And Over On NPR: More About Surrogacy

I’ve just listened to and read part 3 of the NPR weekend series on surrogacy.  (Part 2 must have been last night and I’ll get back to it.)   I wrote about part 1 yesterday.   This part is about how the law lags behind the technology and provides a recap and an introduction to a lot of important issues, but of cousre, it cannot really go into those in depth.

There are also things left unexplored.  So for example, Jennifer Ludden (the NPR reporter) starts by observing that for a long time it was pretty simple–a woman who gave birth was a mother, her husband was the father.   This immediately raises two questions, I think:  What about unmarried women who give birth?  And what does it mean that the tests for parentage were so different for men and for women? 

Both of those points are discussed (some would probably say ad nauseum?) on this blog.   They’re important, but I do see that a six-minute radio story cannot fit it all in.

Overall, the episode focuses on exactly the question I focus on–what does it take to be a (legal) parent.  I think it is fairly clear that the focus is on legal parenthood, although the term isn’t used.   After all, the prime interviewees this time are lawyers–Michelle Zavos on Steve Snyder.

What’s most disappointing to me is that the story focusses on two of the three main ways to determine legal parenthood:  biology (which given the separation of gestation from genetics is open to competing interpretations) and intent.   What it doesn’t mention is function–which as you all may remember is my personal favorite.

Actually, function does sort of fly by–if you look at the questions posed by Michelle Zavos, the second is:

“[Someone] who acts as a parent throughout a child’s life? “

That’s a question about functional and de facto parentage.  (If you look at each of Zavos’ three questions, you’ll see there’s a ton packed in there.)   It’s just it doesn’t get singled out for discussion, while intent and biology do.

Overall, I think this part of the series is a good starting point–it gives a sense of the complexity and of the relative roles of law and technology (follower and leader, basically).   There’s oh-so-much-more that could be said, though.   But that’s why I keep doing this blog.

One last note–you can read a bit more about the current NJ case discussed right here.   It’s one to watch.   A ruling that gestational surrogacy and traditional surrogacy lead to different outcomes can only mean that DNA is critical.



6 responses to “And Over On NPR: More About Surrogacy

  1. You never seem concerned about how people come to have possession over a genetically unrelated child such that they would be functioning in the roll of the child’s parent. Doing what the child’s parent (genetic) ought to be doing.

    Why is it that you think that paying to raise another person’s offspring is an acceptable way to come into possession of a child? I know you say they are paying for the sperm and not the child but you cannot say they’d pay for the sperm if they did not get to raise the child without him involved. So are they paying for the sperm or are they paying him to let them act as a parent to his child? Or both? People in the market for sperm won’t purchase sperm if it came from a man who refused to reproduce with them or who wanted to be named on the birth certificate. I actually don’t even think that its both because its really just the one thing, they are paying for the child and the sperm is part of that process of getting a freshly made one.that is partly their own child as well. If they were paying for a child that was his and another woman’s they’d need to pay her as well like when people pay for donor embryos those are more than sperm alone because they are not just paying for the mans child but the woman’s as well.

    To many donor offspring that I have spoken with its offensive that a person who paid to become a social parent would have any say so over their lives and that the law allows those people to get to decide whether or not to tell them the truth and allows them to put their names on their birth records. They have functioned as parents but they came by that roll by paying for it and they have no signed proof that the biological parent actually gave consent or that the person they are raising is really the offspring of the person whose donor number they may have been given. The way a person attains legal parenthood in many people’s views can undermine their worthiness to exercise those legal rights they usurped. It does not have to be legally considered kidnapping to invalidate the effort put forth functioning as a parent, simply going about the process in a back door shady way like buying gametes is good enough for many people who are supposedly the offspring of a donor.

    Of course I acknowledge the variety of opinions not expressed by the silent majority of donor offspring who don’t feel as I described. I’m just talking about what the vocal ones say. You know how when we have an election and they tally the votes? If the silent majority does not show up and vote in favor of what they want it means that either there is no silent majority in favor of that thing or it means the silent majority silently is not as in favor of the thing as some want to believe that they are.

    • I think you overstate it when you say I’m never concerned, but I think the larger point is that I don’t think people are raising someone else’s child in many of the situations that worry you. I think they are raising their own children and there’s nothing remarkable in that. So, for instance, a single woman who purchases sperm so that she can be a sole parent isn’t raising the male sperm provider’s child. I don’t accept that it is “his” child. But that’s your starting point, right? That it is (for some reason having to do with the primacy of genetics) his child.

      Oh oh–must run. Plane boarding.

      • I suppose I am probably in the middle here. I place an importance on genetics but not to the same degree as some. Basically I believe the genetic parent should always have the first right to the child, but they can sign those rights away and then the child can be someone else’s. That’s why I’m always for the father being given stronger rights to prevent an adoption he didn’t agree to, and why I think (in cases like the Ohio lesbian couple ruling I disagreed with) that the bio mother should have had to sign something before the partner gained righsts to the child.

