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.