Surrogacy’s Hard Cases, III

This is (pretty obviously) the third in a series of posts.  You might want to read parts I and II first.  And there’s an earlier post that sets up those two as well.  

I’m trying to work through what I think is the hard case in surrogacy–where the surrogate changes her mind and wants to keep the child.  I think that no matter how surrogacy is structured, no matter how many safeguards, how much counselling, is included, these cases will inevitably (if infrequently) arise.  Thus, if you’re going to assert that we should permit paid surrogacy, you need to have a way of dealing with them.  

I’ve been thinking about this as a zero-sum game.   What I mean is, that I’ve been thinking that you have to choose–either the surrogate is a parent or the intended parent(s) are parents.   One wins, one loses.  One gets the child, one does not. 

Of course, the parties base their claims on different analyses.   The surrogate claims status by virtue of pregnancy/birth (which to my mind is a species of de facto parenting.)  The intended parents claim status by virtue of intention and also by virtue of the contract between the parties.    

The way I’ve been thinking about this, each party in this fight must not only assert their own status as parent, they must also assert that the other party is not a parent.    So while  generally a woman who gives birth to a child is a mother, the intended parents must assert that a surrogate who gives birth is not a mother.  (This was the focus of the last post.)   Similarly, the surrogate must assert that the intended parents are not parents.   (She doesn’t have a long history of established law to overcome in doing this.)  

I think what I find most difficult is the argument that the woman who gives birth is not a mother.   Perhaps this is because I am generally in favor a de facto parent analysis.   But the result has been that I have found myself resisting the intended parents claim to parentage as well.  

So here’s a different idea:   Suppose I just think about the parties claims to be parents (rather than their arguments that the other party is not a parent) first?  

I’ll start by accepting the surrogate’s claim to legal parenthood by virtue of pregnancy/birth.   (Note that if she is a legal mother then she cannot be compelled to give up the child.)  

Now what about the IPs?  They can invoke their intention, of course.   But they may also be able to point to a course of conduct that bears out that intention.  (I’m thinking here of their engagement with the surrogate throughout the pregnancy as well as other potential activities.)  

They can also claim that they caused the pregnancy to be–that but for their intention to become parents, this pregnancy would not have occurred.   I’m not exactly sure how to categorize this claim, but I’ll leave that aside for a moment. 

Can I avoid the zero-sum game?   More concretely, do I have to say “no” to the intended parents because I said “yes” to the surrogates?    Why would I have to do that? 

There’s a California case from some years ago where the state supreme court faced competing claims for parenthood–it’s the landmark case in this area of law.   (It’s called Johnson v. Calvert.)   That court weighed what it saw as the competing claims of the two women involved (one the surrogate, the other the female half of the intended parents) and came down in favor of the intended parent.  

But reading that opinion raises the question for me about why the court had to chose?   The answer, I think, is unswerving allegiance to the two-parent model.  Indeed, the court’s allegiance is to the two-parent, one-of-each-sex model.   (The two women play off against each other, while the sole man simple breezes through–no competition.)   

What would happen if we said everyone involved has a claim to legal parentage?   Perhaps none of the parties will like this outcome, but that’s the nature of compromises.   If the intended parents and the surrogate are all legal parents, then the struggle over the child is a simple custody case.  (This is exactly what happened in Baby M.)   I’ll think about that tomorrow.

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27 responses to “Surrogacy’s Hard Cases, III

  1. “The two women play off against each other, while the sole man simple breezes through–no competition.” I am a bit miffed over this statement since whoever is determined the legal parents also has the financial obligation of a lifetime. I am not a fan of the multiple parent model (3 or more people declared to be the legal parents) who during the course of the childhood all play mommies or daddies. We still live in a society that is comprised almost exclusively of the two parent model – granted many, if not most, are either single parent households or mom living with someone. Yet they are still either one or two parent households. I think it would be very confusing for a child/children to grow up in a home vastly different and then if things went awry, you could be in custody fights galore….much more than a two parent model.

    • Point taken. I suppose I was assuming thatt in this context the goal of all the individuals was to gain recognition as a legal parent. In that context, it seems to me notable that with three candidates (two women and one man) the man gets a free pass while the court sees a need to choose between the women. Why does this make sense?

