Does Pregnancy Matter to Parental Status?

At various times in the past there’s been discussion here about the legal significance of being pregnant/giving birth.   (You can use that one posting to find links to others, or just browse under the tag “pregnancy.”)   It’s in light of that discussion that I found this post from yesterday’s Motherlode blog quite interesting.   

 In general, I’m inclined to believe that having been pregnant with and given birth to a child ought to count for something when it comes to determining parentage.   I won’t go so far as to say that a woman who gives birth has already been a mother for nine months–at least in large part because I don’t want to assert that there is a child before birth.    But the woman has done something that, it seems to me, gives her a unique relationship to the resulting child.   If a child is to have a parent or parents  at the time the child is born, how can the woman who gives birth not fall into that category? 

It seems to me that the research discussed in the Motherlode post (and the book that is the subject of the post and the Time Magazine article) all suggests that while a woman is pregnant she is engaged in a dynamic process that is very much akin to the nurturing/caretaking process that follows the birth of a child.   She’s not simply a container or a vessel. 

I have consistently (I hope) advocated for some sort of de facto or functional parent test.    I’m inclined to respect the relationships formed between an adult acting as a parent and a child and also to recognize the labor and commitment shown by the adults.   (This is over-simplified, but you can find many discussions under the “de facto” or “functional” tags.)    I’m therefore inclined to want to give some recognition to the labor and commitment demonstrated before the child is born.   Perhaps there is some justification for ignoring this contribution, but I don’t quite see what it is. 

I recognize there are all sorts of perils and dangers here and that makes me proceed with caution.  I also stand ready to revise my opinion upon further thought.  But at least for now, thinking about this most recent set of stories, I think the fact of being pregnant/giving birth ought to have legal meaning–which is to say, I think when a woman gives birth to a child, she ought to be recognized as the legal parent of the child.


15 responses to “Does Pregnancy Matter to Parental Status?

  1. Of course she should be considered the child’s mother – so long as she created the baby with her own body. You would not want to call her the mother of the baby if she came by being pregnant through some sort of stealth act of theft or laboratory error.

    As long as we are talking about women and their maternal relationship with the child, of course she is the mother. If however a woman is unable to carry her pregnancy to term and a gestational carrier has to be used, all bets are off. Pregnancy is evidence of the reason a woman is a mother – but is not the reason in and of itself. Its just usually indicative of the fact that the woman conceived a child.

    How she became pregnant is far more important in determining whether she is a mother – at least these days. She’d better have permission from the mother to be carrying that unborn child if she is not the mother.

    • Surely it will come as no surprise that I won’t accept your caveat. Indeed, the main point of the post is to argue that it is the fact of being pregnant/giving birth that entitles her to recognition. I don’t see why the manner in which she became pregnant makes any difference.

      I do understand that you focus on different things–and in particular on the genetic relationship. I think (though you should correct me if I am wrong) that to you it makes no difference who gives birth to the child. If a woman is genetically unrelated to the child she gives birth to she is no more the mother of that child than I am.

      I think it is important to be clear about our disagreement here. While there will be individual cases where we would reach the same outcome (where a woman gives birth to a child she is genetically related to) we get there by rather different roads.

  2. I would consider the pregnant woman the mother but only if the genetic mother is unknown, unavailable, or unwilling to fill the parental role.

    • saramaimon
      if the woman who was maternally related to the child could be identified (even as an anonymous donor) then do you think her permission and relinquishment of parental authority over her offspring ought to be fomally documented by the state as it would be for adoption? Or do you think its ok to record the woman who gave birth as if she created the child herself and is maternally related.

      • I would dispense with the formal recording of the fact. In absence of a competing claim to parenthood, the pregnancy is enough to create a presumption of motherhood, even more than marriage is enough to create a presumption of fatherhood for the man. No additional paperwork is necessary.

        I realize that you have objected to applying a presumption of parenthood to anyone. However, if one of your concerns is huge numbers of offspring creating a possibility of incest, that is less of a concern with an egg donor who will have much fewer children than a sperm donor.

        • I suppose your point is correct about fewer egg donor babies, but why is it ok for that woman to lie when everyone else has to tell the truth? That just bugs me that people can go around pretending that way.

          My overriding concern is regulating ART, not by stopping it (that is a pipe dream) but by documenting the hell out of it so that people get to lie on a technicality because nobody is checking.

