Parents and The Right To Change Your Mind

My last post was about a surrogacy arrangment gone badly wrong.   A woman who had agreed to serve as a surrogate changed her mind, which lead to a struggle between her and the (unmarried) woman she’d made the agreement with.    At the very end I cited some statistics that show that it’s quite infrequent for a woman whose agreed to be a surrogate to change her mind.    (This may be surprising, but I think that is because the instances where she does change her mind often engender eye-catching litigation.)    

The same statistics show that  the people commissioning the surrogacy (the intended parents, they are sometimes called) more frequently change their minds than does the surrogate.   I will confess that I’ve given very little thought to how to deal with cases where it is the commissioning individual or couple who wants to undo the deal.    And this leads me to think more broadly about the question of when you get to change your mind in matters of parentage.  This has to do with far more than surrogacy. 

I think I should probably begin this by addressing what is among the most inflammatory issues that fall into this category:  I believe a woman who is pregnant has the right to decide whether to end the pregnancy.   I’d rather not get into a major discussion of this point here and now, though, but it seems to me important to state this up front

Once a person has established herself or himself as a parent, I think we generally accept the idea that she/he does not just get to walk away.   Indeed, I think we’ve made this behavior of a crime (child neglect or abandonment).   You can give up the child for adoption, you can agree to the termination of parental rights, but you don’t have the freedom to just walk away anymore. 

There’s a couple of places I’ve written about in the past where I think you can see this.   Remember the Nebraska law that allowed people to drop their kids off at an emergency room?   That law that was hastily changed, but it was an expansion of a more common law (sometimes called a safe haven law) that is designed to enable panicked and overwhelmed new parents, often teenagers, a way to step away from parenthood without endangering their children.    

With this in mind, I suppose I’d offer these scenarios in mind, I’ll offer this as a general rule:  Once you are a parent, you cannot simply walk away from a child.    It might be worth noting the corresponding corollary:  If you are not a parent, you can simply walk away from a child.   (Since we’ve talked a good deal about terminology recently, I want to note that I am using 
“parent” unmodified to suggest that the statements are true for legal parents and for social parents.)

I don’t mean to suggest that you have to accept my rules.   I just offer them because it seems to me that something like this might help me to be consistent and come up with results I find acceptable.

To return to surrogacy–I suppose there are two things I might say here.  First off, I’m inclined to think that no one is a parent until a child is born.   (That’s back to the controversial statement I started with about abortion.)   Even if I didn’t hold that view, I’m certainly not willing to say that the intended parents become parents by virtue of the agreement between them and the surrogate.   So indeed, I think I have to say they can walk away. 

I do not mean to say that it is a good thing for them to do.   Perhaps the contract should contain some sort of damages payable in the event they do this.   But I think for the sake of consistency I have to say that it is permissible for them to walk away–to change their minds. 

Which leads me to something else I’ve been meaning to toss out here.   In the UK the HFEA collects data about the use of ART.  (This is something that is not systematically done.)  Earlier this month, they released some figures about the incidence of abortion following IVF.   It looks to be about 1%.  There’s some press coverage of it here that provides a bit more context.  It’s also worth reading the HFEA press release.  

I confess to being quite surprised by this statistic.   In fairness, it seems to me that we don’t know exactly what’s going on here:  the actual number of women electing abortion is small (52 in the 1/2 of 2008 they have stats for, 97 in 2007;  some number of the abortions are reductions in the number of embryos a woman is carrying and this seems to me to be a somewhat different thing than deciding that you do not want to be a parent after all; of the remainder, some must be instances where there are medical issues that arise after the pregnancy begins.    But realistically, there must also be some instances (the HFEA says “very few”) where people have just changed their minds.    Given what I’ve just said, I think I have to support the entitlement of people to do that, though I don’t think I have to be happy about it.