      I can imagine saying you choose between the two households (surrogate (which could I suppose include a spouse/partner) or IP (which could be single or couple, different or same sex). This might address your concern about the child’s confusion. But I’ve never seen a court think about it this way. Instead, they go individual by individual, and (at least in Johnson v. Calvert) they measure the two women seem to compete for the “mom” spot while the man gets the “dad” slot without question.

      it seems to me that in a case like Johnson the contribution of the man and the woman in the intended parent couple is identical–genetic material. So shouldn’t we assume they will be treated the same? It does come out that way (the IP woman won over the surrogate) but not for this reason.

  2. My sister in law was born over three month’s premature and was in an incubator at the hospital 4 months after the original due before she was strong enough to go home weighing then all of 5lbs. She was in that incubator, cared for by hospital workers much longer than she was ever in the womb and there was certainly no labor or delivery involved in my sister-in-laws birth. My mother-in-law did not take care of the baby herself for a very long time. Does that make the hospital workers parents and did my mother-in-law need their permission to begin taking care of the daughter she conceived? Did my mother-in-law begin performing her parental care-giving tasks at the moment of conception as you suggest and does the fact that she was unable complete pregnancy, labor and delivery disqualify her from being a mother in your mind? Doez the fact that she needed someone else to perform those duties for her undermine her parental rights?
    If a woman’s parental caregiving responsibilities begin at the moment of conception – then she is a mother in your mind from that point forward right? A woman is pregnant when her egg is fertilized so I think maybe we should start saying that a woman is pregnant when her egg is fertilized regardless of where it is fertilized so as not to descriminate against women whose conceptions need to occur outside their bodies in order to survive. Maybe we say that woman is pregnant as long as the fertilized egg is viable regardless of how long gestation is deferred and regardless where gestation occurs because it could be her womb, or an incubator or the body of a woman hired to provide gestational services. Maybe start saying a woman with viable frozen fertilized eggs is pregnant because she is having them taken care of until she can find a good place for them to gestate and be born. Pregnancy can last years while gestation will be limited to 40 weeks. The mother would then be the woman who was pregnant from the moment of conception and the person gestating for her would have absolutely no claim to the child. Every woman that gives birth needs to take a dna test to prove that she is not only the gestating person but also the actual mother of the child. A gestational carrier can go have the baby at a hospital out of the area and nobody will know that she is kidnapping someone elses baby. And the real mother would be charged with child abandonment if she did not take the baby home from the hospital with her.

  3. Pregnancy is a medical and scientfic term. Medically speaking, pregnancy is defined as occuring from the time of implantation, not of fertilization.

    • dang – it was worth a shot. well actually, I can make up my own definitions and go around using the word however I want – the way adoptive parents use to and DE parents do today.

      • But I’d like to explore that further kisarita I mean if a womans parental rights are at stake its important to treat women who conceive outside their body the same as those that conceive inside their bodies. Is it really fair that at the moment of fertilization Julie says that one woman begins her journey in parental caregiving and the other woman who frankly has more planning and coordination on her part to sustain the life of that fertilized egg than the other woman if she puts that fertilized egg back into her own body she gets to have parental rights but if she asks for the help of another woman to carry and deliver julie says shes bassicaly got tough luck. The fertilized egg is hers nobody could argue that – should she not be able to maintain her authority over her fertilized egg when its outside her body especially if she does not sign a donor form waiving her rights? I think the donor waiver is unenforceable the way a promise for adoption is unenforceable before the child is handed over she can change her mind.

    • Thanks, Kisrita, for that clarification. I was thinking that was probably the case. It makes sense to me.

  4. I don’t view being pregnant with someone else’s fetus as a regular task like child care and babysitting. I’ve previously stated my belief that a person has absolute rights over their own body and anything in it.

    And while I also tend to give the edge to the genetic parent, the role of the surrogate is not so clearly defined for me, since after all, at one point the baby was part of her body. I think that putting it in someone else’s body, is different than putting it in a petrie dish.

    So there’s a dillemma. Let’s say for the sake of argument, people have a right to decide what to do with the issue of their bodies (which I will admit is not a necessary corollary to the right to control it while it’s in their body).
    The mother who produced the egg made a free choice to relinquish it to someone else’s body. It’s no longer hers. So it would seem that the surrogate retains the choice once the baby is born.
    The way I resolve this dilemma is to strip the entire issue of property rights altogether. They don’t apply once the child is born, because the child is no longer issue nor property.

