Another Look at Surrogacy

Continuing with what seems like  little run of personal stories, I wanted to talk about this recent photo essay.   You can find the photos here, too, though the text is different.   And, as is noted, the surrogate involved has her own blog.   Anyway, I think this fits nicely with a not-too-long ago post about another personal surrogacy story.

Kristen Broome is the mother of a two-year-old.  Her husband is in the military and was in Afghanistan during the time this takes place.   She learned that her second cousin, Jamie Pursley, had had a miscarriage and could no longer carry a pregnancy to term.   Kristen offered to be a surrogate for Jamie and Jamie’s husband, Jacob.   Jill Knight is the photographer who followed the two women and documented the story.

This is surrogacy when it works.   It’s surely the most acceptable in all regards–the child is genetically related to both of the Pursleys and not (except as a second-cousin once removed?) to Broome.   Broome did not do this for money, but rather volunteered to help a family member.   And everyone followed through.   Which is not to say it was easy.   Or without risk.    I know we’d all like life to be easy and without risk, but there are those immortal words to remember:  You can’t always get what you want.

Anyway, a couple of things strike me here.  First, as you can see most clearly by reading Broome’s blog, a lot of what made this work is attitude.  From the beginning Broome did not think of Liam as “her” child.   As she says

“I have been asked more times than I can count how I felt when I gave Liam away. My first response is always that I didn’t give Liam away; he was never mine to give.”

(And yes, as an aside, there’s that language again.  “It’s not my child, it’s their child.”   It does sound like the language of ownership, but it’s the language we generally use.   I think everyone here, no matter what view they take on parentage, falls back to that language.   But even if we all do it, it’s still worth thinking about.  Maybe especially if we all do it?   I raised this in a couple of posts not so long ago and I think it’s a good topic for thought/discussion.)

Anyway, to return to the main point–everything I’ve read about surrogacy suggests that attitude matters.   I don’t mean it is the only thing that matters, but it is a critically important thing.   Clarity about what you’re doing and why is a necessary base to build on.

It’s not clear to me whether the people involved here went through any special screening to determine if they were suited for surrogacy.  My guess is (and it is just a guess) that they did not.   If that’s the case, they got lucky.  Even when surrogacy is altruistic and arranged between family or friends, it can go sideways.   Caution before commitment is always better.

As with the earlier post, I think about what the future holds.   I think most of us here agree that honesty and openness is best for kids–and since the folks here are related they’ll be staying in touch.  Someday Liam will have these pictures to look at.   And he’ll have Broome to talk to, if and when he wants to.  That’s a far different future than I imagine in the cases of out-sourced surrogacy where the surrogate lives a world away and there is not common language.

And at the risk of muddying my own topic, while I’m thinking about surrogacy, I wanted to add this into the mix.   It seems like the more we know, the more complicated the world becomes.   Here’s a recent study and some press around it.   Dr. Barbara Kisilevski.   Dr. Kisilevski and her team of researchers established that a fetus in utero learns to recognize its mother’s voice.   I don’t find this result particularly surprising, really.   But it does give me more to think about as I consider surrogacy.   The surrogate–the woman who is pregnant–has a real and substantial relationship to the child she gives birth to you.  Whatever we do about surrogacy, I think we need to acknowledge that.

And just because it’s been a while, I’ll remind you of my own view.  Because I believe in women’s autonomy, I think women ought to be allowed to be surrogates and I think they ought to be paid for their time and trouble if they so choose.   But I also think that when they give birth they ought to be recognized as legal mothers.  What that means is that the intended parents–those who contract with surrogate–must rely on the good faith of the surrogate to keep her word and let them adopt the child.   I’m fine with that–though I know many aren’t.   Putting greater power in the hands of the surrogate doesn’t really worry me, for I’m afraid that generally its the intended parents who hold most of the cards.

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76 responses to “Another Look at Surrogacy

  1. I’ve observed newborn babies calm down at the sound of their mothers voice, when my voice as the nurse didn’t have the same effect, so I’m not surprised at that research. but then again maybe I’m just not naturally soothing sounding

  2. i personally believe that the impprtance of pregnancy fades with time, but even so im ok with your formulation of having the surrogate considered the legal parent because it is based on a biological fact. it may not be the biological fact that i believe most impprtant but it takes us away.fr transactions and commodification

    • The other thing it does (from my point of view) is place pregnancy in a category that is not simply childcare. That’s also important to me.

      The whole passage of time thing is interesting. In some respects I’d say the same thing about the importance of genetic connection. If someone who is not your genetic parent is raising you then as time goes on that relationship grows over time. The genetic one remains constant–it is what it is. If babies were switched at birth it would matter to me whether the mistake was discovered at one week or at ten years. But I do see that this is not quite the same as the pregnancy/birth thing. The recognized voice, say, will be forgotten–so it’s not a constant the way genetics is. Still, you’ve made me think about how the weights of various things change over time.

  3. If it helps at all, we went through ALL noal legal, medical, and emotional evaluations that any surrogacy is involved with at our clinic. This includes two psych evaluations (both as a couple with my husband, then the four of us), a 679 question personality test, all four of us having extensive blood testing for contagious diseases such as HIV/AIDS and so forth. The ONLY difference was the surrogate was not found through an agency or surrogacy match up online. Hope that clears up some of this since I had not written since it happened back in April/May/June of 2012.

    • It does indeed. thanks for taking the time to write. I didn’t know since it wasn’t mentioned, and sometimes when people know each other they don’t bother with the evaluations. (They should, but they don’t.)

      • Sorry, noal is “normal.” I know both clinics in Charlotte, NC requires the same process as if the couples were strangers. Also, we didn’t really write about this however in NC you can get the Pre birth order completed to prevent the adoption process. We completed the process in March and the three of us were present and my husband had notarized statements (He was in Afghanistan) as well as statements from doctors and our fertility clinic doctor (RE).

        I also read where you wrote about another couple. In our circumstance I was asked to be his godmother. I will be “Aunt Kristen” however I will not always be around since we are a military family. I don’t regret doing this uncompensated and hated being paid for anything including reimbursements for medicines or travel. I know I’m not in the “norm” of surrogates but I have no urge to be a part of his life but I do love watching him grow through photos.

        • It seems like even if you aren’t a big presence in his life day-to-day, you’ll always be there as Aunt Kristin. The day may come when it is important to him that he knows you because of the special role you played in his life and if it does come it is nice that you’ll actually be there and he will always have known you–you’re not going to be a stranger. I’m not sure what it is like when people do surrogacy with a stranger and then don’t keep in touch and I’m not sure how common that is, either.

  4. I disagree that gestational surrogates should be recognized as a legal parent. Birthing a child is really not a magical ability and shouldn’t trump genetics and intent. I lean towards CA’s recognition of intent.

    A gestational surrogate who has never intended to be a parent shouldn’t be saddled with the hassle of being a legal parent and forcing her to undergo the hassle of an adoption is silly and burdensome and restricts, not improves, her power to control her body and her circumstances.

    I would agree that foreign surrogacy relationships are problematic and I, as a general rule, am leery of them. I suspect many of seeking non-US surrogates to circumvent the power that US surrogates hold.

    • nothing magical at all about intent, or genetics either. None of those compares for being part of the same body for 9 months. At the time of the birth, there is no comparable relationship.
      Of course, as I said before, this fades with time.
      If we’re going to assume paternity based on something so flimsy as marriage, we can darn well assume maternity based on something so intense as pregnancy.

      • I’d have to disagree. I do not know your story however unless you’ve been through its hard to speak on the situation and bond. Yes my surrobaby heard me day in and day out however from day one he latched and nursed from his biological mother. He would search for her at an hour old when i held him the first time and she would speak across the room. He would not calm for me even at 4 weeks old but would instantly calm for his mother. I pumped and he had my milk supplemented however he never tried to search for milk when I held him even though I’m sure he recognized my scent. He never reacted like my own son did who would stare at my face, turn to my voice, calm in my arms but would do all this with his biological mother.

        There are some things you must see to believe and I’m not here to change your mind. However many have their views and judgements on surrogacy on how they believe it works but I’ve lived it and that’s how my story goes

        • Thanks for adding these details.

