Parentage, Surrogacy, and the Seamless Fabric of Law

As I mentioned in yesterday’s post, I was heading off to a meeting where we talked about surrogacy.   This meeting and then the comments on yesterday’s post (which you might wish to go and read) have put me in the mood to continue musing about the topic at least a bit longer.   Some of this really is drawn from responses to comments, but I figured I’d try to draw it all together a bit more neatly here. 

First, it is worth remembering that the law governing parentage has been evolving over a very long time.    But to be clear, it isn’t law in the same sense that the laws of nature are law.   Law about parentage is made by people and it has varied to suit historical and cultural needs.  

I think this point often escapes notice and it has been controversial when I’ve raised it before.   It’s easy to think of parentage is a sort of natural law–a man and a woman engage in intercourse, the woman becomes pregnant and in due time a child is born and the man and the woman are the parents.   

But the status of the man and the woman as parents of the child–either in a social sense or a legal sense–is not fixed by nature.    Certainly the man and the woman described here will have a particular and fixed biological relationship to the child–they have provided the DNA.  But over time and across cultures, different societies have assigned different legal and social meanings to those genetic facts.    (I think this is the proposition that sparked discussion a little while ago.) 

Although law and social custom about parentage has always varied widely, it has been determined against a relatively fixed background:  virtually all children were conceived via heterosexual intercourse.   And then came ART.   Now while some of the technologies of ART are not particularly high tech (assisted insemination, for instance), IVF opened a while new range of possibilities.  For the first time, a woman might give birth to a child without having any genetic connection to the child.    Neither law nor culture had any rules to govern this.  

If ART was to be useful, new law (and new social practices) had to be developed.   Many forces shaped the law and practices that emerged, but I think it’s fair to say that at least some uses of ART gained wide legal and social acceptance.    Additionally, particularly in the United States, a fairly robust commercial ART industry developed.   This, too, has played a role in shaping US law regarding ART.  

It’s also nearly inevitable, I think, for the practices developed around ART (whether legal rules or social norms) to have a some influence on more general parentage law and norms.   For me, this raises the consistency question.   Can you have one set of  rules for parentage where conception is via ART and a different set of rules for everything else?     I don’t think you cannot really maintain two distinct and inconsistent systems side-by-side.     Even if they don’t come into direct conflict, if the underlying principles conflict, one will eventually have to give way. 

This is why it’s important, I think, to try and articulate the underlying principles that lead people to particular decisions.   I think a focus on the principles helps ensure a degree of consistency and that consistency will then yield greater stability.  A system of rules riven by internal inconsistency must, in my view, be unstable.     

And so back to surrogacy for a moment, to articulate a particular conclusion I reach that I plan to expand on tomorrow.   Anyone reading this regularly knows that I would not determine parentage based on a genetic linkage.   This being the case, I don’t think it makes sense for me to distinguish between gestational surrogacy (where the surrogate is unrelated to the fetus) and traditional surrogacy (where the surrogate is genetically related to the infant.)   If I accept the distinction there, it will inevitably undermine my position that the genetic link, while interesting, ought not to be determinative of parental status. 

I actually think the distinction between the two forms of surrogacy is fairly widely accepted, but in law and in the public mind.  My guess is this is a relatively reflexive and unexamined acceptance.   I’ll take a shot at that tomorrow.

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25 responses to “Parentage, Surrogacy, and the Seamless Fabric of Law

  1. “But over time and across cultures, different societies have assigned different legal and social meanings to those genetic facts. ”

    How certain are you of this? I haven’t researched this, but I think most societies, while allowing for exceptions to the rule, never abandoned it as the mainstream model.

    • I think it has generally be the case that a woman who gave birth to the child was seen to be the child’s mother. (I think there are exceptions even here, though. I believe (and here I am not sure) that in Imperial China if the Emperor’s concubine gave birth to a child, the child was seen to be the child of the Empress.) Until ART came along, this meant that the mother was genetically related to the child, but I doubt people separated the genetic link part from the giving birth part when they thought about mothers.

      But because of the role the male plays in procreation, identifying the man who provided the sperm wasn’t always easy. So doctrines like holding out (where a man presents a child to the world as his child, he is the father) or the marital presumption arose. I don’t know that you can say that those things were really just proxies for knowing the genetics. I think the effort was to stabalize families as they actually existed. Thus, if a man welcomed a woman and a child into his home and presented the child to the world as his child, what interest would society have in doing anything to undermine that?

      All if which is to say that I’m fairly confident.

