What Surrogacy Tells Us About Motherhood and Fatherhood

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.





33 responses to “What Surrogacy Tells Us About Motherhood and Fatherhood

  1. Giving birth really isn’t all that special of a talent. I know 13 and 14 year olds who have done it. It’s no different than any other biological process the body carries out. I fail to see why it’s regarded as anything significant.

    • Providing eggs and sperm aren’t exactly big talents either. In particular, I have no doubt we could make similar statements to yours about young men providing sperm. All I think this shows us is that whether a thing is a “talent” (whatever that means) is quite beside the point.

      Preganancy is one of a small number of things which is completely beyond the capacity of men. The fact that it has has historically been assigned a relatively low value (as I think your comment illustrates) could be because it isn’t very valuable, but it seems to me to be just as possible that it is because historically men have been doing the valuing.


      • I have to disagree with your statement. We’ve run into trouble when we’ve placed importance on an ability that one sex has over the other. For example, men gained their dominant position over women because men possessed physical strength which was a critical attribute prior to the age in which automation and other forms of technology were able to overcome the need for physical strength. Our overemphasis on the importance of physical strength resulted in discrimination. By placing some sort of magical or mystical thinking around the ability to birth a child we are once again favoring one sex over the other, resulting in discriminatory legal decisions.

        There is nothing magical about birthing a child and to pretend there is simply harms women even more. Perhaps, that is the goal of those who subscribe to such a notion?

        • I think you are right that we have run into trouble when we have unthinkingly placed importance on differences (biological or otherwise) between men and women. And as you say, over-emphasizing the differences is problematic.

          But just because these things are true it does not follow that we should ignore all the differences. I think we have to consider them thoughtfully and perhaps offer only tentative solutions. I do understand that treating pregnancy as a meaningful different can be detrimental to women–and indeed has been detrimental in the past. But denying the difference also seems dangerous to me.

          Let me take one that is (for me) fairly obvious. While both a man and a woman may contribute genetic material to create an embryo, only the woman is pregnant. I would take that into account and give her the sole right to decide whether to continue the pregnancy or not. I’m not going to assert that pregnancy is magical nor that we should romanticize it. Still, I would take it into account. It seems to me undeniable that during the term of a pregnancy the pregnant woman has a unique relationship with the developing child, one that no one else can claim.

          • But that is because hosting an embryo/fetus directly affect the physical and emotional health of the mother.

            But once the baby is born, that is why her special relationship changes, irrevocably, towards the infant.

            Everything legal is constructed, and sometimes the law is an ass. The woman didn’t fail; it was a legal failure to recognize her as able to claim custodial rights in the situation. The judges failed to conceptual the equal protection clause in a capacious way that accord expansive rights. The prospective parent did not fail. The law failed her.

            • I largely agree here. When I referred to failure I meant that her claim to be a parent fails. It’s also reasonable to say that the law fails her, of course.

              It’s also true that once the baby is born the position of the woman who was pregnant is altered. She stood in a unique relationship to the developing child during the pregnancy but can no longer claim to do so (except in a backward looking way.) Other people can have the same responsibilities for care, etc. that she might have. I suppose what I think about is whether anything carries over from the period of time when she was pregnant and if it does, for how long?

              Here’s what I mean: If I functioned as a parent to a child for the first year of its life and then someone took the child from me, I would claim some rights based on my established (past) relationship with the child. (The longer I wait to assert those rights, the weaker they become, I think.) So analogously can a woman who has just given birth claim some rights based on her past relationship? I’m inclined, as you know, to say yes. But as above, the more time that passes, the weaker this claim becomes.

              • Thank you — I see what you mean about the wording now.

                I strongly agree that relationships & time spent with a child confers rights and obligations.

                But in the case of surrogacy I’d lean towards intent trumping pregnancy in the case of clear documented and non-coercive intent when legal custody following birth is determined.

                Of course, if that intent can be questioned, then the pregnant women’s rights to custody become clear. (ie- if a gestational surrogate does not have her own non-interested lawyer, where she does not understand English,intent must be document by a legal contract, she should talk to a therapist prior to signing the contract.) I think all of these protections for the surrogate should be legislated, and they cannot be where gestational surrogacy is illegal — ie- where the gestational surrogate is legally accorded the rights of motherhood at birth. Reputable clinics in the US require all of these protections (a therapist’s report/ a contract on file).

                I should mention that I’m not talking about “unclear” and confused surrogacy arrangements. (Where friends informally decided to procreate and the woman promises to give the child up. What a mess!) I don’t even see that arrangement as gestational surrogacy, but more, I guess as, “a hot mess” that needs to be resolved in court. In cases of “hot messes” of legal unclarity, confusion, coercion, or just “people being idiots” — I’d would hope the mother retrains rights unless she signs them over legally.

