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.