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34 responses to “Parents and The Right To Change Your Mind

  1. Interesting blog post as usual Julie. In your scenario here, I am not sure if the surrogacy was just a woman carrying another couples embryo or she was actually donating an egg (which makes her genetically related to the child)? To me, that makes a difference. Does just carrying an embryo to term, even if not genetically related to the child, give the birthing mother parental rights?

    Regarding the commissioning couple walking away – if they are genetically related to the child born, it seems to me that they would have to voluntarily relinquish their parental rights so that the child could be adopted. Again, much depends on how the law views the birthing mother in these situations. I would think very few commissioning couples would back out given the large investment in the whole surrogacy process. Still things happen….a breakup, death, or just a change in mind.

    I do agree that people can and do walk away but not without some kind of consequences and when it comes to children, generally there are lifelong ones involving more than just one person.

    • Some people (and some jurisdictions) distinguish between surrogates who are genetically related to the fetus and those that are not–the latter are then called “gestational surrogates.” Not everyone (and not every court) does. You can read about one such case here: https://julieshapiro.wordpress.com/2010/02/09/surrogacy-in-nj-playing-catch-up/

      It seems to me that if genetics is the determinate of parenthood (which it is not for me), then you would say that the gestational surrogate is not a parent and that the commissioning parents (assuming biological relationship) are going to be parents. But that leaves open the question of when they become parents. Are they parents before surrogate gives birth? If they are, then perhaps you can and should think in terms of terminating parental rights.

      • No I’d say they are expectant parents until the child is born, parents when the child is born just as if her embryo had remained in her body and she delivered her baby on her own. I think as an expectant parent she does what she thinks is best and finds a woman who can help her unborn child grow into a child that is ready for the world and ready to be given over to its parents.

  2. Elizabeth Marquardt

    Just an anecdote, I heard secondhand of counselors who spoke of patients who had aborted pregnancies achieved through egg donation because they felt they were carrying an alien, or something, inside them. I offer this as just a very small thought, not saying I have any big conclusions from it, but it’s what came to my mind when I heard about the UK abortion-after-IVF story (and of course only some IVF involves egg donation, and of course it appears that most women are thrilled to have achieved pregnancy — all caveats fully stated up front.)

    • Interesting comment, Elizabeth. I’ve heard the same said of pregnancies naturally conceived where the child is unwanted.

      I suspect that most of the terminations are for medical reasons. I was shocked to read that almost 90% of women in Canada who are carrying a fetus with downs syndrome terminate the pregnancy. Like Julie, I fully support a woman’s right to choose, but this made me very uncomfortable. Down Syndrom advocacy and support groups referred to it as eugenics and I don’t think they’re wrong. They’re concerned that we might see the elimination from society (at least in the West) of a whole group of people.

      Sorry, a bit off topic but thought it was worth mentioning!

    • Some women do experience that feeling of alien occupation during pregnancy. Anyone have statistics on how frequently that occurs? I would guess it is more common in the case of unplanned/unwanted pregnancies, but it might well occur even in the case of planned pregnancies. Be interesting to know. I do think we’re looking at a quite small number here.

      • Me. Right here. I did. I hated being pregnant. I did not really want to become a mother I thought I was too young and not ready. I was married and 33 at the time. I did not want to give up my size 3 figure or stop being sexy and I resented the growing little alien in my body it was terrible I felt so guilty and awfle and thought I was a terrible person I could not understand how I could be so shallow and did not know where my maternal instinct was. I carried my son to term. He died the day he was born. We had a priest come to the hospital and baptize him before he died. We had a funeral. I cried and cried. I felt like I was punished for not having been overjoyed at being pregnant. I mean I HATED being pregnant and resented it stealing my body from me so I felt like I was getting what I deserved for being such a selfish spoiled shallow little ungrateful brat. He had the tiniest little coffin. It sucked.
        I got pregnant again right away because I could not bear another day without a baby in my life. Even though I still hated being pregnant hated my body and was not looking forward to being a mother, I was looking forward to getting her out of my body and on her way to being a person that would grow into an adult that I could talk to. The maternal instinct did not kick in when she was born she looked like an alien. The desire to have a maternal instinct is what keeps me going. I want to want to play with her, I want to want to give her good memories, I try really hard every day to spend time with her and be good to her. Being an attentive mother is hard for me but I REALLY want to be one I REALLY want to give her good memories and make her feel loved. I am her mother by default. I’m quite sure that there are many women who desperately want children who would be appalled at my shallowness and ungratefulness, I’m quite sure they would be better mothers to her than I am. But I am her mother, I’ll try to do a good job even if it does not come naturally. In the end only she will be able to say if I was a good mother or not. I struggled with the idea that I got maternity leave for my son, after all he was dead. He died the day he was born, I thought I did not count as a mother. But he was born they said and that makes you a mother. Once your unborn child is born your a mother so you qualify for leave. I said ok – but it hardly seems like I deserve it I could not even keep him alive long enough to bring home. (I have thrombofilia I had a clot in my placenta) His name was Sam. My daughter is Ruby.