  2. If one looks at Jewish and Islamic law, they have never allowed the assigning of parentage, thus in neither country can an adopted child inherit as of right, and adopted children are not given the tribal status of the father. Jewish and Islamic law have been highly consistent in extending this principle to donor conceived children, so for instance a social father who divorces will have no obligation to support a sperm donor social child and a donor egg child does not become Jewish just because s/he is gestated in a Jewish woman’s womb. Islamic and Jewish law will never allow a transfer of parentage just the caregiving role.

    Hence, it is definitely true to say that there are certainly some societies who have never wavered from the genetic attribution of parenthood.

    • Marilynn Huff

      Wow I did not know any of that. Thank you.

    • the genetic link, while interesting, ought not to be determinative of parental status.

      What do you mean by “determinative”? Or “status”? I think you are making a vague strawman here, as if anyone is arguing that being a genetic progenitor automatically and irrevocably gives you an absolute right to custody and guardianship and the child to inheritance.

      This has me thinking about the Supreme Court case that ruled for equal protection of illegitimate children’s inheritance rights. It wasn’t based on paternity tests, which might not have even been invented yet. (I should google this but I won’t) I think the blues singer Robert Johnson was dead when his estate was sued by an illegitimate family. Johnson was acknowledged as the father, but might not have been. Would a genetic test have changed that ruling in that case?

      • Oops put that in the wrong box, should be a comment on the main post.

      • All I can say is that I am not intentionally creating a straw man. I meant to say that one should not get to be recognized a parent simply on the basis of having been the source of 1/2 of the genetic material. It’s true that not all parent’s have custody or control of their children and some don’t even get to see them. But being recognized as a parent does give you very important legal status.

        I think other commenters have asserted that a person who donates sperm or eggs and is otherwise totally uninvolved in child’s life should be recognized as a parent, and I wanted to be clear that I do not agree. Even if there isn’t anyone out there making that point, I just wanted to be clear about where I was coming down on this.

        There are instances where blood tests are everything. I believe, for example, that they are about to exhume Bobby Fisher’s body so that they can test the DNA. There’s a young girl in Iceland (?) who may be his daughter. They will determine this based on DNA analysis. If the DNA matches, I believe she may be his only heir, or at least his first heir. This is the sort of story I think we all ought to think about. I confess I am not sure what I think just at the moment, but you’ve just jogged my memory about it.

        • Progenitors should be recognized as biological parents, on birth certificates. This does not automatically give them guardianship.

          I think I agree that if Bobby fisher had a daughter but never supported the mother or daughter, then it is not too late to correct his negligence. On the other hand, I think that Michael Jackson’s three children are entitled to his estate, even though they are not his biological children. Though I think it’d be great if Joe sued to have them declared children of the bio mom and dad, who illegally sold them to Micheal Jackson, and tried to keep the fortune in the Jackson Family as it really is. No one really deserves to be born into wealth anyway.

    • I’m reluctant to wade in further than I know. As I understand it, Judiasm historically matrilineal. Thus, to determine whether a child was Jewish the identity of the mother was crucial, the identity of the father not so much. And this might tie back to the fact that the identity of the mother (the woman who gave birth) could be known with certainty. The identity of the father could not be.

      It’s also true that adoption was unknown in ancient Jewish law–I think it was a Roman custom. But of course, Judiasm isn’t monolithic and today the rules observed by different branches of Judiasm vary quite a bit. If you go back to this post https://julieshapiro.wordpress.com/2010/05/14/buying-eggs-and-drawing-lines-and-egg-providers/, in the latter half you’ll see discussion of a current debate between orthodox rabbis over whether the Jewish identity of the egg donor or the surrogate is critical.

      I’m sorry to say I do not know anything about the relevant principles of Islamic law.

  3. marilynn huff

    It seems to me that if an unmarried woman gave birth to the child of an unmarried man, there was a time that that man could decide to claim the child as his own (though he was not legally obligated to do so as nobody could prove it was his) and his wife would take the child on as her own and be its mother if she A) had requested that her husband conceive a child with his mistress for her to raise as her own or B) wanted to raise the child as her own once she found out about it or C) was forced to accept the circumstances and take the child in and pretend it was hers.
    I think originally the law would recognize the wife as the mother of a child conceived by her husband with his mistress if the husband wished to take responsibility for the child without leaving his wife/existing family. Just as a woman that conceives a child with a man who is not her husband can name her husband as the father of the child even though the child is not his offspring. I think this was largely allowed because the law had no way of proving that a man was or was not a child’s father and could only compel men to take responsibility for children their wives had. This left room for wives (possibly in cahoots with their husbands) to keep unmarried fathers from their children and also made men cuckholds to their wives illigitimate children knowingly and unknowingly. Despite the injustices brought by those laws it was probably the most equitable distribution of risk, considering proof was not available yet.

    • Originally the marital presumption worked against husbands, I think. They were stuck raising children who might or might not have been “theirs.” And the presumption was a response to the fact that the uncertainty about lineage and legitmacy was destabilizing.