                I also think surrogacy, where a woman uses her own egg, is a very bad idea due to the social construction of motherhood in the 21st century US. Reputable clinics will not allow a gestational surrogate to become pregnant with her own eggs. The earliest surrogacy legal cases where not from egg donors, and we all know how those test cases resolved. Clinics separate egg donors from surrogates as a consequence.

                These messy situations seem to occur between two people making ad-hoc and ill considered arrangements outside of clinic settings. If intercourse is occurring, it isn’t ART. I’d suggest that this sort of outside-the-clinic, involving sexual intercourse; or a turkey baster; non-clinic procedures(or– a “wow, this could become a hot mess!” situation) have great potential for confused legal situations.

                I see these “hot mess” situations as ones that have great potential to confuse intent and should be legally separated from those in which gestational surrogacy, which proper legal protections (therapists, lawyers for all parties) used in conjunction with ART are practiced.

        • This is highly disputed.
          Slaves historically have been physically stronger than their master’s, for comparison’s sake.
          Feminist theory discusses the origins of male dominance in humans at length and has no definitive answers.
          In fact many have suggested that it is pregnancy and childbirth and female’s subsequent greater responsibility for offspring, that put women at an economic and political disadvantage. This is true to this day.

          “For example, men gained their dominant position over women because men possessed physical strength which was a critical attribute prior to the age in which automation and other forms of technology were able to overcome the need for physical strength.”

  2. The State of Washington allows the Intended Parents to declare parentage when you have a Surrogacy or Egg Donation situation without a court hearing being required.

    There is a simple one page form that the Egg Donor signs (if a known donor), Intended Parents sign, and the ART doctor signs.

    You turn the one page form into Vital Records and then the original birth certificate is sealed and a new birth certificate with the Intended Parents name is placed as the parents is issued.

    The total cost is $20 for the birth certificate.

    It is automatic for the Intended Father to go on the birth certificate simply by being named as the Father. No proof of genetics is asked for or required regardless of which woman delivers the baby.

    It is automatic for the Intended Mother to go on the Birth Certificate, if she used an Egg Donor and delivers the baby.

    It is automatic for the Intended Mother to go on the birth certificate if she supplied the genetics and a Gestational Surrogate delivers the baby.

    Why wouldn’t the Intended Mother simply be allowed to have her name placed on the birth certificate when she uses a donor egg (allowed if she gave birth) and Gestational Surrogate (allowed if she supplied the egg)?

    If you follow every other logical step this would be a natural conclusion.

    If it’s deemed to be okay for the Father to be named regardless of any genetic contribution why can’t the Mother simply be named as well?

    • This comment suggests a different way of thinking about it, though I suppose it amounts to the same thing. Perhaps we are willing to forgive one omission in all cases. For men, that’s all you need. Fatherhood has one component–providing sperm. So if we forgive one, the man who does not provide sperm is still a father.

      But motherhood has two components–gametes and pregnancy/birth. We can forgive one (that’s what your statements show me). But we cannot forgive both.

      It’s just too bad the woman doesn’t want to be a father, because she would qualify for that.

      • One thing with Washington is a court hearing isn’t required. Adults are allowed to make Adult decisions and simply turn in the paperwork to Vital records to assign parentage as they determine.

        The IP’s, Surrogate, and Doctor all sign the one page document and Vital records, places the IP’s name on the birth certificate.

        They don’t need to pay thousands of dollars to lawyers and court fees before asking the judge “mother may I?”

        There is a process if they don’t agree to then go before a judge for a legal ruling, but as long as all of the adults are in agreement it’s very easy.

        • That sounds like a sane way to handle things. However, looking at surrogacy overall, I’m still so thankful to live in CA. But, WA’s policy of not requiring a court hearing is a huge positive.

          • So why bother with court approved adoptions or court approved guardianship huh? Lets just allow the grownups to contract in and out of parenthood without any formal legal record of the exchange or investigations to determine the identity of the genetic parents, their reason for relinquishing, whether or not any money changed hands, whether or not their consent is given freely. Let’s just identify people as the children of whoever paid for them intending to raise them.

            Are you all so wound up in what you want and what the people paying want that you cannot see that what you are advocating for is the sale and purchase of human beings? Genetic parents don’t require any background checks because they cannot possibly be accused of having bought their children. They are not, however, completely unimportant to document because it’s not above many genetic parents to sell their offspring or give them as gifts. Because there are those kinds of genetic parents out there we should be adamant that nobody be recorded as a parent of a child that is not their own offspring EVER. And that parental responsibility only be assigned to others after a thorough investigation into the circumstances that caused the genetic parent to relinquish.

