There’s been a fairly extensive discussion of what I’ve called third-party reproduction here over the last little while, featuring a couple of threads that I’ve tried to begin to draw together. It’s a pretty fine-textured discussion of a range of issues–details like exactly how one pays for sperm/eggs, things like that. And like all good discussions, there’s been a lot of disagreement.
I intend to continue that discussion but I wanted to take just a moment away from it to take a step back and look at the bigger picture. Oddly, I think we might find greater agreement at a greater distance, at least among the folks active in the discussion.
From my perspective it makes very little sense to have the parental status of a man who provides sperm for the creation of a child turn on the precise manner in which the sperm reached the egg. Remember, I tend to favor function as the defining factor for parenthood and a person can function as a parent whether egg meets sperm via intercourse or through some other route. Conversely, one can fail to function as a parent no matter how the encounter of egg and sperm take place.
As I was reading comments Friday it occurred to me that people for whom the critical question is the genetic connection ought to agree with me on this one. After all, the genetic connection either is or is not there, and how exactly it got there isn’t what you care about, right?
What this really highlights for me is that it is pretty difficult to offer a principled reason why parentage should turn on the manner in which egg and sperm meet. Yet this distinction is quite important in the law governing ART. There’s a different set of rules for parentage in ART cases than there is in cases where pregnancy occurs because of intercourse.
You can explain this difference with a combination of historical and practical reasoning. A very complicated set of rules arose over the centuries. Because there was no ART, these rules governed conception via intercourse only. When ART came along, using the same rules frustrated the purpose of ART. When an infertile couple used sperm from a man not the husband, they wanted to husband to be the father, not the sperm provider. The law came to accommodate their desire. So a different set of rules developed.
The thing is, if you take a step back and look at it, it’s hard to justify the rules except instrumentally–we need them to make ART work properly. I’m not sure that’s good enough. And I think every now and then it is worth stepping back to remind ourselves of what the bigger questions are. Should we have two sets of rules or just one? And if one, what should it be? What would that look like/what would that mean? That’s my momentary interruption–a look a the greater forest before we return to tree identification.