      It fascinates me that over time the function of the presumption has shifted entirely. As we have acquired knowledge of and ready access to DNA tests we have given the husband to overcome the presumption if he wishes to. Now the presumption empowers the husband/wife team to exclude the outsider, even if the genetics establish he is the man involved in conception of the child. https://julieshapiro.wordpress.com/2010/05/03/the-power-of-marriage-in-making-men-fathers/

      So over time, two things happened–first, the presumption switched from working against the husband to being something that potentially protected him; second, DNA testing gave us the ability to know the genetic facts with near certainty. But I’m not persuaded that the second caused the first–I don’t think the timing is quite right.

      • Marilynn Huff

        You mentioned imperial China where the wife of the Emporer would be the mother of his concubine’s child, this would be traditional surrogacy, this is what I am talking about above. There would be instances where single men and women could loose (or sell or gift) their right to be recognized as their own offspring’s parent if they conceived their offspring with a married person whose spouse is willing to act like they conceived the child together as a couple.
        There are probably as many people who felt their parental rights were stolen from them as their were people who felt they got off scott free. Its important to remember that now the law can prove relatedness beyond a shadow of a doubt so that nobody unknowingly looses the right to be a parent to their offspring just because they were not aware that the child was born. Its important to make sure that the law does not grant parental rights to someone over another persons offspring unless both people who conceived the child are aware that the child exists and have relinquished their parental rights to their offspring in court and parental rights are granted in court. What that means is the law should not aknowledge transfer of parental rights on unborn children because expectant parents are not parents yet those little unborn people can’t be transfered away from the people that conceived it in order to get the intended parent’s names on the birth certificate.
        If genetics is not the basis for being a child’s parent at birth then what should be? You have to look at who the expectant parents were and what makes a person an expectant parent? Intent without a genetic connection? Who would stop people from laying claim to everyone elses offspring? Lack of intent? Then men would not be obligated to support children they never intended to conceive? Go back 50 years to unsupported “love children”? Or is it money? A canceled check to a man who agreed that you could raise his genetic reproduction without interference from him? If you paid then you qualify as a parent when the child is born?

  4. I think the law in many states still follow the genetic link for determining parentage and hence, responsibility for one’s offspring – especially in today’s society. While ART has certainly created some “twists” that make us review how parentage is defined, DNA testing has made defining parentage genetically nearly foolproof. I would wonder how many Courts would adjudicate a man the father of a child conceived by ART if he could prove he was not genetically related to the child? Probably not many today. I see an awful lot of swab testing going on in the lobby of the Health & Human Services Department I work in by child support folks trying to determine paternity. Something tells me that will not go away anytime soon. I still think the genetic link is the strongest for determining parentage and thus responsibility unless it can be legally relinquished.

    • The advent of ART really put a lot in play.
      If the man was married and consented to ART, then I think most courts would adjudicate him a father no matter what DNA test show. If he isn’t married, or if he didn’t agree he is probably not going to be adjudicated a parent.

      Unless, of course, he happens to take the child into his home and hold the child out as his. Or unless he fills out an voluntary affidavit of paternity. I guess what I mean is that later circumstances might convert him into a father.

  5. Neither law nor culture had any rules to govern this.

    If ART was to be useful, new law (and new social practices) had to be developed.

    Julie, as I recall there were indeed cases, I think in the 40’s, where AID was ruled to be adultery by the “old law”. I saw a footnote to such a case in an old book. Do you know of the case?

    I like how you acknowledge that the “new law” had to be made to make ART useful and legal, and that the purpose in all those changes in law was to make it useful. It’s still adultery though, even if the human made law says it isn’t, the biological law says it is.

    • I’m not sure if I know the case you mean. I’ll try to poke around.

      I have a hard time seeing ART as akin to adultery in any real sense. I think of adultery as involving breach of trust, betrayal, etc. In the case where the husband agrees to ART, there’s no deception and no breach of trust.

      It’s different if the husband does not agree to ART, but I think you are drawing the equivilance more broadly than that?

      • Yes, adultery law in my state (Massachusetts) makes no mention of lack-of-consent or betrayal, and it would have been adultery even if a spouse knew about it and accepted it. The law simply prohibits sexual intercourse by people married to other people (and both are guilty of it in my state, not just the married partner). So I think originally, judges were saying that just because a turkey baster was used, it was still sexual intercourse, but now they don’t consider it sexual intercourse. I think something just changed in how they interpreted the same law.