    When dealing with children, unlike property, relinquishment prior to birth doesn’t apply. So since genetically she is still the parent, her relinquishment is irrelevant.

    If the genetic mother or father is unavailable I believe the surrogate retains parental rights. Traditionally pregnancy has always been a determinant of parenthood before we were able to separate the two, so although I give the edge to genetics, I don’t discount pregnancy entirely. I don’t view it as a mere service.

    • If a parent leaves their child with a babysitter, they have the right to make decisions as the adult in charge and they will hopefully make decisions that you agree with and if your child is harmed thru their negligence you would have a claim I’d think. But not if your child is hurt thru some freak accident that the person you hired could not control and I think for a gestational surrogate that might include finding out that continuing with the pregnancy would jepordize their own life or something. I think in that instance or in the instance that the gestational carrier simply decides to have an abortion – that is the risk the woman hiring her has to take. I think the carrier has authority while its inside her body – but not once its out.

      If a woman is pregnant with offspring conceived from another woman’s egg she is a gestational carrier for the woman whose body produced the egg that was fertilized. The criteria used to determine whether she is or is not the mother of that child when its born should have nothing to do with whether she paid to be a gestational carrier or if she was being paid to be a gestational carrier. Women paid for their eggs sign waivers of their parental rights over any offspring created with their eggs (I find that reprehensible) but its at least written consent to relinquish her rights. Women hiring gestational carriers don’t sign anything like that – whats up with that wierd double standard?

  5. I would agree with your second paragraph Marilynnhuff. Not only do women sell their eggs, but men sell their sperm and also sign over any rights associated with making children from it. Should any of that be allowed and if so, should anonymity be allowed? Some countries like the UK do not allow it. There is virtually no regulation of gametes in the USA. People can buy, sell, and give away their gametes to make babies to anyone anytime. When it comes down to who pays, then accountability and responsibility come into play….and that is where it gets to be a sticky wicket indeed. The Courts get involved eventually when agreements cannot be reached or are not satisfied. Like you, I tend to follow the genetic link primarily because it can be established especially with today’s technology.

    • If genetics are what is most important then isn’t it problematic to sell sperm/eggs? That amounts to selling your parental rights, which is essentially selling a child. For this reason, I think that those who would use genetics to determine legal parentage probably ought to oppose use of third-party gametes unless there is some procedure to terminate parental rights (and I’m not sure when you’d want the procedure to occur.) As an alternative, one could assert that it is okay to buy/sell children, I guess.

      • Julie I still take issue with the fact that you say you don’t think genetics should be the basis for determining who is a parent upon birth – yet you say 40 weeks of pregnancy is = to 40 weeks of taking care of a child after birth. So for you parental performance begins at conception, and if you believe that then you could not discriminate against women forced to conceive their offspring outside the womb due to disability can you? You still never answered my question about discriminating against what the disabled woman needs to do in order to take care of her unborn child and what an able bodied woman needs to do to take care of her unborn child. If you say unborn child care in the womb is no different than child care out of the womb as far as earning the right to be called a parent (and you most certainly have said that), and you start unborn child care 40 weeks prior to birth (and you most certainly do) and 40 weeks prior to birth is the moment of conception in an able bodied woman – what you are saying is that disabled women simply loose the right to automatically be considered a parent to their child at birth if they seek assistance with that unborn child care either via a surrogate’s womb or an incubator. Your saying that if a woman cannot perform that 40 weeks of care on her own unaided by another woman or medical intervention – she fails, she fails and can’t be named mother of her own child upon birth. If pre-birth and post birth care-giving are no different as you say they are not – then how is it different than hiring a baby sitter when you can’t take care of your own baby because you are ill, or have to go to work? The baby sitter is hired at your request and no rights are relinquished as with egg “donation”. If the egg “donor” has to sign over her parental rights to the surrogate who is paying for the right to give birth, then why on earth would a woman paying for a surrogate to help deliver her baby loose her parental rights if she never signed them over like the egg “donor”?

