This is yet another post in my continuing exploration of surrogacy. The thread starts here and you might want to scan that and the following posts to get up to where I am now. (I’ll try not to repeat myself too much, but there’s a certain amount of gathering momentum that is necessary.)
Perhaps this time I’ll start by sketching the scenario I’ve been thinking about. A woman agrees to be a paid surrogate for a heterosexual couple. I’ve figured out that I have no theoretical objection to paid surrogacy. But I worry about how we will deal with the inevitable cases where the agreement breaks down. In particular, what do we do if the surrogate changes her mind and decides she wants to keep the child?
You can ask and answer this question on (at least?) two different levels: theoretical or pragmatic. I think my last post muddled these two. But in either case, it seems to me that you must begin by assessing the basis of each person’s claim to be a parent.
Recall that I want to treat what’s called gestational surrogacy the same as what’s called traditional surrogacy, because I don’t want to place determinative value on genetic relationships. This being the case, the two intended parents (who here happen to be male and female but who need not be) have exactly the same claim to parentage–they have contracted to become parents. It seems to me this means their claims should be treated the same.
The surrogate bases her claim on the performance of pregnancy and birth. (Remember, I am not giving credit for genetic linkage.) This is, to my mind, a specific instance of a functional or de facto approach to parentage.
Of course it is possible to choose between them. You can either entirely discard one basis (i.e. reject any contractual arguments out of hand) or you can create a hierarchy. You could construct a set of principles that prioritized one basis for a claim over the other. (And in my ideal world, you would then apply those principles more generally, leading to various results in a range of other circumstances. I’m fond of consistency.)
But last time, reasoning mostly pragmatically, I think, I wondered if you had to choose between them. This means that if you accept both bases for claiming parentage (and let’s just assume for the moment that you (or I) do), then all the people involved are parents. You now have three parents and a traditional custody fight between them. A court would figure out what division of residential time and decision-making authority would be best for the particular child.
Still on a pragmatic plane, you can wonder about whether this is a good solution. It gives none of the parties exactly what they want (because while they all want parentage, they also want the opposing party excluded from parentage) and it might leave the child living between two households. But these very features might also encourage all the parties to work hard (together) to find a more workable solution. It gives some power to all parties but absolute power to none. By contrast, the hierarchy approach will create much more obvious winner and losers.
All of that is thinking pragmatically, but a good deal of the discussion/thinking on this blog is more abstract and theoretical. Is there are theoretical justification for doing away with the hierarchy of parenthood?
I suppose I might just as well ask the question the other way around–is there a theoretical justification for having a hierarchy of parenthood. Oddly, I don’t think I’ve asked this question before. I think I’ve always assumed that there should be such a hierarchy, perhaps because historically there has been.
I do think there is a question worth asking here. Once one has accepted a particular basis for claiming parentage, why would you deny a person relying on that basis a claim because someone else had a “better” basis? This, it seems to me, stems from our assumption that parentage is a limited commodity–perhaps from an unthinking assumption that the correct number of parents is two.
I’m going to need to think about this a bit more, but I am for the moment inclined to think that my attachment to hierarchy might be misplaced. I suppose what I ought to do next is think a little about the places where hierarchies do their work and how it might look if we didn’t use them.