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.