        Your unborn child care performance goes too far back not to be considered a genetic basis for parenthood – right back to the moment of conception. The fact that its so illogical – that is what you are working out on this blog right? Because you are looking for a way a woman can have the right to her own offspring without allowing men to have that same right – pregnancy seems like the answer I see where you are going with it, but you will discriminate against some women. Those women may be in the minority, but that’s who anti-discrimination laws are intended to protect those in the minority whose circumstances are so rare as to be of little consequence to the majority. In this instance if you were to get your way I would say that not only would your new laws discriminate against certain women, your new laws would discriminate against certain women who have a disability. They like their able bodied counterparts are capable of reproducing (as is their right) yet only the able bodied can be named as mothers of their offspring at birth. Bad bad. Not fair.

        • Many questions here. Let me try to pick off one or two. (I know that isn’t wholly satisfying, but I think it might make for clearer discussion.) I’m going to start with the questions about disabled women.

          I’m also going to start rather far back from the topic: In general, I understand discrimination to be treating people who are essentially the same with regard to the thing at issue in ways that are different. Thus, giving library cards to women and not to men (or vice versa) is discrimination–because men and women are the same with regard to library usage. Giving library cards to local residents and not to out-of-towners might not be discrimination, though, because local residents pay taxes that support the library and out-of-towners do not. (You could also say that if this is discrimination it is discrimnation that can be justified, but I’m not sure I like that formulation.)

          So with that in mind: I think there is a signficant difference between being pregnant and not being pregnant, at least with regard to a child at the time it is born. Thus, when it comes to parentage at the time of birth, I think you can treat people who have been pregnant and given birth differently from those who have not. It doesn’t matter to me why one person has given birth and the other has not–whether it is the result of a disability or being male is beside the point for this purpose. In the language of law, I’d say the person who gives birth is not similarly situated to the person who does not give birth and therefore I would assert it is permissible to treat them differently.

          I realize that this can create hardship for those who are not able to become pregnant/give birth, and that this sort of inability causes pain. But I don’t think a commitment to equality necessarily means that you ignore all differences between people. Here’s a far more trivial example: For many years my eyesight was so bad I couldn’t qualify for a driver’s license. However much this inconvenienced me, it’s not it’s not unreasonable discrimnation. People who cannot see well are reasonably denied driver’s licenses. There’s a clear connection between the differential legal treatment and some observable differnce in the real world. (By contrast, denying women driver’s licenses would clearly be problematic discrimination.) I don’t think a commitment to rights for those of differing abilities means that I cannot take account of what I would call real differences. And for the moment I’m going to assert that being pregnant/giving birth is just a difference.

          I’m not sure I want to say that pre-birth and post-birth care are the same. They are both care, so there’s commonality. But pre-birth care cannot be delegated. Post-birth care can be. As you rightly say, I’ve taken the position that care counts, and so there may be some tricky questions here about differently abled people and post birth care. I think it’s hard for me to consider all the possible issues in the abtract. But there are many aspects of child-rearing that are not hands-on, and more and more of them as children age. Can a person without the use of their limbs care for a newborn? I’m not sure. Can she/he care for a ten year old? Yes, without a doubt. As I say, I do see hard questions for me here.

          I think I’ll stop there for now–I hope I have at least made a start.

          • Yes and thank you for making a start of it. I’d like to challenge your position a bit further when I have a moment to collect my thoughts and I hope you understand that its all in the spirit of knowing what your goal is and that I don’t necessarily oppose it – I just think there are many things to be taken into account.

          • I want to start by saying that I changed my mind and I no longer believe that you want to advance your agenda at the expense of anyone’s right’s and I no longer believe that you set aside certain people as sacrificial lambs in the fight for lesbian family equality. I think you are working out the kinks in your legal theories and that your position is evolving through the feedback you get on your blog. My opininions have changed since reading this blog – and you could point to things I’ve said in the past to make a point as I am about to do and my response would be that my opinion has changed since then. And with that…

            You said (in a nutshell) a woman that can’t give birth is different than a woman who can give birth and acknowledging the difference is not discrimination. I don’t disagree with that. In fact I think your point about not issuing out of town-ers library cards is totally valid and not discriminatory. But I like your blind driver analogy better because that one I can poke holes in!

