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.