          When I read the stuff about recognizing a mother’s voice I wondered if they also recognized other voices that had been near them consistently. (Don’t know if that would include Liam’s mother.) And I wondered, too, how quickly other voices they had not heard became familiar. Four weeks is (in the life of a newborn) a very long time.

          It seems clear that no matter what your legal status was when Liam was born, you were clear that he was not your child. I do think there ought to be an easy way through the legal thicket to get to where you landed in terms of legal parents. But not every surrogate will have the experience that you had and in those few cases (one hopes few) where things go sideways, I’d prefer to weight the scales in favor of the surrogate rather than the IPs.

          • Why do you say the scale is weighted generally in favor of the Ip’s?

            • Imagine you have a case where the IPs and the surrogate have come to a falling out. Both want to keep the child. Going by intention at the time the agreement was made mean the IPs win–which is what I meant by the scale being weighted in their favor. Going by giving birth means the surrogate wins–which tips the scale the other way.

              It’s not so much that I think that many cases will actually come down to that. Experience doesn’t bear this out. With proper screening it won’t come to that kind of struggle. But knowing who will win if it comes to a court fight does effect how the parties deal with each other. There’s a lot in the literature about this when it comes up in custody cases–some author’s talked about it as bargaining in the shadow of the law. The idea here, I think, is that if you know you will lose in the end you will ask for less, while if you know you will win you will offer less.

              When I translate this into surrogacy I think that if the IPs know that the surrogate could keep the child then they need to treat her with respect. If they know that she cannot keep the child she can just be a vessel. I’m not saying people actually do this in any one case or another, but in the big picture. The comments here that dismiss pregnancy as an unimportant contribution are the kind of mindset I’d like to discourage.

              • I really see what you are saying there almost to the point where I’d want to switch sides and vote for Julie

              • In cases of lesbian couples, often times one individual will go through IVF, and the other woman will get the transfer and gestate. Why would the second woman have more of a claim on the child in case of an argument or break up? It just seems really problematic to divest the first woman of all rights to her child in case of a break-up. You believe the the act of pregnancy trumps all other claims to the child. That’s quite radical and unusual. I don’t see family formation in the same way and disagree with your position. Emotional ties count for quite a bit, I don’t believe in denying the identify of parents to all of the parents, (I was quite happy that Iowa will now put both mothers on the birth certificate) and I would not situate pregnancy as a complete trump card over the kin and genetic ties of the other woman to the child.

                It does seem an extreme response — to give the pregnant individual sole rights to custody. It would actually change family law as we know it, if pregnancy preceded sole legal custody. Of course men would all be disadvantaged, by the fact of not being able to carry.

                In any case, respect also seems like such an odd legal harm. Stripping custody is not a surgical response to the harm of rudeness. I find it interesting that you’re not addressing concerns about how the parents might be dangerous to the health and/or welfare of the child.

                In any case, I would think that it’s rather obvious that parents do not enter into these agreements with women they suspect will change her mind or run away with their baby. People look for women who already have their own children and are in happy relationships precisely because there is always an underlying fear that the surrogates might not be emotionally comfortable with the situation, and, in extreme circumstances, might abscond with their child. Parents walk away if they suspect they cannot trust the surrogate. As a result, changing the law will not change present behaviour.

                There are lots of people who want to be surrogates, particularly for parents who are willing to pay well. Quite frankly, if a surrogate wishes to be recognized as the legal mother, all she has to do is travel to a state where she is recognized as the legal mother and give birth in that state. In any case, the parents are aware that a surrogate could get onto a plane and go to Peru, or Canada, or the UK, or really anywhere in the world and they may never see their baby again. They have to trust her completely. That’s why people choose most carefully in selecting their surrogate. It’s kind of a big deal and trust must be present.

                The details of legislation or contracts, in many arenas of changing behaviour, is rather weak sauce. [Software agreements! who even reads those contracts? Also – mortgage contracts — many banks didn’t adhere to those agreements]

                But there is a fictive legal truth most people believe, despite what may be written into legislation or contracts. The parents believe the surrogate will turn over the infant. It’s a legal fiction that isn’t going to be changed by a state law that recognizes the surrogate as mother until the adoption goes through, which, if I’m not mistaken, already holds in several US states.

                I am trying to imagine a situation in which a surrogate, say in the 2rd months, tells the perspective parents that she is going to keep the child unless they treat her with more respect. What does she want? And wouldn’t that be a bizarre negotiation? In most situations the parents would give her anything she wants, because she has the trump card — she is carrying their beloved and long-awaited for child. She doesn’t need legal custody — she’s got the physical custody of the child and any parent would panic at the thought of what could happen once trust is broken.

                Most parents are well aware of their emotional vulnerability when they turn to a surrogate. I find it interesting that you see the surrogate as needing protection that cannot be corrected by, say, robust labor laws or a strong enforcement of constitutional rights protecting bodily integrity. It’s rather extreme, isn’t it, to suggest that it’s a good idea to take away custodial rights from parents for the act of being rude? (A suggestion for a less extreme response– legislation mandating mediation and counseling if the surrogate has a concern about disrespect?)

                • Once again, many things in what you say. I’ll comment on a few? But really all are worth thinking about. And I know what I have suggested is unusual and perhaps radical.

                  Like you, I think when a lesbian couple plans to have a child and then implements the plan, both women should be recognized as legal parents. Ideally, both women should be recognized as legal parents from birth. But it is hard for me to articulate a set of rules that gets you to that place. Using intention (the people who intend to be parents are the parents) doesn’t work for me where the conduct doesn’t conform to the intention. So, for example, if I say I intend to be the parent but then don’t act in ways consistent with that intention, I don’t think intention ought to work. And the reverse–if there isn’t any express intention but there’s a course of conduct where I act like a parent–then I think I ought to be one.

                  So this leads me to conduct. I think the woman who is pregnant clearly has conduct–and it is conduct of a unique and special kind. What about the partner (who could be male or female)? I’d like to give credit for the kinds of supportive conduct you’d hope for. But what about the hard case–where the pregnant woman and the partner have split by the time the child is born? Choices then are to have two parents not together or to just pick one. If pick one, which? The latter is easier for me–the one who gave birth. Then again, maybe it is not necessary to focus on this worst case scenario? But in any event, the issues you identify in the first part of your comments are ones I struggle with.

                  Just briefly on the surrogacy–I wasn’t thinking in terms of explicit negotiations. I was thinking about how your understanding of what kind of power people have changes how you treat them. So (in academia) pre-tenure people tend to be more deferential to tenured colleagues than are post-tenure people. There’s no specific negotiation there, but pre-tenure people are well aware of the power tenured colleagues wield and it shapes the interaction in countless ways. If you think of a surrogate as someone with important decision making power then you might well treat her differently than if you think of someone who is essentially a servant. I’m not saying everyone does this–but on the margins I think it might matter.

                  • I think you underestimate the power the surrogate in the USA has over the prospective parents during the pregnancy.

                    I worry about coercion in human relationships. However, I can also think of several ways the potential acts of “treating someone as a servant” can be resolved without enforcing sole legal custody to the pregnant woman. For example, the law could make clear that in the case of abortion the surrogate cannot be sued for any money that has previously been paid to her and that she is not liable for any damages. It can be clarified that any medical decisions regarding the pregnancy are hers alone to make. I would think this right to bodily integrity would be upheld by the courts in any case, but legislation could articulate and make it crystal clear to all involved. In generally, the surrogate can be given more power in the contract negotiations which make clear that the prospective parents must treat her with respect. If respect can be specifically defined, we can actually legislate it (the surrogate must have a lawyer, she must have a therapist, she must get a minimum wage — we can even mandate she get a massage once a week.) Treatment issues are thus solved as the power dynamics are clarified.

                    I would just comment that as you know all contract labor law goes back to indentured servitude. I suspect you may have more of a problem with the history of contract labor law.

                    I do not, perhaps, understand the specific legal definition of intention. I am using intention in a conventional way, in which intention can be conveyed by acts (transfer of the embryo, for example).

                    I think intention can be shown through acts by a non-pregnant expectant parent in a variety of ways, including signing the contract, transferring the embryo, going to ultrasounds, attending medical appointments, buying pre-natal pills, paying for medical care of the pregnancy, attending the birth, supporting the pregnant mother economically, telling your community (friends and family) that you are expecting a baby, and, generally, making one’s intention known through actions. These are continuous acts of intention in which unmarried fathers use under the law to claim rights. The pregnant woman, if she allows a man or a couple to be involved in these acts, demonstrates an on-going relationship and understanding that the other party or parties have an interest.