            Sight is essential to driving the way conception is essential to pregnancy. I don’t think its discrimination to say blind people should not have a legal right to drive a car. I also don’t think it’s discrimination to say women who can conceive but not gestate should not have a right to force someone else to gestate for them, nor do I believe it’s discrimination to say that a woman who cannot conceive has a right to gestate an embryo conceived by another woman. You have a right to gestate an embryo you conceive – absolutely, typically it simply happens inside a woman’s body on its own, but when it occurrs outside her body in a petre dish, I say absolutely she has a right to gestate her own embryo (if she can pay some one to implant it in her – she has no right to free elective fertility assistance). That same woman who has a right to gestate her own embryo does not have a right to make another person gestate it for her – but I think she has the right to find someone who is willing to do it, for free or for pay (yucky as that is). I don’t think any woman has a right to the fertile egg or fertilized egg of another woman, but I do think she has the right to seek out a woman who will allow her own offspring to be gestated in another woman’s body. I think she has a right to seek out a woman who is willing to reproduce by having her eggs removed and fertilized with sperm from a man she does not know either for free or for pay. I think again, my word of the week is consent. And a person who consent to something necessarily has authority over the the thing being consented to – whether or not to reproduce, and with whom (and hopefully with that person’s consent as well), whether or not to gestate an embryo you created yourself, and ultimately whether or not to raise your own offspring – consent to conceive and consent to allow gestation of your embryo by someone else and consent to allow another person to raise your offspring. Any attempt to circumvent that authority to consent any act that obviscates the right of a person to refuse to conceive refuse to allow their embryo to be gestated in another body or refuse to give up the right to raise their offspring is an abuse of basic human rights and civil liberties in my mind.

            You mentioned that discrimination exists when two people similarly situated are treated unequally. You said a person who does not give birth and a person that does are inherently different and therefore to treat them differently is not discriminatory.

            According to your definition of discrimination (which I like very much) One fertile woman conceives in her body and embarks on the journey of care-giving to her embryo prior to the birth of a child which is hers and she will be the child’s mother upon birth. The other fertile woman conceives outside her body and embarks on the journey of caregiving to her embryo prior to the birth of a child but she is told the only way her child will survive is if its gestated by another woman or taken from her body early and incubated. I do definately think that your legal theory ends up treating two fertile women differently based on how they care for their embryo before its born.

            Which brings me to prebirth caregiving and the fact that you have previously said that caring for a child prior to birth is no different than caring for a child

            “So a woman who gives birth has provided everything the developing embryo needs, 24/7, for nine months or so. That’s an incredible commitment, to my mind. It counts, just as spending nine months providing sole care for a newborn would count in my mind. ”

            My point about that is if its like caring for a newborn then the parental caregiver can dispatch his/her care giving duties without loosing his/her status as a parent. Sometimes you have to go to work, or your sick or you have no arms (hard to burp a baby with no arms).

            post birth.https://julieshapiro.wordpress.com/2009/06/14/mistakes-in-art-whats-the-remedy/
            The clinic offered free IVF services–essentially offering to create a replacement embryo. Is that a complete remedy? Of course, this line of reasoning would be completely objectionable if you tried to apply it to a case involving the death of a child–at least, I think it would. But it seems to me that embryos are quite different from children.

            Regarding my point that I think denying a woman the right to be recognized as the mother’s of her own offspring if delivered by a surrogate or if gestation was completed in an incubator would be discriminating against a perbecause her body is disabled such that she cannot safely gestate and deliver her offspring without the aid of either a surrogate or incubator. they were physically incapable of maintaining their pregnancies and giving birth”People who cannot see well are reasonably denied driver’s licenses. “

            • that last quote of yours was clipped in by mistake

            • here is another quote where you say pre-birth care is the same as post birth care. Its from a comment you wrote on Feminist Law Professors ” Instead, I’d note that for the forty weeks of pregnancy the pregnant woman provides for ALL of the developing entities needs. Yf has referred several times to the provision of nutritution, and that’s part of it. But more important to me is that whatever the needs of the developing fetus are, all of them are fufilled by the pregnant woman (alone). If from the moment of birth one person cared for a child entirely, 24/7, providing everything they child needed, I’d likely consider that person to be a parent at the end of that time. Because to me, this is what it means to be a parent–to care and nurturance for the child.”

              Its just – my babies were born very premature, they were taken c-section. I had no labor or delivery and they completed their gestation in the hospital. The fact that I could not complete pregnancy. I don’t think it should take away my entitlement to motherhood. I would feel hurt and discriminated against. Really. That’s not your intent. It would be the reality for a minority of women if the legal framework you talk about was real.

