Why The Path We Take Matters: New Surrogacy Case From Canada

Thanks to a comment on the last post, I came upon this report of a very recent decision in Saskatchewan.   John and Bill (all names are pseudonyms) are a gay male couple who wanted to raise a child.   John provided sperm that was combined with an egg from an anonymous third-party.   The resulting pre-embryo was transferred to Mary and in August 2009  Mary gave birth to Sarah.

This was a case where all went according to plan.  Thus it was intended by all parties from the beginning that John and Bill would raise the child and everyone stuck with that understanding.   So it’s gratifying and not terribly surprising that in the end John and Bill are recognized as the parents.    There are no other competing candidates.  (This distinguishes it from a lot of surrogacy litigation, where there are either too many people competing for the title of legal parent or, on occasion, too few.)

So if everyone was on the same page, you might wonder what there was to be litigated.   If you read the story you’ll see that the issue was what was to be listed on the birth certificate.   In particular, does Mary’s name appear?   The answer reached by the court is “no.”

Now there have been long discussions on this blog about birth certificates and you might want to go review a little bit of that, because I’m going to assume some familiarity with the main points.   In a nutshell, at least in the US birth certificates are NOT records of historical fact in all regards.   When an adoption is complete, a new birth certificate is routinely prepared and the names of the adoptive parents will be entered on it.   You might not like this–you might want to change this (that’s a different discussion)–and that is fine, but it is standard practice for now.   I am not sure that the law is the same in Canada–perhaps someone from there can fill us in.   But I’m going to assume it is for the moment.

That said, I am not troubled with the ultimate answer.  I do, however, care about the path the court took to get there.   As I understand it the court concluded that Mary was never the child’s mother and thus, her name should not appear on the birth certificate.    It strikes me that this has the effect of making the pregnancy/birth inconsequential.   It’s been a long time since I wrote about that, but this approach troubles me deeply.

It also seems to me that the conclusion that the court reached determines the outcome of all subsequent gestational surrogacy cases.  If Mary was never a mother than no other gestational surrogate will be either.  (Gestational surrogacy is what it is called when the woman who is pregnant is not genetically related to the embryo.  I’ve written about this before, too.)    I’m not persuaded that this case–where all the parties agree on the outcome–is the right vehicle to determine that question.

Which brings me to the alternative route.  Since everyone agrees it seems like there should have been some way for Mary to renounce any parental rights she might have (without quite saying what they were) in favor of Bill.  I have no idea whether Saskatchewan law has any provisions that might allow this, but perhaps a creative lawyer could have found a way to serve the ends of the people involved without taking this problematic route.

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30 responses to “Why The Path We Take Matters: New Surrogacy Case From Canada

  1. The hospital personell can only certify a live birth that they witnessed. they did not witness the conception. For that to be changed on the vital records, some pretty airtight legal documents as to the conception should be the minimum that is required. Until then, Mary should always be recognized as a default parent

    • The point about what hospital personnel witness is an interesting one. It suggests to me that father’s should not be listed on birth certificates, doesn’t it? After all, if you don’t witness conception, how can you know that?

      i think what makes birth certificates confusing is that some things (time/date, say) are recorded as a matter of history and cannot be changed. But it is quite clear from the way that birth certificates are used in the US that other things (parents) are not matters of history but matters of law. Thus, when new legal parents come along (as with adoption) you get new birth certificates.

      It’s easy to imagine a system (we’ve talked about this before) where the birth certificate is all history and lists the name of the woman who gave birth in perpetuity while a second document records legal parentage and could be revised. It may have many virtues. It isn’t what we do, though.

    • for statistical purposes we need to track the woman with the maternal relationship and who gives birth

  2. There’s always something that makes me a bit anxious about phraises like “we need to track.” It’s not that I disagree, but the whole government tracking thing is a bit creepy.

    That said, I’m also wondering what the rationale you would offer here is. While we’ve talked about reasons for tracking the genetically related people at length, those reasons wouldn’t obviously extend to someone without a genetic relationship–which is the case with a gestational surrogate. So why do we need to track her?

  3. the cdc collects birth certificate data as part of managing the spread of disease in the general population. The information collected is the basis for medical research that has reduced infant mortality and helps us understand the origin of birth defects and developmental disorders. Research in fertility and also understanding how poverty maternal age and health impact the developing fetus also comes from that information collected at birth. All of the studies you cite regarding how the gestatiing female body influences the unborn child will somehow rely on data collected at birth.