  3. Elizabeth Marquardt

    My understanding is that the rates of terminations of diagnosed Down Syndrome pregnancies
    is about 90 percent in the US too. The angle of “wanting-a-child-but-not-*this*-child” troubles me greatly too.

  4. What is wrong with that?

    A handicapped child requires tremendous resources that not all parents have or are willing to give. It overturns your life in a way that a normal child does not. And unlike a normal child, it never grows up.

    There are a million reasons why people abort. People abort for much less intense reasons- they want to finish college, they got pregnant too soon, and are afraid they can’t care for two babies at a time. A mentally handicapped child can disrupt one’s life, as much as a teen pregnancy can disrupt the teen’s life.

    Unless they are categorically anti abortion in all circumstances, absolutely no one can condemn a woman or a couple who is unwilling to make such a sacrifice.

    All this is in addition to the fact that many handicapped people live very unhappy lives.

  5. Marilynn Huff

    “…I’m inclined to think that no one is a parent until a child is born.” I agree with you and that view is consistent with current laws that refer to a person as an expectant parent of their unborn child. Only a parent can give a child up for adoption, so a person cannot give their child up until after it is born. The law does not require parents to complty with the terms of an adoption agreement executed before the birth of their child. I would imagine that the law would also not enforce the terms of an adoption contract executed prior to the conception of a parent’s child ( if for instance you promised your first born child in return for rent money for instance).

    Its also true that it is illegal for a parent to sell their child. And its certainly illegal to buy a child. Children are the responsibility of their parents until the reach adulthood but that does not make them the property of their parents.

    So while the surogate was pregnant with the unborn child was she an expectant parent? That is to say should the law see her as being in a position to give the child up for adoption once she gives birth to it? If you say that she is a parent, a mother to the child after it is born by virtue of giving birth to it, then she should not have a contract to relinquish the child for a particular amount of money, that would be selling her child, and the commissioning person would be buying her child. That’s bad. However if she has a contract to provide an incubation service to the expectant parents, she is not selling her baby she is turning over the child to its parents once it is born. I do however believe that because it’s her body the surogate would have every right to terminate the pregnancy without any interference from the expectant parents the same way an expectant mother can terminate her pregnancy and an expectant father cannot prevent it – he has no control over her or her body nor would the expectant parents have any control over the surrogate and her body.
    Julie you have made your opinion quite clear that the law should not recognize people as parents unless they do the work of parents and establish a relationship with the child. That would mean that all children would be born without parents, the expectant parents would not automatically be recognized as parents when the child was born then who takes the baby home and takes care of it? If the expectant parents did not automatically become parents upon the birth of their child how then would they become parents in order to give the child up for adoption if that is what they wanted to do?
    I think its also worth exploring the question of who should the law recognize as being the expectant parent of an unborn child because they presumably would be automatically assigned the title of parent upon the birth of a child.
    I know that the pregnant woman is currently considered an expectant parent which scares me because she could just up and leave and raise the child herself or she could give it up for adoption because like you I do not feel that having a contract with a woman that says she’ll give up her child to you once its born makes the person with the checkbook out a parent or an expectant parent – unless the person with the check book conceived the child and simply is paying to have someone gestate and deliver it.