                    You put a emphasis on pregnancy determining custody in a way that I do not. In the case of a split before birth, I wouldn’t cut out the other parent, genetically related or not, from custody. I think the ability of one person to claim custody over all other involved parties undermines the human right to form a family.

                    Possible legal harms: A lesbian couple gets pregnant and the mother dies during from complications of the pregnancy during birth. Her family is at the birth. Her family immediately claims the child and refuses to give custody rights to the other mother. If she has little or no legal claim on custody, custody could revert back to her family unless they allowed the other mother to adopt.

                    Under your definition there is no relationship between the second mother and the newborn which would make the second woman not a mother, but legally alienated from the infant, while the relatives of the dead woman could claim a legal family relationship.

                    It may be interesting to think about this concept in relation to the history of legal miscegenation. In these cases you see the inability of parents and children to claim legal family relationships. Many couples were prohibited from legally marrying. The children of these mothers were legally alienated from their other parent. In cases of long term relationships, fathers got around these laws by selling land to their children for small amounts of money. The children of interracial couples were legally disabled because white fathers were unable to devise property inheritances on their “illegally” born children. If white fathers tried to will land or money to their children, their relatives often contested the will. Because there was no legal relationship, the relatives (even distant cousins) won and the children lost. There were many situations in which family members promised to protect interracial children and then betrayed them after the death of the “non-legally recognized” father. The children were legally alienated from their “not-legally recognized” fathers because the father and mother were forbidden from marrying.

                    The above history is one reason I prefer gestational surrogacy to be legally recognized. I distrust ad-hoc, pseudo-illegal arrangements. I am alarmed when the state forbids people from being able to define their own families. People should not have to rely of the relatives of their partner from not acting in an unethical manner. I am particularly alarmed if the law actively works to negate and discourage the choices made by people who are attempting to form families.

                    “According to the condition of the mother” does not always counteract coercion. The refusal of the law to recognize the legal connection of other parents beyond the pregnant mother can be an oppressive legal situation.

                    I would hope that that eventually pregnancy could be entirely removed from the realm of the body, which resolves all of these situations.

                  • I’m a bit on the fly today so I’m only picking one small part of this to comment on–but it isn’t because the points aren’t good one or that I don’t think there’s a discussion to be had. (Indeed, I think we ought to find a conference and have a panel?)

                    Here let me say a few words about the idea of intention. The way law is set up, intention is something that typically matters at some specified moment in time. So for instance, If you and are negotiating the sale of something, what matters is that we accomplish a meeting of the minds–a moment when we agree to the deal. At that moment, we each have the same intention (to buy/sell whatever) and we’re then locked in. I cannot change my mind without liability and neither can you. We are bound by that one moment.

                    Intention is all in your head so you can see that it can be hard to prove–but we prove it by proving conduct. Could be saying ‘I agree.’ Could be signing the contract. Could be nodding. Could be other behavior. Once you prove it, that moment in time when there was agreement becomes more important than all the other moments around it.

                    The thing is, we all know that sometimes people make agreements but then act in ways that aren’t consistent with them. (My kids do this all the time–commit to clean their rooms and then don’t, say.) But there really might have been intent at some given moment in time–some moment we identify as critical.

                    One people’s subsequent actions are inconsistent with intent there are several possibilities. Both you and I could act in ways consistent with some new shared intent–say that the delivery of the time will be later. I think (am not a contracts person) that then we’d say there has been some sort of modification of the intent–and we’re still agreeing. Trickier is where one person acts in some other way. Having signed a contract you cannot just change your mind. You are bound.

                    The hard question for me is what you do when intent and action point in different directions. How readily do you find some new intent? The cases I come back to are those where someone says ‘I won’t be a parent’ but then they surely do act like a parent (whatever that means.) In those instances I really don’t care about intent at some earlier time. And I think in order to be able to act like a parent there must be some acquiescence by the person you originally agreed with. So I’d toss out the old intention.

                    All this is very tricky with surrogacy, of course, since it isn’t clear what acting consistent with intent might actually entail.

                    As I go on about this I’m catching glimpses of a middle ground that looks kind of interesting–for another time though. This is long (and I fear confusing) enough.

      • I’m with you on this one.

      • I have to disagree. Intent and genetics are far more important than simply carrying a baby and suggesting otherwise really makes no logical sense.

        • You can certainly but I don’t think any particular view on these matters can be justified purely on the grounds of logic. These are value-laden issues, after all. You place a value on genetic connection that I do not–but one take on this is not more logical than the other. In the same way, one can say that intent is more important than carrying a baby but that’s no more logical than the reverse view.

          I think we all start with some assumptions–about what is important and what is not, about which are legitimate or good goals and which are not. And from different assumptions perfect logic will lead to different conclusions.

          I don’t mean to defend illogical reasoning, by the way. I think pointing out failures of logic is valuable. But the fact that we disagree doesn’t mean that either of us is illogical. That conclusion just doesn’t follow.

          • There is a logical point about the matter of intent actually- one could say that a person who does not intend to be a parent probably won’t be a very good one. That’s a position based on logic. However in my opinion, the reverse doesn’t follow- that just because a person intends, that makes them the best parent.
            There’s also the matter of what society should encourage.

    • The parental status of a surrogate is, of course, a huge question and maybe I will move it back to main post as we haven’t discussed it for a while. You’re right, of course, that in surrogacy the intention is never that the surrogate be the legal parent.

      The reason I’m not wild about intention generally has to do with those instances (there may not be many) where expressed intention and subsequent behavior do not match up. So the intention is to do X but what people actually do is Y. Say I intend to be a parent and commit to the child but I don’t actually do it. I don’t see why I should prefer intention to actual performance. Intention tends to prioritize one particular moment–the moment that we signed the contract, say. But life, especially life with children, isn’t just about that one moment. It’s about actually being there and doing things.

      I’d hope that generally intention and performance match up, of course. And often they do.

      • You place an enormous burden on the surrogate by making her a legal parent when she has no desire to be one. I see no reason to force someone into a legal relationship that they have no desire to be a part of it. It’s like demanding that a nanny or babysitter be a legal parent simply because they fed a child in their care for a long weekend. The nanny is not biologically related to the child, nor did the nanny intend to be the child’s parent. However, had the nanny not fed the child over the course of a long weekend then the child might well have died of dehydration. So a nanny should be a legal parent simply because he or she kept the child alive for some period of time? It really makes no sense to me.

        • A babysitter and a pregnancy ate worlds apart and dont even belong in the same sentence. being part of the same body is not analogous to performing work. of course the meaning of the fact of pregnancy may differ from person to person, but it is not a form ofcaregiving, it is a physical condition. on this i dispute julie too, who has also likened pregnancy to caregiving, while ascribingit much more,meaning than you.

          • Excuse me Julie, I misread what you wrote above. You wrote that you support having pregnancy recognized as something other than child care. What confused me is that in other places I recall that you’ve stated that the pregnant woman is the only one to have cared for the baby.

        • See now here, I agree with you.

  5. I’ve commented before, but it has been a while. My son was born through gestational surrogacy (also in NC). It is the norm here for all IPs and surrogates to be evaluated, regardless of relationship. I agree that intent matters. Our GS never considered our son hers & said that her surro pregnancies felt different from the pregnancies with her children & that was intentional. She considered herself a caretaker for our child.

    I’m with you on everything except for the idea that the GS should be the legal patent. Maybe I’m too close to the situation, but I cannot fathom having to adopt my biological child because I did not carry him.

    • A few of brief points. First, I’m delighted to hear that everyone has to be evaluated and go through that process. This seems necessary to weed out people who really just aren’t really up to the undertakings.

      Second, I agree that intent matters in real and important ways. Thus, I think it is clear that the surrogates clear intention not to be a parent affects how she manages the pregnancy. So, just as you say, the clear intention of all concerned meant that she never considered your son to be her child. I can see how important that is. I don’t mean to deny that intent is crucial in this way.