    These studies of course assume that the woman gestating is the genetic origin of the baby. We need to document the identity of the genetic mother of each child because its her who has the most indellible long lasting impression on the child since the child is a 50% genetic copy of her, they will always be relevant to one anothers health. She needs to understand the health of each child she creates to make informed reproductive decisions in the future at minimum. What we don’t have a handle on currently is how the body of a seperate woman can influence fetal development. Not in the obvious ways like if she smokes or drinks – but can her own genetic problems negatively effect a perfect embryo? What about her age? Yes it can go both ways like the embryo might be better off growing in a forign body because that body is healthier. We are just starting to learn that autism may be linked to the pregnancy and not genetic. So is the egg donor producing 15 autistic children, would she likely give birth to an autistic child herself? Is she damaging otherwise healthy offspring by allowing other women to carry and deliver her offspring? Are there some health conditions or ages where its bad to carry someone elses offpring? How do we keep track of the health and development of peolple who were frozen as embryos? I mean cradle to grave? How do we know what invironmental things might be causing early infertility if we dont know who is giving birth to their own child and who is giving birth to someone else’s. What about drug use by the donor? etc.
    I am thininking you would not think any of the things I said are so outlandish.
    typing s hard

  4. I normally agree with you, but I’m completely perplexed by your thoughts on gestational surrogacy and motherhood. To me, it goes without saying that Mary is not, and never was, Sarah’s mother, and therefore should not be listed on the birth certificate. Sarah has no mother – she has two dads – and that is what everyone intended at the outset of the surrogacy arrangement. My partner and I used a donor to bring our son into the world, and we are well aware that he would not exist without the donor. However, should the donor’s name go on the birth certificate as the father? Most certainly not. It seems to me that you are somehow suggesting that pregnancy is a more valuable contribution to a child’s existence than sperm or egg donation and should therefore result in recognition on a legal document – at least for historical purposes. But why, if that’s not what the parties intended? And isn’t that always the intent, at least initially, in surrogacy arrangements? What am I missing here?

    • There’s no short answer to this–but if you go back and read some of the earlier posts about surrogacy you’ll get a sense of where I’m coming from. I don’t value the genetic link, particularly. Thus, I do not attribute parental status to a person who provides egg or sperm. I do value performance. I like the idea of de facto or functional parenthood. If you do the job–if you have the real living relationship with the child–then I think the law ought to recognize and protect that. That part I’ve been clear about (in my own mind I mean) for a long time. But I have been thinking more specfically about what this should mean in terms of the meaning we assign to pregnancy. You can see some of that in this post. https://julieshapiro.wordpress.com/2010/09/29/does-pregnancy-matter-to-parental-status/ It seems to me that if one values function, then you have to place some value on pregnancy. I’m unwilling to say there is a child before birth, but there’s certainly some serious nurturing going on. The long and short of it is that to be consistent I think I have to say that a woman who gives birth to a child is a mother. That’s actually consistent with some feminist impulse, too, to give credit to pregnancy.

      And why choose pregnancy/function over intent? This is actually the subject of a piece of longer writing I’m just finishing off. But to be really brief, if I have to choose between the person who actually does the work and the person who says they intend to (but then may or may not actually follow through) I will pick the person who actually does the work every time. For me, this is a specific instance of that type of reasoning. It’s fine for Mary to give the child up immediately to the men she’s been working with–indeed, it’s the honorable thing to do. But no agreement between them can, in my view, negate her contribution.

      • Julie Child Protective Services is filled with cases of neglect abandonment or abuse of children at the hands of the women who bore them who in almost all instances also are genetically related to them. As qualifiers for who deserves the title of mother based on performance pregnancy and dna both fail at equal rates

        • Which might be why we need some effective mechanisms for removing children from parents who do them harm? That does need to be part of the picture.

          • Just saying pregnancy is about as good a gauge of who should take catre of a baby as DNA.
            There were plenty of people on my block more qualified to take care of my baby than I was – pregnancy and dna were good for diddly squat when it came to teliing the difference between a hungry cry and an angry one, Giving birth and being related did not help me figure out how to turn her off or at least down so I could get some peace and quiet.
            Its not a real guage of anything other than the experience itself,

            • It’s not about who is best qualified. If you used that test (which amounts to the best interest of the child) chlidren would be reassigned willy-nilly. This is not the reason I would prefer the woman who was pregnant/gave birth over the woman who provided the DNA. I won’t go into detail here–there’s so much elsewhere on the blog and I’m tired and afraid I won’t say it properly just now. But it is not about who is best qualified.