    I don’t think its appropriate for the law to consider the commissioning party to be an expectant parent, you are not suppose to be able to purchase a child to “parent’. I think a contract with a surrogate is just part of the expense of commissioning the creation of a child for yourself, I can’t say it makes the person a parent or an expectant parent. I don’t think the law should see the surogate as an expectant parent either as I think it puts her at risk for being responsible for the child if the commissioning party abandons the project. If however the commissioning conceived the child themselves then they would be an expectant parent and a parent once the child was born and then they would be liable I would immagine for criminal neglect, they would not be able to abandon the child with the surrogate, they’d have to give their child up for adoption once the surogate delivered it.
    This brings me to the question of who an expectant father is. If a man is the expectant father of an unborn baby which is not growing in his his body, based purely upon the fact that the unborn child is his genetic offspring , then would’nt a woman be the expectant mother of an unborn child that is not in her body based purely unborn child is his genetic offspring? When the child is born who is automatically obligated to the child as its parent?
    Is a man not an expectant father based solely on the status of his relationship with the mother, married, unmarried, anonymous, known, interested, disinterested? If the man who is paternally related to the child is disinterested should the state say that he is not the father and as such has no financial obligation to the child? Can the mother prohibit a man from being an expectant father by naming a person with whom she did not conceive the child?

    “I’m certainly not willing to say that the intended parents become parents by virtue of the agreement between them and the surrogate. So indeed, I think I have to say they can walk away.”

    • In order to make surrogacy legally binding, I think you do have to construct it so that the woman who is pregnant will not be a mother when the child is born. If she is understood to be a mother, then what you say is correct and she is generally entitled to change her mind and keep the child.

      Women who are successful surrogates often say they do not think of themselves as expentant mothers during the pregnancy. I think that makes the process easier for them.

      I’ll have to give some thought to the role of men here. It’s a good question. I will say that I always find it jarring when a man says “we’re pregnant,” by which he means that there is a pregnant woman and he has some particular interest in the child. (I’ve heard this used both in instances of surrogacy and in ordinary heterosexual couples.)

      • I think a good surogate would be one who sees her role as growing the mother’s unborn child for her and when the baby is born return her baby to her. If the law were changed to reflect the woman with the DNA as being the expectant mother and therefore mother at birth it really would be a safer environment for all of the parties when intentions are good and certainly when intentions are bad it assigns the criminal act of either kidnapping or criminal neglect to the right people. It would be a wise change.

  6. In Wisconsin, an expectant (pregnant) woman can be taken into custody and remain in custody for the duration of the pregnancy if she is found to be substance abusing as it causes harm to the fetus. While this happens rarely, the child protection laws allow for this to occur. Just another interesting caveat.

    • I know they arrest women if they are high when the kid is born it happened to one of my very best friends right around the time I introduced her to her father actually. Her baby was taken and they arrested her basically in the delivery room because she was the parent of an infant that was high on drugs. How did the baby get high on drugs? She gave them to him. She is by the way now one of the best mothers ever to walk the face of the earth and has a fantastic life – in large part to the love and support from her formerly dead beat dad, but I digress. She did not get her baby back for a while. She did not look to be such a great mom at first, but she was and is his mom. People can turn things around. So I don’t know that its fare to say you are not a child’s mother if your out of your noggin for a while. I’ve never met a better mother, I look up to her so much. You can never tell. Her son knows she’s a great mom.

  7. Wow. I can not believe that in 2010 such a violation of women’s rights remains on the books. Possession is criminal no matter who possesses it; I can not see how subjecting pregnant women to harsher penalties than any one else in the population is remotely constitutional.

