There’s an extraordinarily lively discussion in the comments of a recent post on surrogacy. I confess I have actually lost track of the various threads as I haven’t had the time to keep up. The parts I have read have made me think–again–about the ways in which technology challenges us to rethink established ideas. Given the surrogacy discussion I’ve been thinking about the deconstruction of motherhood.
Once upon a time a woman who gave birth was always genetically related to the child. And keeping track of who gives birth, while not always easy (witness the famous story of the judgment of Solomon) is a whole lot easier than keeping track of who might have provided the sperm. Thus, the law around motherhood was easy–she who gave birth to a child was the legal mother–while the law around fatherhood was more complicated–he who was married to the mother was a legal father or he who held the child out as his for a period of time was a legal father or whatever. The questions around legal motherhood were just questions of fact (who gave birth).
Of course the mother might agree to place the child for adoption and give up her rights. And she might even make such an agreement during her pregnancy. But even in those instances, it was and is clear that when she gives birth she is the legal mother of the child. This means, of course, that she has no legal obligation to follow through with any adoption plan. In fact, the time she has to revoke a plan may be very limited, but time there must be.
But then came IVF and the establishment (in the US and many other parts of the world) of ART as a business. Most obviously this means the woman who is genetically related to the child need not be the woman who gives birth to the child. In addition, a third (and even a fourth) person (male or female or any combination thereof) who intends to raise the child can put the whole enterprise in motion–obtaining (which often means paying for) both egg and surrogate.
This forces us to confront new questions. Suppose everything falls apart and each of the players wants to claim legal parentage–who wins? The woman who claims genetic connection, the woman who provides gestation and birth or the person/people (male or female) with motivating intention?
There is no single answer to this question. Different jurisdictions provide different answers (which is potentially a problem.) The question I think about, however, is what the answer should be and (of course) why.
I don’t think this is a totally freestanding question. What I mean is this: suppose you pick genetics as all important in this instance. This means that the people (one male, one female) who provided the gametes should be the legal parents. Surely this means you should generally pick genetics in other contexts? At the very least, you should be consistent unless you can justify a different choice based on circumstances.
In fact, the law in many places identifies ART as just such a circumstance–one that justifies choosing a different framework for parentage in ART vs. non-ART cases. In some states, intention governs ART cases but not cases where conception is via intercourse. While this can be justified on pragmatic grounds (too often no one intends conception via intercourse while in ART someone always intends for it to happen), it’s harder (for me, anyway) to think of a theoretical justification. In particular, if a man engaged in intercourse has no intention of becoming a legal parent, why should he become one when if the same man provided sperm for insemination he would not become one?
Apart from intention and genetics, you can pick some sort of performance-based standard, which would favor assigning legal parentage to the pregnant woman, I think. And here again the question is what happens, then to the non-ART cases? There’s always a woman who gives birth so presumably she is always a legal mother. (Notice that this is entirely consistent with historic practice for non-ART cases.) I think the harder questions here are 1) is anyone else a legal parent to the child at the time the child is born? and 2) can you become a legal parent of a child not a newborn in some performance-based fashion? (It seems to me that the answer to the second question could be “yes, see de facto parentage.)
I often think it is possible that I over-estimate the importance of consistency here. But it seems to me that if there is a theoretical justification for any particular choice of legal test you ought to at least explain why you only use it some of the time.
I’ll close with this observation–Technology really lead us into this thicket and there’s no reason to think it is done. Consider this development. If life can be created from skin cells instead of gametes, do we need to rethink any of our rules?
I suspect that the above proposition seems unproblematic to most people, but perhaps this is because I chose genetics as my illustrative example.