      • No. You just want to keep doing this until I give up right. Where I explain that I do not think DNA makes a person a parent, being responsible for creating another human being makes you a parent and DNA is merely evidence of that. The way pregnancy use to be an indication of the same thing but no longer is…that thing where you say stuff like I believe in natural law and that genetic parents are better suited to raise children than other people and I say no no that is not what I’m saying at all. DNA and genetics just help demonstrate who is or is not the cause of a person’s existence. What I believe is that the people who reproduced to create the child have a duty to protect the life they created once that person is born and that interfering with their performance of those parental duties is wrong.

        You cannot say that the people who commissioned the child caused its existence if they did not reproduce to create the the born person. The husband or wife or partner of the woman who reproduces with a man cannot say they conceived a child with her just because they were “in on it with her” or that it was their idea and she would not have done it were it not for their urging or inability to reproduce with her; she could have just as easily arrived at that decision to reproduce with that man on her own or broken it off with them right before conception and decided to move ahead with the project without them and the child would still exist. The husband wife or partner of the woman in that situation may only be integral in the raising of the child, not the creation of one. Therefore it was never their duty to raise that child but merely an option exercised with the permission of the child’s parents – their wife or partner, and the man she created the child with, be he a donor or any other guy who opts not to take care of his kid.

        A woman cannot reproduce to create a child on her own without the involvement of a man who hopefully consents to do that with her. A woman cannot be responsible for raising her offspring on her own without the abandonment of the child by the man who reproduced with her. Still she can never be fully responsible for maintaining the life of the child because she is not fully responsible for creating it.

        I know you think that pregnancy matters more than reproduction but how can it when the latter only occurs because of the former? When the person is born their condition is the same as all other people that were born, they originated from two parents who reproduced to create them and a woman gestated and delivered them.

        You want to say, treat all people equally and allow them the financial and physical support of the woman who gave birth to them because they all have that in common. Great, I can see that. But then none of those people should have any right to financial or physical support from anyone else but her. Not their genetic father ever, nor any spouse or partner of that woman ever because it would result in some children being entitled to the support of two parents rather than just the one you’re allowing them to have. In your world you’d leave it up to the woman who gave birth to determine if she wanted to call her romantic partner a parent or not. You want the woman who gives birth to have control over who gets to be her child’s other parent and in doing so have control over who gets to be her child’s other grandparents and cousins aunts uncles siblings etc. Yet you fully understand that in reality the child already has those things and you need to hide them, yet look out for them all at the same time because you don’t want them involved in any incestuous relationships. Your very complex.

        • I’m afraid I really do not understand some of the points you are making here. I’m sorry if you feel I am running you in circles–it isn’t my intention. I do think we come back to the same disagreements. Let me try again–if you’ll bear with me?

          You say that being responsible for creating another human being is what makes one a parent. But in my view, “being responsible for creating another person” doesn’t have one fixed an obvious meaning. It could point to the commissioning people, it could point to the lab tech, it could point to the people who provide gametes. Based just on the language, I can make a case that any or all of them are responsible for creating the child.

          Then you say that the DNA is merely evidence of being responsible for creating a child. Apart from the fact that I do not see why this is true (except that you are saying it is) it also seems to me to understate your case. It isn’t “merely evidence.” It is the only evidence and it is conclusive evidence. Is there ever (in your view) an instance where DNA isn’t enough evidence to prove that you are responsible for creating a child? If it is always enough evidence–which is to say that it is always conclusive–then I think you are saying that DNA determines who is a parent.

          You say the DNA related people have a duty that others do not–but why is that? Where does that duty come from? Who has assigned that duty to those people?

          You tell me that I cannot say that the commissioning people are responsible for the creation of the child, but I don’t see why I cannot say that if you are free to say that the people who provided the DNA are responsible. Because they didn’t reproduce? But I don’t choose to place biological reproduction at the center of the picture. (I see that you do.) Why are we not each allowed to make our own choice about what belongs in the center? Why is your choice the right one?

          I do see these as choices and as choices, the one we pick must be justified. There needs to be an argument (in my view this is) about which is the better choice. I would make the choice (of how to define parentage) with an eye towards the well-being of children. That’s why I come to the question of what will be best for children generally and why I think it is a fair question to ask about genetic parents.

          • Julie I know that you are a very sharp woman. When you write stuff like that asking me to spell out why it is that I think a person with offspring is responsible for creating their offspring it feels like you are teasing me. You said that I’m asking you to buy that for no other reason than I said so I thnk I need to check in with you on some common ground first.

            New human life is the result of human reproduction.

            It’s been my understanding that all human life is caused by human reproduction.

            So therefore the humans who reproduced are the source/cause/origin/reason for human life created.

            I’m not trying to be deep here at all. Each particular person only exists because they were created by two humans that reproduced.

            Other humans and factors can influence humans to reproduce and I think your feeling is that influencing the people who created the child to create the child is close enough for government work to call created. But in fact its very much like being the guest at the weding that lays claim to being the reason the happy couple is together because if it were not for him they never would have met. There are millions of reason why and how two individuals come to reproduce together, say they had a class together you would not say the school caused their marriage their child their friendship. Or a car crash or a job, its all a wonderful chain of events but people are the cause of their own physical actions and they take responsibility for the outcome.

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