          • I want to start by saying that I changed my mind and I no longer believe that you want to advance your agenda at the expense of anyone’s right’s and I no longer believe that you set aside certain people as sacrificial lambs in the fight for lesbian family equality. I think you are working out the kinks in your legal theories and that your position is evolving through the feedback you get on your blog. My opininions have changed since reading this blog – and you could point to things I’ve said in the past to make a point as I am about to do and my response would be that my opinion has changed since then. And with that…

            You said (in a nutshell) a woman that can’t give birth is different than a woman who can give birth and acknowledging the difference is not discrimination. I don’t disagree with that. In fact I think your point about not issuing out of town-ers library cards is totally valid and not discriminatory. But I like your blind driver analogy better because that one I can poke holes in!

            Sight is essential to driving the way conception is essential to pregnancy. I don’t think its discrimination to say blind people should not have a legal right to drive a car. I also don’t think it’s discrimination to say women who can conceive but not gestate should not have a right to force someone else to gestate for them, nor do I believe it’s discrimination to say that a woman who cannot conceive has a right to gestate an embryo conceived by another woman. You have a right to gestate an embryo you conceive – absolutely, typically it simply happens inside a woman’s body on its own, but when it occurrs outside her body in a petre dish, I say absolutely she has a right to gestate her own embryo (if she can pay some one to implant it in her – she has no right to free elective fertility assistance). That same woman who has a right to gestate her own embryo does not have a right to make another person gestate it for her – but I think she has the right to find someone who is willing to do it, for free or for pay (yucky as that is). I don’t think any woman has a right to the fertile egg or fertilized egg of another woman, but I do think she has the right to seek out a woman who will allow her own offspring to be gestated in another woman’s body. I think she has a right to seek out a woman who is willing to reproduce by having her eggs removed and fertilized with sperm from a man she does not know either for free or for pay. I think again, my word of the week is consent. And a person who consent to something necessarily has authority over the the thing being consented to – whether or not to reproduce, and with whom (and hopefully with that person’s consent as well), whether or not to gestate an embryo you created yourself, and ultimately whether or not to raise your own offspring – consent to conceive and consent to allow gestation of your embryo by someone else and consent to allow another person to raise your offspring. Any attempt to circumvent that authority to consent any act that obviscates the right of a person to refuse to conceive refuse to allow their embryo to be gestated in another body or refuse to give up the right to raise their offspring is an abuse of basic human rights and civil liberties in my mind.

            You mentioned that discrimination exists when two people similarly situated are treated unequally. You said a person who does not give birth and a person that does are inherently different and therefore to treat them differently is not discriminatory.

            According to your definition of discrimination (which I like very much) One fertile woman conceives in her body and embarks on the journey of care-giving to her embryo prior to the birth of a child which is hers and she will be the child’s mother upon birth. The other fertile woman conceives outside her body and embarks on the journey of caregiving to her embryo prior to the birth of a child but she is told the only way her child will survive is if its gestated by another woman or taken from her body early and incubated. I do definately think that your legal theory ends up treating two fertile women differently based on how they care for their embryo before its born.

            Which brings me to prebirth caregiving and the fact that you have previously said that caring for a child prior to birth is no different than caring for a child

            “So a woman who gives birth has provided everything the developing embryo needs, 24/7, for nine months or so. That’s an incredible commitment, to my mind. It counts, just as spending nine months providing sole care for a newborn would count in my mind. ”

            My point about that is if its like caring for a newborn then the parental caregiver can dispatch his/her care giving duties without loosing his/her status as a parent. Sometimes you have to go to work, or your sick or you have no arms (hard to burp a baby with no arms).

      • Certainly it is problematic to buy and sell eggs if one believes as I do that people have a right to raise their own offspring. However I do believe that people have the right not to raise their own offspring which is something I have come to believe as a result of reading your blog Julie. I believe that people that sell their eggs and sperm have a right not to raise their own offspring and that they recognize their right to raise their own offspring when they waive that right and sign the waiver of their parental rights upon the sale of their sperm and eggs respectively. I believe there is a problem with that because it is done prior to birth and that people who sell their eggs and sperm should have to sign these waivers possibly again after the birth of each of their offspring to make it truly enforceable . Its my understanding that this pre-birth waiver has been challenged more than a few times by persons attempting to gain child support from the person that sold the sperm or donated it willingly and that the seller/donor was made to pay.

