I’ve written before that Israel is a major destination for fertility tourism. That makes this story somewhat surprising, though I suspect there’s an explanation that has something to do with Israeli surrogacy law.
In this case an Israeli couple used their own eggs and sperm to create embryos. One was then transferred to the uterus of a surrogate in Georgia. (That’s the country, not the state. I know next-to-nothing about the law of Georgia but I think I remember that this was where the Erickson surrogacy/baby-selling ring sent their surrogates for impregnation. I think that is because the law is very permissive.)
Anyway, once the baby was born the Israeli couple sought recognition (under Israeli law) as parents. The response of the Israeli Interior Ministry is rather startling. It took the position that the man was the father but the woman was not the mother. She had to adopt the child in order to claim parental status. But remember that the man and the woman had exactly the same basis for a claim of parentage–genetic connection to the child.
Now right on its face this looks ridiculous. Talk about a double standard? He gets to be a parent because of his genetic link to the child but she still has to adopt? The trial judge agreed with the parents and rejected the Interior Ministry’s view. No mention of whether there might be an appeal.
But you know, though the Ministry’s position seems odd, there’s really something to think about. The man gets to be the father because we’re quite used to using DNA tests to find fathers. Indeed, this fits comfortably in many ways with historical views of fatherhood.
Motherhood is different. Historically a woman who gives birth is a mother. Of course, the woman who gave birth was also genetically related to the child (pre-IVF). But the key thing was giving birth. That, after all, was (usually) reasonably easy to tell about. What IVF has given us is situations where there are competing potential claims between the woman who gives birth and the woman who is genetically connected. This isn’t the case for men.
Put a different way, what competition is there for the man here? It’s a no-brainer. If it’s his sperm, he’s the father. But for the woman? We’ve got to think about her claim in connection with a potential claim the surrogate might raise. That’s a much harder question. Maybe she is the mother and maybe she isn’t.
This problem isn’t new. It crops up in surrogacy a fair bit. And there’s a flip answer I could give: Both of the parents here are fathers. They each have the same qualification–genetic relationship without pregnancy. That’s the classic father’s position. If you don’t want to have a two father family, then choose between them, I suppose.
At the core here the problem is that much as we would like to have gender equality, the position of men and women vis-a-vis children isn’t identical. There is always a woman who gives birth. You can ignore that contribution and just go with DNA and then it all works out nicely. But if you want to count her contribution as having some bearing on parentage, then it is usually lined up on the “mother/female” side of the line. This in turn means that the woman who provides DNA is somehow less of a parent than the man who provides DNA–because there’s no one else on his (the father/male) side of the line.
As a final note–here’s another sort somewhat related case from Israel, that also echoes what I wrote about yesterday. Here two women had a child together, one providing an egg, the other becoming pregnant and giving birth. Consistent with the first case discussed here the egg provider is recognized as a parent without need of adoption. But her partner is also recognized as a parent (by virtue of giving birth.) This latter point is potentially at odds with the first case discussed here.