  8. Elizabeth Marquardt

    “…I’m inclined to think no one is a parent until a child is born…”: it strikes me that most pregnant women do not act this way. Ie, most pregnant women do not continue to go about their lives as if nothing of any importance is happening within them — quite the opposite, actually. I am wondering, should this observation have any bearing whatsoever on the question of when/how one becomes a parent?

    • It seems to me it is quite possible to recognize that something important is happening when you are pregnant and at the same time to say that the pregnant woman is not yet a parent.

      I surely agree that many (I hope I can say most) pregnant women take being pregnant seriously and change their behavior in ways designed to promote their own health as well as the health of the fetus.

      I’m also not sure that this observation does have anything to do with when/how one becomes a parent. One could say that no one can be a parent before the birth of the child and then use any of the possible test for parenthood once the child is born. I think these are independent questions.

  9. Well, I am a surrogate mom who delivered a baby girl to the intended parents, my cousin and his wife. And I can tell you that I NEVER was that baby’s parent, and would never have considered it my right to terminate the pregnancy. As stated in our surrogacy contract it would have been my right to terminate the pregnancy if it posed a danger to me. On the other hand, my cousin and his wife were responsible for any decisions made about the baby inside of me, because it was their baby, and it would have been their choice to terminate the pregnancy if their were complications with the baby. The decision about selective reduction if too many embryos took hold, would have been a mutual decision.

    But most importantly I would argue that is not “surprising” at all to me that the vast majority of surrogates do not “change their mind” about surrogacy. Surrogates are almost exclusively generous women who choose to carry someone else’s baby because they so want to help them have the joy of a family. They are not the type of people who would capricously change their minds and yank that joy away from a desperate couple.

    Surrogacy is an amazing opportunity for people suffering from infertility to carry hope for the joy of a family, and in the majority of cases is an overwhelmingly mutually positive and joyful experience for which all parties are deeply appreciative. Delivering a baby girl to my cousin and his wife was the most fulfilling moment of my life, and the most joyful of theirs.

    • Pamela
      I actually think surrogacy should be legal and hold rights to being the highest paying job a person can do – and there should be no problem with accepting money for it, because in my mind and as you said you were never the child’s mother. In your case I believe that you were and always will be that child’s second cousin. You helped your cousins grow their baby and that is awesome.
      Personally, I am most comfortable with surrogacy when you will be handing the child back to the man and woman who conceived the child. I am most comfortable with the idea of giving the child back to its own mother. I know that sometimes surrogates turn children over to people that are not maternally or paternally related to the child. I find that sad, but that is an opinion that I am still open minded about it.

      I think the law should recognize that gestational surrogacy does help people and it is going to go on. It would be safer for the surrogate if the law did not consider her to be the expectant mother or the mother of the child she is carrying so that it is not necessary for a maternal or paternal progenator to have to adopt their own offspring from the surrogate.

      A person should be named on the original birth certificate of their own offspring, they should not have to adopt their own offspring. It is yet another example of the inaccurate information being collected on how many offspring each person has and those records are used to control the spread of disease in the general population by keeping track of who is related to whom. The surrogate should not have to be legally entangled in adoption proceedings either, she should be able to hand the baby over to its parents at birth. Also expectant parents should not be racked with worry that the surrogate will change her mind, she might suddenly think they wont make good parents and she could decide to run off and keep their baby or run off and give their baby up for adoption. She would have that right because right now by law she is considered the mother. Which I think needs to be changed. Julie agrees with law as it currently is and thinks the surrogate should be considered the mother and then give the baby up for adoption. I disagree and think that this approach leaves all parties in the most tenuous of situations. The same goals could be achieved faster for everyone involve and with less risk, certainly with less risk of the parents having the child kidnapped. If you could conceive but not carry your own offspring to term, and you found a woman who would help you bring your baby to term, the fact that she could take your baby once it was born would be terrifying.

    • I’m not surprised that the vast majority of surrogates don’t changed their minds. I think women take the commitment quite seriously. I am surprised that more intended parents than surrogates change their minds. (That’s in the preceding post at https://julieshapiro.wordpress.com/2010/06/10/changing-your-mind-about-surrogacy-whats-a-court-to-do/.)

