Last time I suggested there were two sets of “hard cases” when surrogacy goes bad. I think it’s important to think about these hard cases before they actually arise. After all, if one cannot come up with adequate solutions to them, perhaps that is a reason for banning paid pregnancy, which is how I’m thinking about surrogacy just now.
The hard cases are those where one of the parties to the agreement (either the intending parent(s) or the surrogate) changes her/his/their mind. I discussed what I think of as the easier of the two hard cases–where the intended parents decide they do not want the child–last time. That leaves me with the harder hard case–where the pregnant woman changes her mind and decides she wants to keep the child.
In thinking about this, it’s worth noting one bit of background information: A pregnant woman can agree to an adoption before her child is born, but she will always (someone stop me here if I’ve got this wrong?) have some time after the birth to reconsider this decision. In other words, her commitment to adoption is not irrevocable. Although the period during which she can reconsider her decision is short, this has doubtless this has lead to heartbreaking situations for the people planning to adopt the child. (I do wonder about how frequently this occurs–has anyone seen any statistics?)
So one way to recast the question about the hard surrogacy case is to ask whether the pregnant woman in the surrogacy case should be treated the same as the pregnant woman in the adoption case. If she is treated the same, then she can choose to keep the child. If you want to say she is bound to deliver the child to the intending parents then you need to say you would treat her differently than the pregnant woman in the adoption case.
(It occurs to me it would also be possible to say that we should change how we treat the pregnant woman in the adoption case and that in both instances the woman should be bound by her commitment, but I’d like to defer this discussion to another day in order to try to keep things under control here.)
I can see two ways you might distinguish surrogacy from adoption. First, you could focus only on gestational surrogacy, and distinguish that from adoption by saying that in the former there is no genetic connection between the pregnant woman and the child she gives birth to and in the latter there is and that this distinction warrants different treatment. I reject this line of reasoning because I would not give that sort of meaning to the genetic connection or lack thereof, and because I don’t want to distinguish between gestational and traditional surrogacy.
In the alternative, you could distinguish between surrogacy and adoption by focussing on timing. In surrogacy, the intention not to be a parent precedes the pregnancy. In adoption, the pregnancy comes first, followed by the decision to participate in adoption, which is the intention not to be a parent. (You could also note that the intention to parent of those commissioning the surrogacy precedes the pregnancy, while the intention of those planning adoption does not precede the pregnancy.)
Now these are actual distinctions–I do see that. But it isn’t as clear to me why these distinctions should be freighted with great significance.
Things might look slightly different depending on whose point of view you take. I really don’t see why the order of pregnancy/intention should matter from the point of view of the surrogate. After all, many women become pregnant without giving much thought to whether they intend to be a parent–as when pregnancy is the unintended result of sexual intercourse. So in those cases, too, the pregnancy precedes the formation of intention, yet we’d give the pregnant woman the chance to re-evaluate her decision to give up the child for adoption after the child is born.
From the point of view of the people intending to become parents there might be slightly more reason to draw this distinction. In the case of surrogacy, the intention of the commissioning people is the motivating force behind the pregnancy, while in the case of people planning to adopt, it isn’t. But it isn’t clear to me why being the motivating force ought to change the right of the women who is pregnant to have that period for reconsideration.
I’m not sure I’ve made that much progress here today–maybe all I’ve said is that I don’t really see why we would treat adoption and surrogacy differently in this regard. I’ll try to work through this further tomorrow.
One thing you might note–I’ve proceeded mostly today without dealing with the question of who is the parent of the child born to the surrogate. I do think this a critical question in the end, but I wanted to try to think about the problem without diving right into that.