I suppose because it arose in NJ (which is right next to NY), the case I wrote about last time has attracted attention in both the New York Times and the Wall Street Journal. Both papers place the story in a larger context. The case is just one about surrogacy, while surrogacy itself is just one form of assisted reproduction, and assisted reproduction is just one way in which the formation and composition of families has changed in the last several decades.
Beyond that, both papers really make the same essential point: that the legal landscape in this area is bewildering–featuring a variety of legal approaches that often conflict or even a complete absence of law on some topics. All of this heightens the unpredictablity of law. It also gives some–those who are knowledgable and able to travel to a favorable state–the ability to successfully manipulate the outcome of a case, perhaps to the disadvantage of others.
It’s pretty hard to say that this is a desireable state of affairs. At the same time it is a fairly predictable outcome, given our commitment to local (as in state-by-state) determination of most family law questions. Different states have responded in different ways, some with court decisions and some through legislatures. They reflect different sets of concerns.
Of course, to some extent, the available technology has out-paced the law. Even as I write that, I wonder how true it might be. The main “technology” at issue is IVF, which isn’t that new. (It’s IVF that allows a woman to give birth to a child that is genetically unrelated to her.)
Taken together, the two news stories invite a broader consideration of the law surrounding legal parentage. There are three main contenders for test of choice. I’ve discussed them at great length in countless posts, but there’s nothing wrong with a tidy recapitulation.
- Intent. This fits most comfortably with ART technology, in that the parents of a child are the people who were intended to be the parents of the child, without regard to the genetic material used or the labor involved. Perhaps more than any other, however, this test raises the prospect of commodification of children, as intent is most typically expressed via contracts which often involve exchanges of money.
- Genetics. This is the easiest test to apply and ensures that each child will have two and only two parents–one male and one female. It’s probably the least accommodating to ART, although ART can certainly be used to create children genetically related to both parents. It’s most accommodating to traditional one man/one woman families.
- Function/Performance. This test is essentially backward looking and in that sense, is the potentially the most rooted in the actual experience of the child before the court. Under this approach the law would confirm reality. But of course, we might not agree about what it means to act as the parent of a child.
In a perfect world, or in a perfect case, everything lines up together so it makes no difference at all. The genetically related people intend to be parents and actually perform as parents. But if you look back through this blog what you’ll find is countless cases where things do not turn out neatly. A person intends to be a parent, but does not act the role. Or a person is biologically related, but doesn’t intend to parent. And so on.
In the end, the Times calls for greater recognition of the importance of intent while the WSJ calls simply for greater clarity. While the latter might seem less controversial than the former, I’m not sure that it is. The very uncertainty of law gives judges the ability to respond to the unexpected and unforeseen situations.
I think it’s useful to take a step back now and then and look at the bigger picture. But it doesn’t seem to get any easier.