    • I’m curious as to why people recoil from the idea of documenting each child as the genetic offspring of the male and female responsible for creating a genetic reproduction of themselves. The CDC tracks who is reproducing to manage the spread of disease in the general population and to reduce birth defects and infant mortality; the birth record is a health record first and an id document second (that’s evident from adoptions at birth). Would it be so terrible for the person that donated the sperm to have to sign off on an adoption after the child is born? The adoption certificate would be issued the person that wanted to be the social parent would end up with the authority they intended to have and the person that donated the sperm would not be burdened with caring for their offspring and the child would have accurate health records and the state and federal health statistics would be accurate and paternity could be confirmed and clinic errors would be reduced – you can bet nobody would end up with 150 offspring if they had to give each kid up for adoption. They’d cut that off around 10 I bet. So would it be so terrible to issue a first medically accurate certificate followed immediately by an expedited adoption? Everyone of the adults gets what they want and accurate records serve everyone. In the case of gestational carriers birth records should name the maternally related female as mother and the carrier should be named on there certificate as well because her health info is relevant to the child to a lesser extent than mom and dad but still relevant. the maternally related female should have to give the child up for adoption to the gestational carrier or intended parent whoever they are. Why would it be so bad to put the sperm donor on the cert as father since he becomes a bio father the day his offspring is born just like any other man its not like he is immune to that reality. Seems stupid to not record him as such.

      • I think you’ve asked several different questions and I want to give several different answers.

        i think I could get used to a document that listed genetic lineage–it’s rather like a pedigree, right? It’s a new idea–not something we have ever done before. It has some unsettling aspects as it brings to mind various times when tracing lineage has been done for the worst of reasons (slavery, Jim Crow, the holocaust). But what I really want to do here is make it very clear that you cannot accomplish this simply by insisting that the DNA folks get listed on birth certificates. Birth certificates are used for so many things today and you cannot just change what’s on them without changing those practices. it’s critical to me to recognize that this change has to happen at the same time as any change in the varieties of documentation provided.

        The second question you ask is about having the sperm provider sign off on the adoption. And here I really do just disagree. The only reason to have the sperm provider sign off is if the sperm provider has a right not to sign off. That is, you have to have a system where the sperm provider has the right to say yes or no. That’s exactly what adoption provides legal parents with so I think you’ve effectively made the sperm provider a legal parent, solely on the basis that he is the sperm provider. As you well know, I won’t agree that is a good idea. I’m not opposed to some form of counselling that might help the sperm provider understand the implications of providing sperm. And there’s probably all sorts of other regulatory measures I’d agree to. But I won’t agree to giving the sperm provider the form of legal recognition you’re asking about.

        I’m really not sure what a medically accurate birth certificate would be, by the way. It seems to me I could make a fair case that it would list only the woman who gave birth. Certainly it would under no circumstances omit her name (in my view). I imagine you want the names of the genetic people on it (who may actually not be known at the time of birth).

    • what you are missing is that intention doesn’t count for squat when determining parenthood for the rest of humanity who weren’t born via ART, so why should ART children have a different law applicable only tot them? its not like they’re a different species or anything.

      • (this response was directed at andrea who closed her post “what am i missing here”)

      • This is an excellent question and one that troubles me. I know why (as a historical and economic matter) ART is treated differently from non-ART. But is there any principled reason why this should be so? Drawing the line between ART and non-ART and using different tests of parenthood creates this odd class of cases where the fact in disupte is exactly how the particular sperm reached its destination. If by sex you get one set of rules. If by ART you get a different. It seems odd to me that such momentous questions should turn on what can seem a pretty trivial detail. (These cases do come up where you have unmarried couples who are trying to conceive using ART and also have sex.)

  5. you’re a shill for the fertility industry

    • I don’t actually think I fit the definition of “shill” and if you read the blog you must recognize that I care about the language we use. For the record, I have no ties of any sort to anyone in the industry. But I take your general meaning to be that you think I’m too supportive of the industry? Obviously you’re entitled to your opinion, but I think if you poke around the blog you will find occasions on which I am critical of at least some of the industry practices. And it’s actually pretty hard to generalize about ‘the industry.” There’s good and bad in it, as with so many things.