    • Pamela I find your contract abhorrent and I sincerely hope if it ever came to court that it would be discarded as unenforceable.

      No contract that signs away one’s rights over there bodily autonomy should ever be considered legal, for the same reason that no man should have any authority to decide the course of a fetus inside a woman’s body- even if the fetus is half “his”, the body isn’t.

      You have the right to abort for any reason, or to make all your own medical decisions regarding your pregnancy, regardless of what is says in your “contract.”No one may compel you otherwise. The only question is whether you would then have to return the money.

      A person’s body is their own. Period.

      Your “contract” threatens the reproductive and sexual rights (for example the right not to be raped within marriage, despite the marital contract) of all American women.

  10. In California the intended parents do need to adopt their own baby carried by a surrogate, but they do that midway through the pregnancy, before the baby is born, so the parents get their name on the birth certificate and their is no need for adoption proceedings after the birth. Post-birth adoption is more complicated I believe and more importantly creates a lot more anxiety for the intended parents. While I found it somewhat ridiculous that my intended parents had to adopt their own baby from me, it is a legal solution that I think is far more favorable than post-birth adoption.

    • Wow. I’m sorry I just have to come back to this. I really would like for Julie to do a post on the fact that in California pre-birth adoption is going on so that the people who are related to the unborn child as its expectant parents will automatically be the parents of the child when its born. The only law that needs to change is the one that says a woman is the mother of a child she gives birth to. Change the law to say something like a woman is always the legally recognized mother of her own genetic offspring unless and until she relinquishes her rights and obligations in a formal adoption granted by a court of law. This private contract pre-born child transfer stuff is flimsy as hell.

      • I had no idea that pre- birth adoption is allowed in California. Is there a veto period, say in the first 24 hrs after the birth or something like that?

        Seems like a very iffy situation. Babies can be born with birth defects not diagnosed in utero, or be injured during delivery. Can the adopters change their minds? Can the birthing woman?

    • Having given birth, I think a surrogate should be the “presumed’ parent (much as the married man) unless genetic tests are ordered. I don’t think contracts should serve as evidence. People can write up anything.
      Perhaps medical records of the egg withdrawal, IVF conception and transfer might suffice instead of DNA testing but they would have to be examined by State Personnel or even a court.

    • I won’t pretend to be an expert on CA law but as I understand it, the pre-birth proceedings that occur in CA are not actually adoptions. They are pre-birth orders and they do indeed result in the commissioning parents or intended parents or whatever you call them being legally recognized as parents from the birth of the child.

      One thing that distinguishes this from adoption is that no one’s rights are terminated. That works in CA because you can construct it so that the woman who is pregnant does not acquire legal rights that have to be terminated.

      I also think, but I’m not as sure, that the procedure does not follow adoption procedure–I don’t think there is any home-study.

      I hope this is helpful. If someone from CA knows better than I, feel free to correct me.

  11. I am troubled by pre-birth adoption as a legal concept. I understand in your case it was a work-around to deal with the law that is stupid if you consider your circumstances. Think about what that would mean in a regular adoptive situation if people really did not want the real mother’s name to be on the child’s birth certificate – and then what she would not have the opportunity to change her mind after the child was born? Its quite a frightening precident if you think about what it means to adopt the unborn. What does that do to abortion rights? If someone was willing to adopt your unborn baby then would you have a right to stop the pregnancy does being wanted deliver an unborn child into the realm of peoplehood? And how exactly is that adoption documented by the court because officially you can’t adopt a person until they exist and have a name?
    Julie what do you think of this?

  12. Okay, I am no legal expert, so let me just give you the perspective of a surrogate mom.
    (1) Even though I did not recieve a payment for my gestational surrogacy because I was doing it as a gift to my cousin, I just want to clear up the payment issue around surrogacy. The payment a surrogate typically recieves is for her time and effort carrying a baby for someone else, it not a direct payment for the child.