      But (and this is third), saying intention is crucial in shaping how the parties behave isn’t the same as saying it needs to be crucial in law. This is where I guess we disagree. I worry about those cases where people intend one thing but then do another. I’ll go with the ‘actions speak louder than words’ approach in those instances. And if there is a fight between IPs and a surrogate I would rather empower the surrogate than the IPs. (Intention favors the IPs, I think.)

      Finally, I see your point about adopting your own child. It’s a problem in other settings to. (If a married lesbian gives birth in MA her wife is a legal parent in MA by virtue of the marriage, but most lawyers would tell them to adopt in order to ensure legal parentage.) I don’t have a good answer to that. (Yet?)

      • Agreed to that point. you relationship is exactly thr same as the childs fatherand if he doesnt have to adopt why should you? the whole thing is,very messy. if however you had no genetic connection it would be much clearer to me that the surrogate is morr of a parent. my main idea is to move towards immanent facts and away from transactions in establishing kinship.

    • I’m trying to figure out if you are using the term biological mother in the normal way which would be equal for males and females alike – either you’re the source of another person’s biology or your’re not. Many women are led to believe that they are biological mothers because they used their biology to gestate another woman’s child and when I say that everyone knows motherhood begins at birth – during pregnancy a woman is an expectant mother. At birth when motherhood starts there is going to be a woman related to the child biologically as that child’s mother and if it’s not the woman who gave birth her name does not belong on a birth record as the mother. She’s relevant to the child’s health for sure because her ill health can damage a fetus that otherwise might have developed normally but medically in terms of just plain old truth in reporting it’s a lie to put her down as mother and it creates really screwed up records if the biological mother has to adopt because adoption is not for biological parents every one knows its for biologically unrelated parents. That is the whole point of adoption – to keep track of what biological parents do with their kids because kids can be sold and there needs to be some accounting for the huge obligation that comes with putting a person on this earth. I am so sorry if you could not have your name put on your child’s birth record at birth as mother. Not if the child’s mother was an egg donor though. People in my state exploit laws that are suppose to be for people whose children are delivered by gestational carriers – not people who pay to have other peoples children gestated by other people. Then its just like people buying a baby. It’s black market adoption where unrelated people get their name on the record and the whole truth is totally concealed.

  6. I’m not sure I understand your comment about biological motherhood, but I guess in my case, both I and our gestational carrier are the biological mothers since I supplied the genetic material and she had the physical relationship via pregnancy.

    NC supports pre-birth orders, so I was able to have my name on the birth certificate. I have a friend who went to court a few weeks ago to have her name on her child’s birth certificate as the mother b/c NY law doesn’t recognize surrogacy and despite being the genetic mother of the child, my friend was going to have to adopt her child if the judge did not rule in her favor. The judge did.

    We can debate the meaning and importance of biological motherhood vs intended motherhood and whether a genetic connection should matter over other connections, but when you are truly in that situation and dealing with the legal ramifications, it is not trivial. I could feel my friend’s desperation as she dealt with the fact that her connection to her child was not immediately recognized legally simply because the baby was not carried in her uterus. Would she had adopted her child if necessary? Of course. Should she have to? Absolutely not.

    • I agree with you. I get concerned when people abuse the pre birth order when the only claim they have to motherhood is their marriage to the father say, for instance and their desire to raise his child.

    • No you are not both biologicall mothers. Everyone has a mother and a father and sometimes the woman who gives birth is not their mother.

      • If you said “Everyone has a genetic mother and a genetic father and sometimes the woman who gives birth is not the genetic mother” then I would certainly agree with you. On the other hand, if you said “Everyone has a legal mother and a legal father” then you would be wrong. It’s not an accurate statement of the law. (The last part–“sometimes the woman who gives birth is not the legal mother” would be correct.) If you said “everyone has a social/psychological mother and a social/psychological father” I’d again say that this was wrong–not accurate as a description of reality.

        The problem for me is that you haven’t used any modifiers at all, and this makes your second statement ambiguous. It might be your opinion, it might be right, it might be wrong. Cannot say without understanding more clearly what you mean.

  7. Legalities are social constructions, ultimately. I do not understand why, if you could, you would mandate that a surrogate mother be required to be the legal mother of a genetic child not connected to her. You are constructing rights and obligations in a interesting and rather heavy-handed way. In effect, you would legally enforce surrogate mothers to become the custodial parents of the infant, and would hold her criminally responsible if she gave the baby away without a formal adoption procedure. You would allow the state to charge her with the crime of abandonment for her actions. You are not only mandating a permanent tie to the father of the child, you are holding her legally responsible for feeding, clothing, ect. for the child.

    In practice, this legal regime allocates rights and obligations in ways that is probably not particularly healthy for the child. For example, think about the surrogate mother who carried the child of Giuliana and Bill. (Quite wonderful of them all to share their experiences with surrogacy, infertility, breast cancer, ect.). The labor and birth was so beautiful. She is clearly a wonderful person and did a wonderful thing for Giuliana and Bill. Yet, she has her own husband and children. You are imposing legal obligations on her which she clearly does not want to take on. She gave Giuliana and Bill a great gift by performing the labor of gestation and pregnancy. By replacing Giuliana as the legal mother, it seems to me that you are adding legal confusion to the situation, and not clarifying but confusing the role of legal custody in ways that will probably hurt the child. Remember, Bill is stil the legal father, and let’s suppose a surrogate mother wouldn’t adopt.

    In surrogate situations, the surrogate mother is not the only person involved. Fathers are involved and have custodial rights and legal obligations to the child. In fact, they have just as much custodial rights as mothers. And the father will have financially supported the surrogate mother throughout the pregnancy, so no court in the US will deny his custodial rights.

    Parents who hire surrogates want children so badly. They will go to court to claim custody of their child. Your suggestion would set up an immediate situation of a custody fight to end all custody fights. Remember — the father is still the legal father. He would put an immediate legal injunction in place on custody of the child. What a mess!

    At that point the child has three people who have custodial claims: Bill, Giuliana and the surrogate mother. (Or, perhaps you believe only Bill and the surrogate mother should have claims.) Bill lives in a different state from the surrogate mother. Bitter legal contestation would most likely occur as Giuliana and Bill fought for custody with the surrogate mother and her family. A non-ideal custodial situation would result, with the child being shuttled from Chicago to Colorado for the rest of his life. Genetic parents who have gone to the extent of surrogacy to have a child are most likely to fight hard for their child in court. I don’t imagine that things would end with one court fight. Court would be revisited for years, and the biological mother would be terrified that if her husband died she would lose custody of the child. I can’t imagine that would be good for the child to grow up knowing that would happen. I also can’t imagine that this situation wouldn’t be extremely antagonistic.

    In short, I think your idea of giving the surrogate mother legal rights to the chid is a bad idea — both for the emotional health of the child, and for reasons of legal practicalities.

    It also denies the rights of the biological mother to the child, which makes no sense in our legal family law structure. Biological fathers have rights to their baby. Why wouldn’t biological mothers, who support the surrogate mother throughout her pregnancy, also have legal obligations and rights to the child? To suggest otherwise contradicts all legal precedent that follows English common law and degrades the rights and obligations of the father.

    But perhaps you want to give 3 people custody rights of the child?

    Anyways – interesting and thoughtful blog!

    • First off, I totally agree about this all being about social constructions.

      Perhaps the best place for me to start is with this question: What do I worry about with surrogacy? Put differently, what do I think are the most likely problematic cases. And with that answer in mind, how can I best structure the law to manage them.

      I worry about the dynamic between the surrogate and the IP. It seems to me that in general the IPs are higher income/higher education people. I’m afraid this gives them greater power. And I think the IPs are inclined to want to control the surrogates. So I worry about exploitation. Frankly, the stories of surrogacy in India feed into this, as does the subtext of lots of surrogacy stories–everything from Baby M to the one that was in the NYT several years ago with the photo of the surrogate barefoot and pregnant.

      Since this is what worries me I am interested in things we can do that will empower the surrogate. (Empowerment is, to my mind, better than protection.) And I’m particularly worried about this that further enhance the IPs power over the surrogate.

      Now in that context, I think about the legal status of the surrogate when the child is born. It seems to me that making the surrogate the legal parent gives her power–quite substantial power. So I like that. But not unlimited power because, as you note, under current law the male IP (or a male IP) will typically be the legal father.