            Conceiving your offspring for someone else to take responsibility for and raise is the best example of a person treating their offspring as their property to sell. Gestational carriers should be recorded as gestational carriers, not as the mother. If a woman wants another woman to gestate her embryo she should have to go to court and prove with a DNA test and sworn statement from the Dr scheduled to do the transfer, that she herself conceived that embryo using eggs produced by her own body. And then there could be a pre-birth order saying that the other woman goes on a list so the next kid she tries to register as mother of she has to dna test against before the state will certify the birth record.

            • The right to privacy should not include the right to lie. If other people need the info your trying to keep private, its not your information to control.

            • This has been the law in Washington since 1989. That’s 23 years ago!

              Have you ever seen one issue hit the news with Surrogacy in Washington?

            • Do you know that New Jersey Law declares the Gestational Surrogate the Biological Mother?

              As the plain language of the statute provides, the status of maternity is grounded on EITHER a biological or genetic connection to the child.

              • so if a woman’s gametes or embryo or a man’s sperm is misappropriated what recourse do they have to fulfill their obligation to their offspring? Why should they be prevented from performing parental duties for their own offspring and why should anyone have the authority to thwart their efforts and why should anyone have the legal right to conceal the existence or whereabouts of their offspring from them especially when no consent was given in or out of court?

                Do the child’s genetic relatives cease to be genetic relatives? Do they cease to be people the child should avoid dating just because the parents did not intend to raise them? Do blood relatives stop being medically significant to one another just because one person is not handling their parental responsibilities?

                The law fails to afford equal rights on so many levels especially with its sometimes genetics makes a mother and others it does not approach. Where does that leave the born individual? Kisarita has recently been saying she thinks its wrong for people to be born without a mother. I think what she means is that she wants to see a female recorded as mother and it does not matter to her who that female is – well she’d go first genetic then if she’s not around then gestational. Well and I hope Ki gets this and thinks it through….by saying that the gestational carrier is the fall back for mother when the genetic mother is not around you are validating the whole egg industry. Yes Virginia you are the biological mother of any child you give birth to whether you reproduced or not.

                Your concern is that someone be listed as mother on the certificate but think about what the CDC does with that information collected on the woman that gives birth. The federal government assumes that she’s genetically related to the child she delivered. They don’t collect amended certificates when people are adopted because those certificates are not health records and they are useless for statistical purposes for research on heritable diseases and birth defects. There is in fact a certain base line understanding that if your not adopted the woman on your birthrecord named as mother could pass a maternity test. Naming a gestational carrier as mother screws the kid out of living as their true self for life. They will never be aknowledbged legally as a member of their genetic family. Their health records are useless for medical purposes and the woman who delivered got what she paid for – a baby. If all she wanted was an egg being saddled with a baby might really tick her off.

                There are other things we could do like name gestational carriers as temporary guardians until their step parent adoptions are finalized, but I’d like to see the egg donor have to go to court put her name on the original certificate as mother. All out of respect for recording an accurate original identity for her offspring.

                The important thing would be to investigate whether the donor received any compensation or goods or services at any time during the past couple of years from the people who want to be listed as parents If so they should not be listed as parents, she should have to take care of her own kid and if she does want to give the child up for adoption it will have to be to some other person or couple who did not provide her with any financial support in the past and she should be watched in the future and any money they give her later should be taken and put in a trust for the kid.

        • Is this the case in Washington for a routine adoption with no ART involved? the adults involved can simply sign a form?

          • Way to point out an important injustice Ki

          • It doesn’t say anything about adoption and assisted reproduction is required..

            The donor of eggs provided to a licensed physician for use in assisted reproduction for the purpose of attempting to achieve a pregnancy in a woman other than the donor is treated in law as if she were not the parent of a child thereafter conceived and born unless the donor and the woman who gives birth to a child as a result of the assisted reproduction agree in writing that the donor is to be a parent. RCW 26.26.705 does not apply in such case.

            A woman who gives birth to a child conceived through assisted reproduction under the supervision and with the assistance of a licensed physician is treated in law as if she were the parent of the child unless an agreement in writing signed by an egg donor and the woman giving birth to the child states otherwise. An agreement pursuant to this section must be in writing and signed by the egg donor and the woman who gives birth to the child and any other intended parent of the child.

            The physician shall certify the parties’ signatures and the date of the egg harvest, identify the subsequent medical procedures undertaken, and identify the intended parents. The agreement, including the affidavit and certification, must be filed with the registrar of vital statistics, where it must be kept confidential and in a sealed file.

            • Yes and that stinks. That is the law that needs to change. The donor is agreeing to produce her offspring for others to take responsibility for and raise. This is the proprietary treatment of human offspring by genetic parents, producing them specifically for others to take responsibility for. We should not permit people to treat their young as objects to be sold or gifted.

              The law needs to look all born individuals equally – they have genetic parents, if they are not raising them we need to ask why not and investigate if their offspring were the unfortunate objects of any trade agreements. If so we need to prohibit the trade from going through.