    (2) I used the term “adoption” too loosely when I was talking about the establishment of parental rights and responsibilites. It is not a formal adoption and requires no home visits or typical adoption proceedings, but is a judgement of maternity/paternity in a parental establishment proceeding.

    (3) Finally, as a gestational surrogate, I was never the parent of the baby growing inside me, instead I was simply its caretaker, protector, incubator allowing it to grow and develop so that I could give it back to its parents. As such, it seems perfectly logical to me that any decision made about that baby inside me is the decision of the baby’s parents who contracted with me to incubate their embryo and carry the resulting pregnancy. I am not a legal expert, and I understand that this may cause alarm as a precedent for other, very different non-surrogacy situations, but if you want better legal response you can contact Andrew Vorzimer or Bill Handel, both attorneys in California who are extremely knowledgeable about surrogacy law.

    Please, though, try to remember to look at this from the Intended Parents perspective. They want to have a baby, but can’t carry a pregnancy, so after many months and years of failure and devastation choose to pursue surrogacy, so they can have a child of their own. Though I carried the pregnancy as the surrogate, this was their embryo, their hopes and dreams, their intent to create a family, that resulted in a pregnancy and thankfully at the end a beautiful baby girl. And so I believe the law and contract in California is correct in assigning the rights and responsibilities of the unborn child a surrogate carrries to the intended parents. Yes, it was my uterus, my body that carried that baby, but the baby was not mine, so how can it be reasonable for me to make decisions and choices about that unborn baby??? Surrogacy is a unique endeavor, very different from adoption, and it is important I believe to look at it from a unique legal perspective because the issues and rights are vastly different.

    • Hopes and dreams do not ownership of another persons body make. Hopes and dreams do not a legal entitlement make.

      • Hopes and dreams actually don’t give you ownership of anything, really. I don’t think that’s the basis of the claim. We do frequently–perhaps even generally–enforce promises in law. That’s the basis of contracts. There’s also a pretty broadly shared morality that suggests we should keep our promises, or at least try to do that. In surrogacy a woman promises to bear a child for someone else, and so the question is whether that is legally or morally binding. Since in general I do think we favor keeping promises, the challenge is to explain why these sorts of promises are different.

        • If I contracted to have sex with someone, and I withdraw my consent, can a court order me to be raped?

          According to your view, why not? But surely I should keep my promise?

          This was the philosophy prior to the 70’s (or perhaps later) that excluded marital rape from the definition of rape. Aren’t you glad we have moved beyond those dark ages?

          A person’s body is different than goods or services.

          In all other areas, courts recognize that. My understanding is that courts will not even give Lupron (a medication lowering sex drive and ability) to serial sex offenders without their consent.

          But when it comes to reproduction, I am sorry to say that women are still treated like baby- producting machines.

  13. So your saying its more of an aknowledgement of Genetic relatedness – like you the surrogate won’t challenge them on the fact that its their kid and you’ll give it back when its born. They are not really adopting their own child because it was never yours. I agree with all that, with everything you said actually. The laws need to be corrected to be more supportive of what is logical – the people genetically related to the baby in the surrogate’s belly are the expectant parents.

    • I think this is a fair description of the framework behind surrogacy: The child is the child of the commissioning parents. There are different rationales that can be offered to support this framework. If you accept the genetic relatedness rationale (which I think you do) then this would only work if the embryo was created with genetic material from both of the commissioning (or intended) parents. That means excluding single people, same-sex couples and heterosexual couples with one or both partner unable to contribute genetic material, I think. Or at least setting them on a different track.

      In the alternative, you can argue for surrogacy on the basis of the agreement made between the parties. In that case the genetic relationship is irrelevant. This, too, opens the door for what is sometimes called “traditional surrogacy”–surrogacy where the woman is genetically related to the embryo.

  14. I would also concur with what Pamela said and did. Her cousin and spouse are the parents regardless of who gave birth to the child and the laws hopefully reflect that.

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