      I also think this will only matter in a tiny number of cases. The vast majority of surrogates go through with the agreement. They do not think of the child as theirs. And in any case where that’s the dynamic it will be just fine. SIgn the papers, give up the child. (I’ll agree that maybe you need a specific and shorter process to confirm surrogacy.) But in the small number of cases where there really is deep disagreement, the surrogate would win parental rights.

      More importantly, I think that the notion that the surrogate had this power might change how the IPs treat her. They’d need to be respectful and considerate, I think. Or at least, they’d have more reason to do that. (I’m sure many/most are already.) I don’t think it would lead to more litigation, as you suggest. The IPs have lots of reasons to want to avoid custody litigation and clearly could do so if they have a good relationship with the surrogate.

      I suppose the dangers you refer to are all there. Some of them I think I could deal with using some refinements of the law, etc. But some probably not. The key thing is probably that on balance I think these sorts of problems are much less likely to arise than the ones I’ve mentioned above. I think realistically any legal rule will generate some unfortunate results and you have to acknowledge that this could happen. But if they are few enough then the benefits (what I just described) outweigh them.

      I’m well aware that what I’ve just written is rife with assumptions–about what situations are common, about how people will act. But your scenarios are also premised on lots of assumptions. I think we really have to make some assumptions (which might be grounded in what data there is) and ought to be explicit/transparent about that.

      I think this is actually the way it works in the UK, by the way. And women do agree to become surrogates and, just as here, with proper screening it generally works out just fine.

      • The problem with this solution julie is that if the surrogate is the legal parent, the ips are free to back outof the deal leaving the surrogate holding the bag with,a child she doesnt want

        • How about if we said that the IPs are financially responsible for the child? If no one wants to raise the child when it is born (something which I don’t think is common) forcing someone to raise it won’t work well. But you could force the IPs to provide child support and that would improve the ability to find a loving home for the child. If you think it is unfair to have the IPs pay child support forever, you could assess them some diminishing charges, or you could charge a flat fee or something. As many have pointed out, since the child only exists because of the IPs actions, it seems fair to me to ask them to pay for the consequences of their acts.

          • since they have no legal relationship to the kid they cant be ordered to pay it anything. perhaps they are liable for breach of contract to the surrogate herself but the contract may,not either be valid if the surrogate is considered a parent as its like selling a child. actually that would affwct the payment for all surrogates, because isnt it illegal to pay someone to give up their,child?

            • We can change the law to impose that obligation whether they are legal parents or not. The law can be flexible that way. The question you raise turns on how we characterize payments. If they are for terminating parental rights then we run right into what you suggest–selling a child. But it’s really rather odd because the law being so flexible, we can say she’s being paid for time/trouble and then you aren’t selling a child.

          • You want to divest them of custody rights yet mandate they pay child support? In family law, usually economic support is connected to custody rights. (Thus a unmarried man who supports a woman pregnant with is child is in a good position to claim custody.)

            • It is indeed customary to have child support and parental rights paired together–quid pro quo, sort of. But I don’t know that it has to be and I don’t know that it should be. Certainly it is worth exploring what happens if you decouple the two?

              In terms of justification, one could be obliged to support a child under a fairly unremarkable tort-like principle that one is financially responsible for the consequences of one’s actions. So if you cause a child to come into being you bear some financial responsibility for it. You can think about how this plays out.

              You could assign legal parenthood on some general view of the best interests of children. So it might not be in the best interests of children (generally) to assign legal parenthood to guys who have participated in one-night-stands but have no ongoing relationship with the women involved, especially of the woman objects. (I know some people will react sharply to this, but try to just focus on what will be best for the child.) Maybe I should start with the more obvious case–a rapist might be held financially responsible but not be given legal parental rights and I think this result could be justified as being generally best for the kids involved.

              • I’m completely comfortable socializing the costs of childhood to the wider society. I think the idea of taking “responsibility” for “making children” devalues the benefits of children for the wider society. In general, I reject this trope.

                I not only believe child care (food, education, housing) should be subsidized by the wider society, I believe parents should be given social benefits, such as retirement, for raising children. I think all pregnant women, including surrogates, should get compensation from the state for undergoing the risks of pregnancy. Not for medical expenses, but for undergoing the biological process of pregnancy and the risk of pregnancy. These children, after all, will be supporting society when as they grow older and the older generation ages.

                I don’t care about biology, but about intent/ human right to form families. I’m fine with a one-night stand not receiving parental rights, especially if there is no prior relationship and no possibility of agreement of intent. (And while a rapist may have a sadistic “intent”, he does not have legal permission, and the coercion removes any of his rights to intent.)

      • hmm – I just lost a very long comment. Apologies if I doubled posted.

        Brief points:

        1) I think it is a constitutional violation of the equal protection clause of the 14th Amendment if the genetic legal father is given rights but the similarly situated genetic legal mother is not.

        She experiences a legal disability directly related to her sex which is unjust and, in my view, unconstitutional. (of course, this ain’t been tested before SCOTUS.)

        2) We’re not talking about India, but the legal regime in the US. (Or maybe we are talking about India, in which case I defer to legal scholars and/or anthropologists studying India & surrogacy, because I don’t know anything about that situation.)

        3) I do not think surrogates are treated better in the UK then the USA, but perhaps I’m mistaken. Haven’t done a study. I do think the wild west of legalities in Canada and other countries where things are not clear do not empower either surrogates or egg donors. I think it causes confusion and legal vulnerability to the surrogates & egg donors. (They can be criminally tried in court. In Canada a referral group is presently being tried by the state. The situation is a legal mess.)

        Clear practices & systems for surrogacy are not as in place as they are in reputable clinics in the US, such as CCRM in Colorado. CCRM helps manage these relationships, provides legal guidance/forms, and screens surrogates carefully before pregnancy to make sure their health is not as risk if becoming pregnant (mammograms, ect.) Legal practices in egg donation/ surrogacy are much more ad-hoc in Canada. All of this leads to legal confusion and a certain amount of legal deniability rather then administration by reputable clinics. The ad-hoc and pseudo-legal nature of the situation is more likely, not less, to cause exploitation.

        4) I don’t think it would be a good idea to give 3 people legal custody of the child (surrogate/ legal father/ legal mother). The law plays a critical role in the social construction of parenthood. I think this is a bad idea because we’re looking at joint decisions for education/ health/ where to live/ job transfers — it’s not in the best interest of the child, I think.

        5) I do wonder with which specific treatment you are concerned which occurs in the USA, where the bodily integrity of women pretty well established under the law. We have a pretty good idea of which contracts would be thrown out as violating the constitutional rights of the surrogate. (Parents could try to mandate ridiculous things — “you must eat 5 veggies a day!” But that nonsense isn’t going to hold up in court.)

        6) Empowerment: the power to abort is a lot of control; the legal parents have to give up a lot of control, and invest a lot of trust in the surrogate.

        Once legal adoption occurs, the surrogate has no more custody rights. Prior to birth she has full legal control over her body, including the right to abort. A contract between parties that violates her bodily integrity would be thrown out in a court of law. (Perhaps money paid between parties might be recovered…perhaps. I have my doubts about this holding up in court.)

        7) Legal parents are vulnerable in these situations. They must trust someone else to carry their child. That is a lot of trust and quite a bit of vulnerability.

        8) The daughter of one of my friends worked as a surrogate. It gave her a good feeling to know she was helping people desperate to have a child. Some people feel powerful knowing that they are very fertile, healthy, and are also helping desperate people. They feel a sense of control over their bodies that is empowering.

        9) Some people see pregnancy as powerful and beautiful rather then exploited and “knocked up.” Of course, the meanings of pregnancy, labor, and birth are all socially constructed.

        10) Power is complicated.

        I think it’s interesting that both adoptive parents and legal parents in surrogate situations are frequently constructed as exploitative on the web.

        What’s up with this assumption of the “evil exploitative adoptive mother” (kidnapper!) trope or the “evil exploitative infertile woman?” Is it a carry over from the suspicion that infertile women are witches or demons from the early modern era? Is it because she is not “behaving properly” and fails to uphold “natural” gender roles?

