Last week I discussed a case of surrogacy gone badly awry. It’s been a while since surrogacy has been my topic and it was interesting to revisit it. The last post was an effort to move back to a broader context. But I’m about to go to a meeting to discuss surrogacy and between that and the comments, I thought I’d return to that topic once more to try to organize my thoughts.
One way to begin to think about surrogacy is to start with a question: Is the woman who gives birth a mother?
If she is, then I don’t think the law can compel her to give her child to the commissioning parents. I don’t think this makes surrogacy impossible, but it obviously shapes the practice of surrogacy. It’s the way the law is in the UK. A long time ago I started to think about a name for this sort of surrogacy and didn’t really come up with one, but I do think it would be useful to have something to call it.
The alternative to this form of surrogacy–whatever I call it–is what I called “binding surrogacy.” In binding surrogacy the surrogate is legally obliged to give the child to the commissioning parents. I think (though you all can push me on this) that the only way to get this result is to say that the surrogate is not a mother even though she has given birth to the child. Since historically giving birth has made one into a mother (legally and I think socially as well), this is a novel position that requires justification.
There are at least two arguments that one might make about why the surrogate is not a mother. First, assuming the surrogate is a gestational surrogate (that’s a woman who is genetically unrelated to the fetus), one could assert that it is the genetic relationship with a child that determines parenthood. Since the gestational surrogate is (by definition) not genetically related to the child, she is not a mother.
Second, you could assert that the agreement entered into between surrogate and commissioning parents determines parenthood. The surrogate is not a parent because she does not intend to be a parent. Instead, the parents are the people who intend to be the parents–the commissioning couple.
Adopting either one (or both) of these positions has broader implications. So for example, if you assert the genetic basis of parenthood, then you would make traditional surrogacy (where the surrogate is related to the child) unpalatable. (This might be worth thinking about because from the point of view of a woman planning to be a surrogate, using your own genetic material is easier and less intrusive. ) You’d also diminish the utility of surrogacy for single people, gay male couples, and heterosexual couples who cannot both produce viable gametes.
Of course, asserting the primacy of genetics as a basis for determining parenthood has many other implications that go far beyond surrogacy. We’ve been discussing this on the blog off and on for months. It seems to me it would be hard to say that genetics is determinative of parenthood in instances of surrogacy but not in other circumstances.
If you go the intent route, then it seems to me you would not distinguish between gestational surrogacy and traditional surrogacy. You would also be likely to make surrogacy available to a broader range of people (although you could exclude categories of people on other independent grounds.)
As with genetics it seems to me it might be hard to say that intention is determinative in surrogacy but not in other contexts. We haven’t talked as much here about what that stance might mean outside of surrogacy. It might be worth thinking about.