      I’m not at all sure why this post merits your comment. It is because you think DIY is a good idea and you think I’m criticisizing it because it undercuts fee structures? Is it because I draw a distinction between reputable clinics with rigorous standards (that are probably more expensive) and marginal operators who cut corners and hence take too many risks?

  6. A pregnant woman should always have the presumption of maternity unless proven otherwise.

    • i agree. so long as its her baby and she made it with her own egg that came from her own body

      • You know the basic question–why? And what can I vary without changing the answer? (This is really what law professors do, you know?) I don’t care where the egg came from because it is the pregnancy that matters to me. But you do care where the egg comes from (I think) and might well pick the egg provider over the woman who was pregnant, right? So while we come to the same conclusion here, the path we take matters immensely because it reveals our underlying differences.

    • But what would prove otherwise? Intent? Genetics? And why? I would not discount the value of pregnancy based on the presence or absence of a genetic link.

  7. which means we disagree. your clause “so long as…” removes the presumption.

  8. And I also state that Julie is not a shill for anything. Her blog is one of the best blogs for open respectful debates. If you think so you haven’t been reading. Julie should not have to defend herseelf against ad hominem arguements.

    • That bugged you too Kisarita? I got kinda bent felt like I wanted to protect Julie despite having called her procincial – I don’t know what shill is but it sounds kinda mean. Nobody disagrees more with Julie than me but saying she’s in cahoots with the industry is not right

    • Thanks. I appreciate the vote of confidence. I do try.

  9. I’ve just now had a chance to check back in on this discussion, and I see there have been some very interesting responses. I appreciate your perspective and I took the time to read your earlier posts on surrogacy and I understand your arguments. I think where I am getting caught up is the fact that the foundation of many ART families – gay and lesbian families like my own, but other families as well – is trust. That need for trust stems from lack of legal protections as a non-biological (or non-pregnant) parent. From my perspective, intent is still the most important factor in determining parenthood in a surrogacy arrangement like the one you described. It has to matter, because if it doesn’t, non-bio/non-pregnant parents are not parents at all. For me, the issue is also about everything a birth certificate says about my family (and everything it does not). While I certainly consider myself a feminist, I cannot separate my own experience as a lesbian parent living in a midwestern state that does not recognize my partner as my son’s mother simply because she did not give birth to him. Maybe that’s my problem.

    I’m sure I’m missing the finer points here, but I want you to know that I do appreciate your thoughtful response. I usually don’t comment, but I have been reading your blog for years and I like it because it’s a nice respite from corporate law (I’m the GC for a pharmaceutical company). Thanks again.

    • I’m glad to have you as a reader (and even an occasional commenter).

      In general I am committed to what might be called “non-traditional families” or perhaps, in a more incendiary moment, “queer families.” And on this score my conclusions about surrogacy bother me. I actually don’t think it’s a big deal for lesbian familles (who use surrogacy quite infrequently), but many gay men have children via surrogates. I’m also deeply concerned about the protection of what I’ll call “non-legal” mothers, and more generally, parents. Being a co-parent in fact and having no legal rights is terrible and there are scores of cases to prove it.

      So for me, the question is what to do with those concerns? First off, and of tangential relevance here, the lesbian family configuration is part of what makes me want to get away from DNA. If one woman has DNA and the other doesn’t and DNA is important, can they ever be equal? But this doesn’t drive me to intention–it leaves me with the choice between intention and function. I know that function is tricky, but there’s no reason why lesbian couples and gay male couples cannot all form fine functional families–we all know they do–and the law can recognize them on that ground.

      There is necessarily a lot of trust in all of this, a point which I think you rightly raise. So the IPs must trust a surrogate and a woman who is not pregnant must trust her pregnant partner. I am not sure I can do anything about that. Ultimately I am more worried about the cases where there may briefly be intent but there is no follow-through. If you had the intent but you don’t act like a parent (so you don’t have function) I don’t want you to gain recognition over the objections of someone who did function. Say Horton vs. Maisie in Horton Hatches the Egg?

      Not perfect, of cousre. There will be bad cases where trust is betrayed. But I fear there will always be bad cases and the project is really about figuring out which bad cases one can live with.

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