        (Adoption & surrogacy both separate pregnancy from sex in a very explicit way. As practices, they may be viewed as a threatening & radical challenge to traditional gender and sexual roles.)

        anyways, lovely chatting and now I’m procrastinating from work!

        • The Canadian case — the legalities of surrogacy are quite confused in Canada.

          Here’s a link:
          http://news.nationalpost.com/2013/04/01/fertility-consultant-at-centre-of-criminal-case-accused-of-forging-egg-donor-profiles-given-to-potential-clients-documents-show/

          “Ms. Picard is also charged under the Assisted Human Reproduction Act with purchasing sperm or egg from a donor, paying a female to be a surrogate mother and accepting consideration for arranging the services of a surrogate mother — or offering to do so.”

        • I nodded along at your entire comment but especially #7 & #10. Believe me, IPs enter into surrogacy feeling anything but powerful. The majority of surrogates are treated extremely well by their IPs – partly because they are doing such a wonderful act that is so very appreciated and partly because the majority of IPs are decent people who have no desire to exploit their surrogate. And truly? We’re scared shitless that something is going to go wrong & very aware of the little power we have.

          • KeAnne,

            I understand. I think there is a lot of concern about the possible exploitation of the surrogate on this blog, and a great concern that people who are employing surrogates are “rich.”

            I know a woman who has worked as a surrogate (friend’s daughter) and I know people who, due to health reasons, cannot carry their children. People often take mortgages, run up credit cards, beg money from parents and do all sorts of financially unwise things to do IVF and, if needed, surrogacy. People who have no savings are taking out loans with banks to finance IVF.

            I do not mean to say they are desperately poor. They are well off enough to find enough enough money to do IVF. But they often save for years, or take out risky loans, or both.

            I used to think people who did this were rich. The majority are not.

            Israel has a system that finances fertility treatment up to two babies. The USA is terribly inhumane in this area.

            • Israel does not finance surrogacy.

              • Israel finances IVF. I’ve gotten the impression that people think those who need IVF are wealthy. About 20K is a common cost for IVF & medicine. It can be much more expensive.

                • People who need IVF aren’t necessarily wealthy and people who are not wealthy go to great lengths to scrape up the money required. And it is true IVF is subsidized in some places and not others. (Israel has a generous subsidy policy.) I’d also bet that people who actually use IVF in those places where there are no subsidies are wealthier than average. It sort of stands to reason.

                  In some ways my point is about relative wealth–which I understand doesn’t always translate into relative power. I would guess it is rare to find cases where the surrogate is wealthier than the IPs. And in fact, I’d guess the disparity is often fairly substantial. Obviously this is dramatically true with surrogacy provided in India for those from the first world.

                  • We don’t need to bet. There should be an available social study on those who engage in surrogacy and infertility treatments in North America. I think you might be surprised by the lack of relative wealth disparities.

                    Two credit cards with a 20K limits will cover a surrogacy. Many surrogates in the US are married women in middle class families. I do not agree that those employing surrogates are ipso facto wealthier or have more savings/capitol.

                    I can think of multiple instances of people financing IVF and now surrogacy, and are using up all of their savings, not buying a house, and one salary goes completely to the infertility treatments for years. Usually this is not enough and credit cards are run up. The luckiest have prospective grandparents who take out retirement savings.

                    It’s also not a wise to hire a surrogate who is not well established financially in a family with strong support systems. Those upper-class, legally and socially savvy couples, about whom you worry are the most likely to find a surrogate through a well regarded referral system and pay substantially more then a working class or middle class family.

                    The infertile couple who is working or lower-middle class, using debt to finance surrogacy, emotionally desperate, and willing to jump without thinking into a legal situation is the most likely to end up in a problematic situation. Likewise, particularly vulnerable surrogates are those that are willing to work cheap. All individuals involved need to be equally protected from an exploitative situation.

                    My husband said something interesting today: “I wouldn’t trust a surrogate who was willing to work for less then 70K, and would think she should get at least 100K or the equivalent of a good year long salary w/ benefits.” (We’re not doing surrogacy; we were talking about this blog.) I tend to agree with him. Someone desperate for money, not well situated economically, and without familial support are the more likely people, to be involved in a situation that goes south. Wealthy and upper-middle class couples tend to be better at recognizing risk and are more willing to walk away from potentially difficult situations, because as they are less desperate to find a surrogate. They are more likely to keep looking until they can hire a economically-stable married women with prior children who has a supportive husband/partner.

                    Perhaps there ought to be a minimum wage for surrogacy agreements — no less then 70K or something, matched with inflation.

                  • If you can find such a study I would love to see it. I do try to keep up but it isn’t my field (the social science part) and I’m not always on top of things. It’s hard to get general statistics.

                    I’m quite sure you’re right about IVF and the impact it has–and more generally fertility treatments. This is part of why I object to the heavy emphasis on producing a genetically related child. It’s not that I don’t think people have their own internal drives, but I think the culture that values genetic connection above all else magnifies/reinforces those desires. Surely the tragedy of being infertile (in its many and various meanings) is at least in part socially constructed?

                    It’s a really interesting point you make about surrogacy and surrogacy agencies, and I’m sure you are right. The most likely to fail surrogacies are the cheapest, right? Because all the screening and matching takes professionals and costs more. So the established agency surrogacy is both most likely to work and most expensive. This reveals a whole separate topic. I’m not sure what to say about it.

                    My impression (ill-informed) is that the going rate for surrogacy is more in the 20-30K range than anything over 50K. Surrogacy all together via an agency is pricey–like 100K–but most of that isn’t going to the surrogate–which some might think a problem in itself.

                    I really will put up a main post about surrogacy and move this discussion there, though I cannot promise when.

                  • It sounds like an interesting topic, but I’m working on a manuscript, so I’ll probably be avoiding blogs and typing away for the next few weeks.

                    I don’t off-hand have a link to a quant study. I’m not researching this topic right now. Personally I have met a lot of working and middle class people involved, which surprised me.

                    I’d guess that the most desirable surrogates (proven surrogate; married women with their own kids; supportive husband or partner; well-off economically) are on waiting lists and quite expensive.

                    The desire for genetic children is clearly socially and historically constructed. All sorts of things are socially constructed, including who and how we love.

                    But here’s the thing: Just because something is socially constructed doesn’t make it any less powerful in determining human behaviour. In fact, a social construction can be much more powerful then a biological impulse.

                    The tragedy of infertility is socially constructed. In fact, infertility itself is a social and historical construct. But so is birth. And likewise death.

                    It’s unfortunate, but when someone is diagnosed with cancer, society supports the patients. These patients go through medical treatment and emotional trauma . Meanwhile, others tell them to “just get over it.” Many lack empathy. Infertile women are socially constructed as irresponsible, career oriented harpies, witches, kidnapers, evil…. Infertile men are seen as impotent, but most of the time the woman is blamed for the infertility by society, even if it is the man who sub or infertile.

                    Women are castigated for their sexual decisions and blamed for their infertility, although most infertility is caused by both male and female issues. Furthermore, the desire for a family is socially constructed.

                    I cannot see that the fact of social construction makes infertility any less of a tragedy. Our grief over the death of a infant is also socially constructed, and so is our grief when our parents die. But do individuals feel any less pain as a result?

                  • Much to say here. First off, I totally agree that just because something is socially constructed doesn’t mean it isn’t powerful or important. Sometimes you see the opposition of socially constructed to real. I think that’s mistaken. Things that are socially constructed are incredibly real–or at least they can be. But things that are socially constructed can change or be changed and that, I think, is important to note, too.

                    I think the tragedy of infertility is, as you say, socially constructed (I’m not sure about birth/death. There are some underlying biological processes there. The meaning we give them, however, is constructed.) Didn’t mean to suggest that it was any less tragic or difficult for those experiencing it because of that. What I meant to suggest was that it doesn’t have to be this way. That it is within our capacity to change how we view infertility–though I don’t mean our individual capacities.

                    I guess what I mean is that we ought to be mindful how we talk about this things as that conversation is part of the process of social construction. Thus, the comments here about the only real parents being those who are genetically related reinforced that idea and reify the structure. That makes it harder for people who are parents but not genetically related. But perhaps all this is far afield.

