Surrogacy and the Hierarchy of Parentage

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.

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5 responses to “Surrogacy and the Hierarchy of Parentage

  1. Why can’t you have more than two parents? Adoptees have always had four parents – albeit differnent roles and for some never to be known, but parents just the same.

    Moving out side of the box brings amazing clarity sometimes…more parents to love and provide what a child needs – who could ask for more?

    Remember that at one point everyone thought the earth was flat…thankfully that was challenged.

  2. A mother learns that she can no longer safely care for her gravely ill child at home; if he is to survive his illness all his basic needs must be met in a hospital setting where he can receive round the clock care and supervision by medical professionals. With any luck her son will be well and back at home for his birthday before the end of the year. To save her childs life the mother agrees and turns her child over to the doctors and nurses that will perform her parental caregiving tasks until he is well enough to return home to her. Should the hospital staff be able to claim they have parental rights just because they performed the mother’s duties for her when she could’nt? Does the fact that she dispatched her parental caregiving duties to the hospital mean she must give up her parental authority over her child? What if it were the Mother who was hospialized for an extended period and her child was cared for during that time by a family member, neighbor, friend or nanny – have those people earned the right to be considered the child’s parent by virtue of their performance? Does doing the job a mother should be doing really give them a right to take someone elses child away from them?

    You have so frequently stated that labor, delivery and the 40+ weeks of pregnancy that precede them are parental caregiving duties akin to 40+ weeks of care after the child is born. Performance of those caregiving duties is what you say qualifies a woman to be granted exclusive parental authority over the child she gives birth to. That means your position is that a woman’s performance of parental duties begins at the moment of conception when her egg is first fertilized. What I am hearing you say seems to me to be blatent discrimination against physically disabled women who at once have conceived but are told that their unborn child will not survive to be born if she attempts to undertake the pregnancy herself and so you would penalize her by taking away her parental rights if she retains a woman to perform her caregiving duties up to the point of birth when the child can be returned to her care? Now what really steams me is this – clearly Women have authority over whether or not to reproduce, they have control over their egg before it is fertilized and after and as it grows into a seperate individual because a woman’s offspring is an extension of her own body she reproduced to create it and no one can just come and steal her offspring from her. She must give her permission for another person to perform caregiving duties temporarily or permanently as is evidenced by the fact that women who sell their eggs to fertility clinics are made to sign away their rights to any of her offspring conceived with her eggs for the clinic’s clients. And she is signing those rights away because she has them to begin with. The mother’s existence cannot be erased she is there from the begining just like you said when you were saying there is no doubt who the mother is when a child is born because she has been there 40 weeks from the beginning – I say just go all the way back to the begining of that 40 weeks and you will find the woman with original rights and original parental authority.

    Everyone knows a woman has parental authority over her offspring thats why egg donors have to sign away their rights to their offspring that they will not be gestating or delivering – so how is it that without that kind of waiver of rights a gestational carrier can come in and assert herself to be the mother of a child she gave birth to but did not create? Don’t forget you are the one that wants to say a womans parental care taking begins at the moment of conception the fertilized egg belongs to the body that produced the egg and it will be that woman’s right to determine how to safely grow that egg into a person. How could you suggest that women should loose their rights just because they hire a babysitter for the pregnancy part?

  3. Traditional Surrogacy – is a horse of a different color: if she is paid for sex to conceive the child – its against the law unless she is in nevada. I don’t really agree that prostitution should be against the law, but you would basically be starting with an unenforceable contract requirement. Beyond that she is simply a woman conceiving a child with a married man – all perfectly legal whether done in a bed or petre dish, however she is the mother of the child she had authority over the egg and chose to fertilize it and performed all thru pregnancy – she is the mother and she has a right not to raise her offspring once its born so she should have to give it up for adoption and the man’s partner should have to legally adopt the child in order to claim to be its mother. Certainly any private contract for the exchange or her parental rights cannot involve money and should not be done under the terms of a private contract – its just way too close to human trafficing for my taste,

  4. At the risk of repeating my comment on a similar post, I think we need a hierarchy because no single criteria is complete, yet they are not all equal.

    Just throw all the feuding parties into one big parental pot does NOT seem to be a healthier option, in my view.

    • I’m glad you did repeat it–I think I missed it before, or maybe it didn’t register. I am inclined to agree that no single criteria is complete, but I need to think further about that. Ditto the big parental pot point. I think this really does frame the question nicely. (Which is not to say I have an answer just now.)

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