        As for morals and ethics, morality is difficult to define and more difficult to legislate. Personal freedom and accountability for ones actions is a better path to making laws that treat people fairly. Being a lawyer you can certainly see the legal loophole to selling and buying eggs and sperm – you are selling your genetic heritage to someone looking for those qualities in a child to raise – you are selling a woman the opportunity to be pregnant and give birth, you are selling experiences but not children and not even parental rights. This model involves some risk – like the person selling the eggs or sperm might change their mind right up to the birth of their offspring, but I think that risk exists even under the current circumstances. Yes I find the whole thing morally reprehensible however I would not seek to take away the right of a person not to raise their own offspring, I do however seek to make it illegal to do so without documentation of that transfer of rights in a court of law. I don’t think anyone should undertake the role of parent without the full knowledge and consent of the the person who conceived the child and to protect non-biological parent’s rights that knowledge and consent must occur in a court of law.

        • There’s no question in my mind that people can choose not to raise their children–or to be more precise, that a legal parent can step away from that role. But they cannot be paid to step away–that’s selling a child, and I do draw the line there (as I think many people do.) I suppose what that means is that the stepping away cannot look like a commercial transaction–like a contract. If the egg/sperm make a person a parent I do think you get into a whole lot of complicated questions about when/how they can give up their parental rights. Much easier if one says there are no parental rights attached to gametes. Still, I wouldn’t argue in favor of this view on the ground that it is easier to manage.

      • Also – be sure that most children who find out that they were raised by people who bought sperm and egg to create them – they will indeed have the sickening feeling that their real parent(s), accepted payment to walk away from them off without regard to who the people raising them would be. Because that’s the truth. The truth is ugly and the law should not help people hide the truth.

        • Here is where I think we have real disagreement. I’m not at all convinced that most children who find out they were raised by people who bought sperm and egg will find that so hard to deal with. I agree that kids ought to be told the truth with regard to things like this–with the caveat that “the truth” may mean different degrees of detail when children are different ages. But I don’t accept that the truth is necessarily ugly. Clearly not everyone finds it so.

  6. The way Lesbians will win the right for an unrelated woman to be named as “the other” parent of her lesbian partner’s offspring, is by being fair to all people capable of reproducing themselves, regardless of race, color, creed, gender, sexual preference, or physical ability. Transparency and consent will be key. The same can be said of heterosexual couples wining the right for an unrelated partner of either sex being named as “the other” parent of their partner’s offspring – transparency and consent.

    The path to male/female equality in obtaining non-biological parental rights will be forged by altering existing laws and drafting new ones predicated on a foundation that understands transparency and consent are essential.

    • I don’t think I disagree with any of this. I would not advocate for some special standard for lesbians or unmarried people. But I also wouldn’t advocate for a special standard for married people. Thus, I find tying parentage to marital status (which is actually a common organization of the law) problematic–and that’s true even if same-sex couples could marry.

      All of this–coupled with the stuff about pregnancy that we’ve discussed some–does leave me with very hard questions about whether a child can have two parents at birth and, if so, how. I’ve just begun really thinking about how to tackle that one. But I will try my hardest to ensure that whatever the answer is for lesbian couples, it’s the same as the answer for non-lesbian couples. I trust all you here will keep me honest on this one.

      • I think marriage as a basis for parenthood must be thrown out the window entirely. It is not at all transparent and undermines consent.

        • This is such a interesting idea–I’ve been giving it some thought myself. I think it is widely agreed that it is unfair to treat children differently depending on whether or not their parents happen to be married. Once, of course, we did this an illegitimacy was a burden a child would carry his/her whole life. (See, for instance, “Bastard Out of Carolina”.) But if you agree we shouldn’t treat differently, that doesn’t tell you exactly how we should treat them. There are two options–treat children of unmarried parents as though they were children of married parents or treat children of married parents as though they were children of unmarried parents. Actually, there’s a third option, which is to treat all children in some novel way–not the way we currently treat children of married parents, not the way we currently treat children of unmarried parents. Rather than exploring these options, a lot of people simply assume we should use married parents as the standard. But I think that’s open to question. (And then, of course, there are children of single parents….)

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