                    Back to surrogacy, I don’t know if it is true that desirable surrogates are on waiting lists and are quite expensive. I will try to inquire to find out. But I’m also not sure what makes a surrogate most desirable. Track record, as you suggest, perhaps. Many places require them to have their own children. All good things to think about.

                    Good luck with the manuscript. Thanks for taking the time to comment so thoughtfully.

                  • Many thanks for you comment. We agree about social construction, although I would suggest that biological constructions can also be changed, and are perhaps easier to change then social constructions, in some cases.

                    Also agreed that birth/death have biological components. Much like insanity, a biological component & a social component.

                    We also agree about biology – I don’t care about it for myself. I think intent is the most important component of reproduction. Also think it’s a human right to form a family.

                    Many thanks about the manuscript. Apologies about the multiple posts – I think I was triggered a bit by some of the commentators on the blog (and the upcoming deadline.) 🙂

                    I think there is something you may be saying about surrogacy & legal motherhood I am not yet clear about. I’ve noticed that legal scholars sometimes have a point that I misinterpret because I’m not understanding a subtlety about the debate. I hope to follow along and learn more.

          • I think I was overbroad in what I said. Sorry. IPs must feel anything but powerful in many ways. The experience of infertility is a difficult one (to say the least) and while gay men using surrogacy don’t have exactly that experience, they probably aren’t feeling powerful either. So I said too much/spoke to generally.

            In the larger world, however, IPs are typically wealthier and more privileged than surrogates. Surrogacy is, after all, expensive. And there are very few upper-middle class surrogates–excepting those who do it for relatives/friends. And so I do worry about the power dynamic there.

            I don’t know about whether the majority of surrogates are treated extremely well by the IPs. I certainly hope that is true. But it is also true that at least some IPs really try to control their surrogates.

            I suppose what I mean to say is that I take your point–you are right that in many ways the IPs are also powerless and are doubtless decent people. This is actually why I’d like to find ways to make surrogacy work. I just think it encourages best behavior if the surrogate is considered to be a legal parent. And if surrogacy is managed well and if everyone is decent the IPs are going to end up as the parents of the child and that is as everyone wants it. Who is initially a parent matters most in the cases where things are not going well. And I’d still put my thumb on the scale on the side of the surrogate.

            • If the problem you see is behaviour issues during the pregnancy, I do not understand how a post-pregnancy legal custody adoption arrangement changes anything in a helpful way. Are you hoping the threat of the surrogate keeping the child will keep rude people from being rude? They don’t have any control over her during the pregnancy and, in fact, all parties don’t have to interact very much at all if they don’t want to be social. Why would anybody be unpleasant or rude to the surrogate unless he/she is an sociopathic troglodyte? I know some people are quite social and go to dinner & lunch together and give a lot of gifts to surrogates like spa visits, ect. But clearly that’s not what you find objectionable. Perhaps I am not understanding your argument.

              You trust the surrogate more then you trust the infertile parents. You think the infertile parents are inherently untrustworthy. I would love to know what you are worried about in the USA in terms of exploitation that legal custody would fix. What is she going to say…I’ll keep the child unless you do….???? Or are the couple supposed to be terrified for the next 9 months that she will keep the child unless they do? What? Or are most people ignorant of the laws and simply trust the situation that the surrogate will give the genetic child to the genetic parents? (most people assume situations will naturally resolve and are not legally savvy.) I do not think parents ever consider that the surrogate might keep the child but in their worst nightmares. Certainly it wouldn’t change one’s behaviour.

              Personally, I would go to another country before I risked that situation with an embryo. The risk/reward chances are too much. I wouldn’t risk losing custody of my cat, whom I dearly love, much less my child.

              I think everyone should ask themselves: You have an embryo and no children. Or your daughter and her husband have an embryo and are infertile. Would you risk the situation for yourself or your daughter? Would your husband? Would your daughter? Or would you go to another country with clear custody? What is the most logical thing to do? Which decision is less likely to place stress on your extended and nuclear family?

              Also – I think you’re setting up a situation with three legal claims on the child. I do think it’s a violation of the equal protection clause to deny the legal mother her claims to the child. She hasn’t renounced custody. This is an interesting philosophical discussion, but if it’s contested I don’t see SCOTUS or many state supreme courts upholding the proposed law. Finally, it’s not just or equitable to give a father of the embryo legal rights but not the mother. What’s up with that sexual inequality? Or do you want to take rights away from both the father and the mother, although both are economically supporting the embryo/fetus and neither have renounced custodial rights.

              In any case, surrogates are the legal parents in places where surrogacy is semi-legal unless done for purely altruistic reasons. You and I both believe women should be well compensated for the labor of, well, labor. She is entitled to compensation because she is doing a valuable job which is not just valuable to the parents but to human society. (And I do believe all mothers should be compensated by society for their labor, not just surrogates.)

        • For me, the aspect I get stuck on is when neither the surrogate nor intended mother is the genetic mother of the baby, and there is a dispute. What matters more, pregnancy or intent? I tend to lean more towards pregnancy… but not 100% quite yet.

          • we’re forgetting that the IPs are more likely to back out than the surrogate. What if no one wants the kid?

            • Huh? Why would they back out?

              People wait years in the U.S. to adopt a baby or a toddler. A lotta people want that kid and a lot don’t care if the child has severe disabilities, mental or physical.

              A infant would be adopted immediately. Wouldn’t matter if the infant had down syndrome, was blind, ect.

              • surprising rigt? i saw it in acouple of places, one was reproductive lawyers website. unfortumately i dont recall the exact sources for you. i recall onecasein whoch the twons wer inded adopted.

              • There’s a study out of Canada–and it is the only one on the topic I’ve seen–that showed that if you look only at cases where someone in a surrogacy changes their mind, there are more instances of the IPs backing out than of surrogates backing out. I know it is counter-intuitive, but it is, as I said, the only study I’ve seen on the subject. I’m trying to track down the source for this and will get back to you.

                • That is shocking. I would be interested in seeing it. Canadians do engage in surrogacy “under the table,” although it is very unregulated and any payment to the surrogates is illegal under the Assisted Human Reproduction Act.

                  http://laws-lois.justice.gc.ca/eng/acts/A-13.4/page-2.html#s-6.

                  (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
                  (2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
                  (3) No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.

          • Why do you think the intended mother is not the genetic mother of the baby?
            http://en.wikipedia.org/wiki/Asherman's_syndrome
            Some women cannot carry to term or implant.

            • I didn’t mean to imply that was always the case – I know there are various reasons why a woman can produce eggs but can’t carry a pregnancy, or had previous embryos left from before becoming infertile. However, sometimes a separate egg donor is used and those are the situations I get stuck on.

        • I really appreciate your points here and I think it is time to move out of the comments and into a post. If it is okay with you I’d like to take parts of your comment here and build my next post around it. It does get hard to read long comments and the further you go, the narrower they get on the screen–which I think makes them harder to read.

          • oops – apologies. When I started to comment I couldn’t see the bottom of the page. Didn’t read to the end first.

            Most welcome to use the comment.

            I do not understand why people think that the mother isn’t the genetic mother. Yes, many people use egg donors. But multiple women cannot carry because of (1) Asherman’s syndrome (2) unexplained multilple miscarriages (think upwards of five – horrible trauma) (3) severe endometriosis (4) unexplained implantation problems – perhaps immune issues.

            It’s odd to assume that all infertile women cannot produce healthy eggs. Some can produce a lotta eggs, but just can’t carry. I know somebody on medicine from panic attacks because of multiple ectopics. She makes great eggs & embryos, but they won’t implant in the right place. Both tubes have now been removed in medical emergencies, but the risk of implanting outside of the uterus still exists. She still has embryos, and is working up the nerve to try again. Someone like her might turn to a surrogate.

            At some point we have to think about what is the most humane thing to do. If surrogates do not get attached to the infant, and the parents are desperately attached, and many have experienced trauma as a result of their infertility…why would you add to their trauma with a unclear legal regime that puts them at risk to loosing their genetic child?

            Yes, we both are rather uninterested in genetic claims, but parenthood is socially constructed to favor the fact of emotional attachment to their genetic material. The parents will feel real pain and real grief and real trauma if they lose what they see as their child. I cannot imagine giving them the child for a few days and then taking her/him away. That seems both unmerciful and unjust.

