Adoption, Surrogacy and Money: Drawing Lines

The last couple of posts about the baby-selling ring have made me think (again?) about the lines we draw between surrogacy and adoption and the way this changes the role money can play.   I wanted to lay this out separately and then see where it leads.

Let’s assume you live in a place that allows compensated surrogacy.  (You could think of California here, but remember, not every state does allow compensated surrogacy.  If a state does not permit it, then this whole discussion goes nowhere–there are no lines to draw.)   You want to have a child, but you cannot be (or don’t want to be) pregnant.   Two young women live across the street from you–let’s call them A and B?

You know that A is pregnant but does not want to raise a child.   You can discuss adoption with her.   You and A could enter into an agreement with A that you would adopt her child once it was born.   You could pay A’s expenses during the pregnancy–medical care, housing, maternity clothes, and so on.   But you cannot pay compensation apart from expenses.

A lives next door to B.   B is not pregnant, but is capable of becoming pregnant.  You can discuss surrogacy with B.   If you reached an agreement, B would become pregnant on your behalf.   Think of it as commissioning a pregnancy.   (Let’s not worry about where the genetic material would come from here as that’s a whole other issue.)    As with A above, you could agree to pay all of the expenses of the pregnancy.  But in addition (and this is where I want to focus for the moment) you could also compensate B.   What I mean is you could offer to pay her $20,000 (or any other sum, come to that) on top of her expenses.

There’s a lot that is similar in surrogacy and adoption, so the question is what differences explain the different role we allow money to play?   I want to offer two totally different ways of thinking about this.

First–pragmatics.   Surrogacy is commissioned pregnancy.   No excess children are created, because the intended parents are in place before the child is created.   Paying the surrogate surely makes it easier to find surrogates, but it doesn’t result in unwanted children.  (At least it doesn’t when everything works out.)

If you could compensate women who were giving children up for adoption, it’s possible that women would get pregnant on spec–by which I mean, in the hopes that a willing adoptive parent would come along.   This seems like it is courting disaster.   There would clearly be a risk of excess inventory (as it were) only instead of luxury homes, it would be real people.   The way to avoid this problem is to say that you cannot be compensated when you are already pregnant.

This isn’t a particularly principled justification for drawing the line.  It is, as I said, a pragmatic one.    (I don’t say this to suggest it isn’t sufficient.  Sometimes pragmatic reasons are good enough.)   But there is also at least one somewhat more principled approach.

Let’s assume we all agree that it is wrong to buy and sell children.   A is clearly going to be the mother of the child who she will eventually give birth to.  That’s the way the law is set up.   If she accepts money and in exchange agrees to give up her parental rights in favor of the adoptive parents, she has effectively sold the child.  (She’s sold her right to be parent, which amounts to the same thing.)   Since we’ve agreed you cannot sell children, she cannot be allowed to do that.

By contrast, if B becomes a surrogate, her status as a parent is fuzzier.   If she is genetically unrelated to the child, she may not be a legal parent.  If she’s not a legal parent in the first place, then she isn’t’ taking money in exchange for giving up her parental rights and she isn’t selling the child.   Therefore we can let her take the money.

I do think the principled explanation for the line drawn may depend on defining the surrogate’s rights to legal parentage before and after the transaction.   If she begins as a legal parent and ends as not a legal parent, then it seems to me it does look like selling a child.   If she begins and ends with the same status–either legal parent or not legal parent–then it doesn’t look like selling a child.

I think that’s it for now.  Food for thought, for me if no one else.


2 responses to “Adoption, Surrogacy and Money: Drawing Lines

  1. As someone who was previously a gestational surrogate and as a law student graduating in December, I am very intrigued by our country’s various laws surrounding surrogacy and adoption. In fact, it’s this distinction that I wrote my note on for law review.

    I really enjoyed reading this article and am very happy to have found your blog. I’d like to share a short little comment about my thoughts on the subject with you, which differ slightly from your own.

    To me, “legal” parental status of a surrogate has nothing to do with genetics. (And in many states that allow surrogacy, this is true as well.) Whether serving as a traditional or gestational surrogate, you are entering into an agreement to carry a child for the sole benefit of another couple.

    Whether that child is conceived from the surrogate’s own genetics, from donor genetics, or from the intended parents’ genetics, it’s the purpose of the conception which distinguishes the rights of the woman carrying her surrogate child from the woman carrying her child and not the genetic materials by which conception took place.


    • Thanks for joining the conversation (and feel free to send along a copy of your note if you like). I should be clear that I don’t think the genetic connection should have any relevance either. This is consistent (I hope) with my broader position that genetics is not what should define parenthood. I do think some state’s law (I’m thinking particular of CA) draw a distinction between gestational surrogacy (where the surrogate is not genetically connected to the embryo) and traditional surrogacy (where she is). But not all states do. Nor do all countries–I don’t think the UK draws this distinction.

      All that said, I think se do disagree here, because I wouldn’t make intent the defining factor either. That’s discussed at greater length elsewhere on the blog and will doubtless come up again. For now, I just wanted to note this.

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