        • That’s fascinating. It suggests there are two different ways of thinking about what constitutes adultery–it could be a married person engaging in sex with a person other than their spouse or it could be conceiving a child with another person not their spouse. Ordinarily, you don’t get the second without the first. But if course, with ART you do, so then you might have to consider whether conception without sex constitutes adultery. And to the extent adultery was/is about preserving the genetic line of the husband, you might want to say “yes.” It seems consistent with a view I’ve seen (I think primarily in archaic cases) that engaging in oral sex with another might not be adultery.

          In any event, you can see why an ART friendly state would not want to include conception without sex as adultery.

  6. Julie, you say: “Law about parentage is made by people and it has varied to suit historical and cultural needs”. I disagree. It has not varied that much, because you forget: “to suit biological needs”. People are flexible, but they are not above biology.

    You also say: “But the status of the man and the woman as parents of the child–either in a social sense or a legal sense–is not fixed by nature”. I would say it is not fixed by nature, but very muchdetermined by nature. The fragile nature of the child-stepparents relationship is an obvious example.

    You also say: “But over time and across cultures, different societies have assigned different legal and social meanings to those genetic facts”. I would say to a very limited extent, and for an obvious reason. Traditional societies generally don’t allow people to procreate without taking responsibility for their offspring, not necessarily because they are narrow minded, but because they can’t afford it. England and Scandinavia have recently changed their family laws in the same way, insisting that a child has both a registered biological mother and father. Some feminists have criticized these laws by saying: ‘why are fathers suddenly becoming important, when single women are allowed to be artificially inseminated in public hospitals?’ The answer is simple, and as old the world. Fathers have something special, and it is not just sperm. It is something that these governments don’t have any longer: money.

  7. I do not agree that ART laws should be used to alter the existing parental legal structure. ART laws should endeavor to match the already existing structure.

    • I think there are ways in which ART does try to match existing law–it continues the marital presumption, for example. But there are places where this is problematic as a guiding principle.

      First, ART allows things that simply weren’t possible before, so it’s hard to say what it would mean to match existing structure. I’m thinking here of a woman giving birth to a child she is not genetically related to and another woman establishing the genetic relationship to a child she did not give birth to. The existing law just doesn’t help us here.

      And then, there are places where the existing law might be said to suggest a result, but it is a result that makes ART less useful to people in general. So for example, you might say that existing law suggests that a man who provides sperm used for insemination of an unmarried women should be considered the father, but if you did that, ART would be less useful to most (if not all) unmarried women.

      I don’t mean to say that you have to agree to deviate from existing law because that will be more useful to unmarried women. I only mean to say that if ART was to be exploited then some new law was required.

      • Marilynn Huff

        No I think single women could still purchase sperm from anonymous donors, but I think he should have to relinquish his parental rights and responsibilities upon the birth of his offspring as any other expectant parent would. I say that his waiver of parental rights signed prior not just to birth but possibly conception is done outside a court of law, and one cannot sign away their parental rights before one becomes a parent. This is how I belive several women have actually won child support from sperm donors. Its sort of like signing a contract waiving your right to be free and become someones slave for a year, or promising your first born child to someone, its doubtful any court would compel you to comply with those terms, although there might be a damage clause or something. I think its wretched that a couple could hire a gestational surrogate to carry their own offspring and then have to worry that she might run off with it. I think its wrong that the law says she is the mother and they must adopt their own offspring. This must be very nerve racking for them until the adoption is finalized. This is however how it should be only in reverse – People genetically related to the child should have to give it up for adoption to the people that commissioned it and there could be damage clauses but again I don’t think a court could compell you to hand over your child if you signed the waiver before it was even born. And don’t forget its illegal to sell people. There is no viable means for the legal system to keep track of the whereabouts of all the unborn children, who has custody of them what their identities are. Its just not practical to have unborn certificates and pre-birth adoption. The problem is with these flimsy ART contracts. People get the wrong embryo implanted in them its very simple give it back to the people who conceived it before you develop a relationship with it. DNA testing at birth allows everyone to get every thing they want except their name on the original certificate of a child that is not their own offspring.

  8. I apologize for posting this here, but I don’t have the time or desire to sort back through the comments to find where this question was raised. Recently, a commenter (I think kisarita?) inquired as to whether adultery really was more or less prevalent in the past. I came upon this article (http://www.ncbi.nlm.nih.gov/pubmed/19320216) and found it quite interesting. Basically, the meta-analysis asserts that adultery rates have been on the decline recently. Quite different than the popular scenario of loose morals leading to more misattributed fathers.

  9. Julie
    Does it really make sense for people to have to adopt their own offspring from a surogate who has no genetic relationship to the child? Why should the law continue to say she is the mother by virtue of giving birth? It gives her more responsibility/authority than she wants if she is only in it to be a surrogate, and certainly more responsibility/authority than the comissioning couple wants. The idea that the unrelated woman’s husband could actually end up as the legal father is just wrong. The old laws should not apply any more

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