          • I don’t think people are obliged to tell this particular truth (that they used third party gametes) to everybody in the world. It’s one thing to say people need to be honest with their kids. But failing to tell the neighbors the details of conception hardly seems like lying to me. Instead I’d say it’s exercising one’s right to privacy. It’s simply none of the neighbor’s business how a child was conceived. If the neighbors therefore make false assumptions I think I’m fine with that.

    • What I think this means is that we disagree. I take it if the genetically related woman was known, available and (or?) willing, you’d select her as the legal mother? I would not. Just to be clear on this.

      • I thought you support the legalization of surrogacy? Isn’t that a contradictory position?

        • I don’t think it is. I would allow a surrogate to be paid for her time and effort. But (in my own idiosyncratic view) she would retain the right to change her mind and keep the child when it was born. (It might be that if she did that, she’d have to return the money.) I think this makes the relationship between the surrogate and the IPs very important–it’s one they all have an interest in. This seems to me a good thing.

          From this perspective surrogacy would be a bit more like open adoption.

          FWIW, I think it is actually quite rare for a surrogate to change her mind. It’s more common for the IPs to have second thought (a fact I find surprising and troubling.)

  3. I think its important to make sure that the State’s records reflect the fact that the child is not the offspring of the woman that gave birth so that records to not inaccurately show that she reproduced when she did not. Also if the child is the offspring of a woman who sold or donated her genes for the purpose of reproduction, I think its important for the state to have records showing that the donor voluntarily sold or donated her genes for the purpose of creating her offspring anonymously with customers of the clinic that purchased her genes. Its also important that the state have a copy of the waiver she signed as the mother of her future offspring where she agrees to relinquish her parental authority. I think she should relinquish to specific parties like the male with the paternal connection and his partner whether or not that partner gives birth (I’m just throwing that one out there could be that she relinquishes to the woman who gives birth and the man with the paternal connection)
    The point is that the relinquishment of parental rights by people selling their gametes is happening its just not getting told to the state that records everything officially. I think if a woman gives birth to a child that was conceived with the egg of a clinic patient instead of a donor, by mistake, the absense of that waiver of parental responsibility is HUGE! There are urban legends (i don’t know if its true) about women in other countries being forced to give up their eggs. Certainly women buying eggs want to know that they obtained them fair and square from women who voluntarily allowed their eggs to be taken and who voluntarily relinquished their parental rights.

    My fear is that people like to say there is nothing wrong with creating a family with DE, but they might not be hip to having records show that the child had a mother who relinquished her rights same as in any adoption. I think most women that deliver DE babies want the records to appear as if there was no other woman with a maternal relationship to the child who signed away her rights.

    • I think it might be possible to argue that genetic lineage should be fully disclosed (via a certificate or other document of some sort) and yet the genetic forebears should not be legal parents. Indeed, I think I might advocate for this view–although I have grave concerns about privacy with regard to the first document. I’m not sure that information should be available to anyone but the child concerned, the child’s parents, and perhaps the other identified adults. The key point I want to make here is that you can make a case for disclosure of the genetic lineage on a number of grounds that don’t have anything to do with whether the genetic forebears have legal status as parents.

  4. I once sarcastically suggested that the state State gather and shuffle the babies born every week so that every woman that gave birth that week would be sure to bring home a genetically unrelated child. At least that way it would be fair, that way everyone would know that the woman named a s child’s legal mother is NEVER maternally related

    Julie said she understood why parents of children switched at birth would want to correct the error and get their kid back (if not too much time had passed). I think most parents in switched at birth cases would want to swap back under those circumstances. I don’t see switched pre-birth as any different, since in that instance there is not even a baby to form a relationship with yet. I bet people have situational ethics on this one, sure they’d give the baby back to its parents so long as they’d get a baby to relplace it. What if it was just a one way screw up and not a switch? I think situational ethics are bad. You should give the kid to its parents even if there is no 50 50 swap to fill your empty arms

    • I once sarcastically suggested that random baby assignment as well, in response to the people who claimed biology didn’t matter. It would save lots of money if they didn’t have to keep track of whose was whose.

  5. Was the Attleboro cult woman a parent, when she gave birth locked up in a hospital so the state could find a safe home for the baby? The state had severed her parental rights before she even gave birth, which happened while she was on trial with her husband for purposefully starving a previous child to death. Neither her marriage, nor her pregnancy, mattered to her parental status, only the best interest of the child.

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