          • I’ve been reading further about your surrogacy posts.

            I cannot tell if you worry about the equal protection problem that is presented if the genetic mother must adopt but the genetic father does not. This situation obviously legally disables her, and I think it’s a clear violation of the equal protection clause.

            I cannot tell if you believe if the non-genetic same-sex partner in a relationship should be denied parental rights. I originally thought that you did, but now it looks like you hold inconsistent beliefs in this area.

            I originally thought that you thought pregnancy trumped all other legal arguments for the claim for a child (intent, biology, marital relationships, common law relationships, ect.) But now I suspect you hold a contradictory position: for you pregnancy trumps all custody claims only in gestational surrogacy cases (legally triumphing over genetics, intent, economic support, relationship of the genetic parents, ect.) but you do not think pregnancy should be the sole determiner of custodial rights in same-sex relationships.

            I think it is a human right for all people to be able to both control their fertility and form families. Your position on pregnancy/surrogacy tends to suggest you do not believe that those who are medically disabled have the right to form families with help another consenting adult. You would position the woman (but not the man) in a position of legal alienation from her custody rights. And you are willing to position her as a step-mother before the law, alienating her from her child and never allowing her to be in full custody of her child. (or of any child, unless the state permits her to go through an adoption process.)

            Perhaps you also believe men do not have rights over children? If so, why wouldn’t all husband have to adopt their own children? (Certainly prospective parents are economically supporting the embryo/fetus and are demonstrating intent before birth, much as is required for a unmarried man to claim rights to his child after birth. The prospective parents did not walk away from the gestational surrogate. They show intent throughout the pregnancy (and if they do not, I agree that would be cause for contesting rights.)

            You also do not want to equally burden all in society with the adoption process. If genetics and intent are legally not relevant to custody — why shouldn’t all men go through an adoption process? For that matter, why shouldn’t all women have to do this so that we do not let pregnancy trump intent, genetics, kin relationships, emotional attachment, and the best interest of the child.

            You only would mandate state interference and prohibitions when a woman has a medical disability and is unable to carry. That is an interesting position, and it suggests you think pregnancy is the primary determiner of custody. (I suspect that your position raises the question of equal protection in respect to men.)

            If pregnancy trumps all else in state recognition of legal custodial parenthood, there is a legal disability imposed on all men. (because why should marriage or common-law relationships or same-sex unions accord custodial rights in if intent/ relationships/ genetics and best interest of the child are discounted?) Positioning pregnancy as the trump card structures pregnancy around…well, it is way too biological-function/ biologically determitive for me.

            • I do worry about the EP issues. I would be inclined to treat all IPs the same–whether they were male or female, whether they were genetically related or not. But of course, the law does not do this, even though there are many ways it could.

              To be absurd for a moment–If a man who provides genetic material to create a child is a father than perhaps a woman who provides genetic material (but not gestation) is also a father? And perhaps a child born to a gestational surrogate using genetic material from a straight couple has one mother (who gave birth) and two fathers (who gave genetic material). No law reaches this result, but it would solve the equal protection problems, I think.

              I am stopping here not because you don’t ask good questions–you do–but because I cannot practically answer them all here. I’m sure you are right to point to inconsistencies. I don’t have all the answers and I cannot make this all work out as I’d like. I do start from some general preferences/principles.

              In general, I have some preference–perhaps wrong-headed–for a simple set of rules that could be applied in all settings. So, for example, I don’t like the idea that there is one set of rules for parentage for those using ART and entirely different rules for those conceiving via intercourse.

              In general, I think the law of parentage ought to shaped with a goal of serving the well-being of children. One critical thing that this means (for me) is that the law must recognize and protect the real and living parent-like relationships that a child relies on. Where two people raise a child together and both adults function as parents, the law must recognize and protect those relationships whether they are whether they are defined by genetics or not, whether the parents are married or not.

              The very tricky part for me is the beginning. Who are the legal parents of a newborn? It seems to me consistent with my preference for performance/function the pregnant woman is one answer. The question is can you get a second parent from the get go.

              That’s just a brief look at some of the big picture things, I think.

              • Just rereading through old posts…it’s interesting you came up with 1 mother and 2 fathers b/c during our surrogacy experience, I told people that I understood how fathers-to-be felt during their spouse’s pregnancy: you were a part of the process but none of the physical changes are occurring in you.

  8. “So, for example, I don’t like the idea that there is one set of rules for parentage for those using ART and entirely different rules for those conceiving via intercourse.”

    Ah – I see. I am not sure it is possible to not change the rules, as the situations are so very different.

    I agree about the best interest of the children. Once the child is born, the importance of the relationship is very clear. I favor intent over pregnancy as performance. Although I believe the pregnant woman has absolute say over any medical decision up to the point of birth, I do think it is possible for her to have agreed to be a guardian who relinquishes rights at birth in one very narrow situation (legal contract/ a report from a counselor/ her own lawyer/ not using her own genetic material/ and legal intent made clear by the transfer of an embryo).

    As I think we have a human right to create families, I would be more inclined to give parental rights to three people at birth rather then exclude the other parent(s) who have displayed intent.

    I see what you mean, in terms of the word “father.” As long as we’re thinking about ways to change the law, we can move to the gender neutral form, and say “parent.” (One of my friends had to sign under the term “father” on the birth certificate, and this was a rather insulting experience for her.) But I do take your point in terms of legal history/ precedent and the historical family law definition of “father.”

    In terms of equal protection – something that impresses me is how enslaved Americans argued for a capacious definition of citizenship far beyond that of a narrow state citizenship. It suggests to me that these arguments about rights and obligations are powerful and public discourse & proposed legislation may have a role in constructing a more expansive vision national citizenship.

  9. Tess | May 27, 2013 at 2:15 pm | Reply
    “I’m completely comfortable socializing the costs of childhood to the wider society.” Sure me too because I want to be a member of a compassionate society that provides a safety net for people in times of emergency. I may never have a fire at my house but I’m not the least bit bothered by paying the taxes that fund my fire department nor am I pissed off at people who don’t work but still get pulled from burning buildings.

    “I think the idea of taking “responsibility” for “making children” devalues the benefits of children for the wider society. In general, I reject this trope.” WTF? People have to be responsible for their own actions or there would be chaos. People have to be accountable to and for the children they create or there will be people selling their children on the black market before and after birth in advance of even conception people will be buying and selling and trading in human life as a commodity. Everyone should be held fully accountable for their own offspring with no exceptions and no private off line agreements for custody and control or parental title over their offspring. What we don’t want to do is turn people into breeding machines and children into durable goods.

    “I believe parents should be given social benefits, such as retirement, for raising children. I think all pregnant women, including surrogates, should get compensation from the state for undergoing the risks of pregnancy.Not for medical expenses, but for undergoing the biological process of pregnancy and the risk of pregnancy. These children, after all, will be supporting society when as they grow older and the older generation ages”That is freaking crackpot. Your talking about paying women to produce children who will be future workers that is sick. Your talking about paying women to make people to serve some higher purpose. Stop just stop. That’s wack

    “I don’t care about biology, but about intent/ human right to form families.” Oh really and you can just intend yourself right into the position as someone’s parent just run ram-shot over reality – I paid to have you created I intend for you to be my son so sayeth the contract no child reject and forsake all your relatives for you have no other relatives than mine and those I raise you with I commissioned you to act as my child and to serve my family in the capacity of grandchild nephew etc and you must do as I say. You have no other family they sold you they don’t want you don’t try to run to them you don’t matter to them there are no records that prove your even a member of that family your my child I intended it to be that way. Your talking about slavery. Where people buy and control other people’s bodies (that is what people do when they buy and control the living reproductive cells of human beings) and then they breed them and their little slaves are born in captivity and bear the names of their masters. Jackson, and Jefferson and Washington all the people born in captivity that get to bear the names of the people who bought their parents bodies and had them breed for them so they could keep and raise their children as their own. The only sadistic intent is the person who feels entitled to buy another person’s reproductive rights and have that person produce offspring and take that offspring and isolate them sequester them from their family and break them Stockholm syndrome style teach them their conception story early so they get so use to it they don’t notice how wrong it is the way cattle farmers can’t smell the manure they’re standing knee deep in because if they let themselves smell it they’d be too sick to keep standing in it.

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