            • “The donor of eggs provided to a licensed physician for use in assisted reproduction for the purpose of attempting to achieve a pregnancy in a woman other than the donor is treated in law as if she were not the parent of a child thereafter conceived ”

              Treated AS IF she were not the mother (when in fact she actually is the mother). If she were not actually the mother they would not need to treat her as if she were not because she in fact wouldn’t be and there would be no reason for the agreement. Do we have agreements with everyone on earth who is not the parent of the children we give birth to?

  3. That is why many locations no longer declare a Mother and Father on the birth certificate. Parent 1 and Parent 2 shows that legally the rights of both parents are established using the same rules.

  4. “It’s just too bad the woman doesn’t want to be a father, because she would qualify for that.” That made my day! 😛 Wouldn’t life be so much simpler if women were allowed to be ‘fathers’ as well? I read a post about this a while back (don;t have the link at the mo), which was amazing.

    In a way, we punish women for not being able to do what they are ‘supposed’ to do, while we forgive men for the same thing. I think a lot of it comes from the emphasis that is placed on motherhood in many societies, where a large part of being a woman is being a mother – not being able to give birth or provide the egg is seen as an unforgivable crime. BUT in the same vein, how much of a parent is the surrogate who only provides a womb? Why should she have any right to be the legal parent?

    As for giving birth not being valued, I would actually argue the opposite. In many cultures, being able to give birth is seen as the be all and end all; without it, like I said above, a woman is not considered a woman. Albeit, the fact that 12,13,14 year olds now give birth, I understand that childbirth *might* be devalued by some.

  5. &^$$$%$#**@! etc etc insert biological diatribe here and civil rights violations there. That about does it for me.

  6. I could take a vacation and Julie could run my script by proxy.

  7. Julie you’ve misinterpreted me! I’ve never said that it’s ok for men to abandon their genetic offspring just because some men have been doing it since forever. There are also some men who have fought for the death for their genetic offspring!
    It’s not ok but it IS a result of biology is what I am saying.
    Regarding the marital presumption, paternal uncertainty is built into biology. Biology is the source of paternal uncertainty. We rely on it when it doesn’t always fit biology because A. some people believe there are stronger considerations than biology – which is entirely different from saying it doesn’t exist or isn’t important at all and B. Because as flawed as the system is, there really isn’t a better one.

    • This quote fits under this topic.

      “Despite the obvious anatomical and physiological differences between the infertile husband and wife, once a surrogate knowingly and voluntarily surrenders her parental rights, their situations are not meaningfully different.” Justice Barry Albin, New Jersey Supreme Court

      Once the Surrogate is pregnant with the Intended Parents baby the Intended Mother and Intended Father are in exactly the same position. The woman is just like the man waiting for their child to be born.

      • There is a big damn difference between an expectant parent and an intended one. Two people who reproduced awaiting the birth of their offspring are, yes situated identically regardless who delivers that baby.

    • My apologies, though it’s not so much that I misinterpreted you as that I didn’t express myself clearly. (Stil it probably amounts to the same thing from your perspective.) I only meant that as a descriptive matter we have assigned legal fatherhood in ways that suit us for a long time, so we are somewhat used to it. The idea of doing the same with legal motherhood is still very new and seems much more radical.

  8. JUSTICE ALBIN, joined by CHIEF JUSTICE RABNER and JUSTICE LaVECCHIA, New Jersey Supreme Court continues:

    “The right of an infertile wife to be considered a natural parent no different than an infertile husband, while not fundamental, is substantial; and denying the infertile wife and her intended child the same benefits and privileges that the Act confers on her male counterpart and his intended child — which ensures that children, shortly after birth, have the emotional and financial security and legal benefits and privileges that come with having two parents, while avoiding the expense and delay involved in the adoption process — bears no substantial relationship to a legitimate governmental purpose.”

  9. I agree that if we are going to allow men to get named as father of unrelated children just because they are married to the women who gave birth we have to allow the same treatment to their wives and same sex couples. I believe in being fair. Problem is that the law naming husbands as fathers has never been fair to the kid and is often not fair to husbands and fathers who are not married. Its a stupid backward poorly thought out law and approach to begin with that we should get rid of rather than spread the dumb around. But sadly until the law is gone for men it should be open for everyone. That is equitible treatment for women and same sex couples but that equitable treatment happens to put others in a compromised position which is why we have to do away with marital presumption. Go to some system where everyone is either dna tested before state’s certify birth records or they submit sworn statment that they are either maternally or paternally related to the child they claim to be the parent of and that should it ever become evident that they are not maternally or paternally related the parent child will be voided for mistake and the court will regard the person previously thought to be a parent as an interim guardian until the facts can be established and custody issues worked out or whatever. There should be no reward for lying about being a a parent. People should not be allowed to team up and buy babies just because they are in love and want to set up house. Dissassociate marriage with parenthood completely

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