Although surrogacy is not exactly rare, it also isn’t all that common. And yet it’s often covered in the news. And when it comes up here (as it has in the last couple of posts) it always spurs discussion.
I think it is because it raises so many issues and forces us to unpack so many assumptions. It crystallizes a bunch of questions about motherhood that I wrote about not so long ago. And it makes us think hard about gender/sex and sameness/difference. And really, of course, the problem is pregnancy and what we do with it.
Here’s one way to think about this. Under current law in NJ men and woman are treated differently with regard to legal parentage when surrogacy is used. You can see this by starting with this question: If a married different sex couple use gametes from one spouse and a gamete from a third party to create an embryo which is then carried to term by a different woman (a gestational surrogate), is the non-gamete providing spouse a legal parent of the resulting child?
Under NJ law, you cannot answer this question unless I tell you the sex of the non-gamete providing spouse. If the non-gamete providing spouse is male, then that person is a legal parent. If the non-gamete providing spouse is female, then that person is not a legal parent. That’s pretty stark differential treatment and it sure suggests sex discrimination.
Why would we treat them differently? They’ve both not done the same thing. (I realize that that’s a very odd phrasing, but I’m trying to make a point.) Each didn’t provide a gamete for the child. Why would we forgive the man’s failure to provide a gamete (by allowing him to easily slip into the role of legal parent) but not the woman’s failure (by not allowing her the same easy path)? Particularly for people who think providing gametes is what entitles one to claim legal parentage, the differential treatment ought to be problematic. After all, I can think of no reason why provision of an egg is a more significant contribution (and hence, failure to produce it a more significant omission) than is provision of sperm. But surely this is what current NJ law amounts to.
So again–why would we treat men and women differently here? One reason is that our history conditions us to accept the man as father even when he doesn’t provide sperm but doesn’t condition us to accept the woman as mother. (I think this is essentially the point Kisrita made in the comments on the last post, but I’ll expand a bit.) What I mean is that we have frequently assigned legal fatherhood to men in ways that serve various social interests without particular regard towards whether they were genetically related to the children at issue but we haven’t done this with women and legal motherhood.
So for example, a man has historically been assigned legal parentage of children born to his wife. That’s not because people didn’t understand human reproduction. It’s because it suited us to do this. (And indeed, the marital presumption of paternity survives in modified form and can defeat claims of legal parentage advanced by the men who are genetically related to the child.) There are other instances where we have done (and still do) similar things. I think this means the idea of assigning legal fatherhood to the man who didn’t provide the sperm in the hypo above doesn’t seem like a terribly strange or remarkable thing to do. It’s not that out-of-the-ordinary.
By contrast, the whole idea of reassigning legal motherhood to suit some social purpose seems so odd as to be nearly unthinkable. (For many years I’ve asked my students to flip the assumption the marital presumption around, substituting men for women. Generally they cannot even articulate what it would look like.) I’ve written this before (but cannot find the post)–motherhood is more fixed, less subject to manipulation. So the woman who would manipulate it faces a greater hurdle and here she cannot clear it.
Now why would that be? I think the answer is pregnancy/birth. The idea that a woman who gives birth is a legal mother is pretty well-established. We have no recent cultural experience of any other rule. It’s only since the advent of IVF and surrogacy that we’ve been asked to consider the possibility that a woman who gives birth is not a legal mother.
I think the problem for the woman in my hypothetical (who is really the woman in the NJ case) is that not only did she not provide a gamete, she also did not give birth. Of course, if you looked at the case where the man didn’t provide the gamete, you’d have to say he didn’t give birth either. But his failure to give birth is quite irrelevant. We generally don’t hold it against men that they don’t birth. (I sometimes think we should.) So I think her failing is not really the failure to produce an egg, but rather the failure to be pregnant/give birth.
Long enough for one day–I’ll stop here.