave reality and enter the land of the hypothetical. Suppose the Savages and the Morells did not agree about how to resolve the situation. Someone would sue and I can see several possible locations for the suit–Ohio, Michigan and where the clinic is are the main ones. But beyond that, Carolyn Savage could decide to give birth in any state and might then bring suit to claim parentage there.
What state’s law would control? This matters because state law is, if you will, all over the map on questions of how to resolve who is a parent in a case like this. So pick your state, you can probably pick your result. For example, several people have posted and said that in Ohio, Shannon Morell would be the child’s legal mother. But I’m fairly confident that in Washington, Carolyn Savage would be recognized.
The root of the problem is the variation among state law. In this regard the problem is akin to that faced by lesbian and gay parents, who live in a similarly variable legal environment. As you travel from state to state your parental status, as a matter of law, anyway, can turn on and off. An awful lot turns on chance factors, like where you happen to live or where litigation happens to arise. (I’ve discussed this as a problem of portability, as in asking whether your status as a parent is portable.)
You would think that uniformity would be so obviously preferable that it wouldn’t be hard to get there. But surrogacy/ART and lesbian/gay parenting are deeply divisive issues. States reach different legal results because they reflect different value choices. That makes it harder for everyone to agree on one standard.
Perhaps over time there will be convergence on a set of principles that makes enough sense to enough people, but I don’t think that will happen quickly. In the meantime, it’s important for people whose parental rights might vary to take the legal steps they can to effectively secure their status. Often that means adopting a child, even though in your state you are already recognized as a parent. Although even adoptive parents can meet some resistance as they travel state to state, it’s fairly clear to me that all states must recognize an adoption properly completed in any state.