Someone (ki sarita, in fact) raised an excellent question in an early comment on the last post: Why would you call Monica Schissel a surrogate when she is a pregnant woman and she is genetically related to the fetus she carries? There is some discussion of this in the last post, but I’ve been thinking about it more generally. This leads me to some observations that might be useful or, failing that, at least interesting.
It seems to me you can think about pregnant women as falling into one of four categories. Here they are:
A: Intending to be parent and genetically related to embryo
B Intending to be parent and NOT genetically related to embryo
C NOT intending to parent and genetically related to embryo
D. NOT intending to parent and NOT genetically related to embryo.
I think all pregnant women must fit into one of these categories. (There is a complicated factor with the intention point–one that bothers me a good deal. As we all know, intention can and sometimes does change over time. So in order to make intention a fixed factor, you have to pick intention at some particular moment and then stick with it. You can see all the questions this raises, I imagine. But I set them aside here for the moment.)
To make this a little more concrete, I should note that B describes a woman using IVF with a donor egg. D is the person we most commonly call a surrogate or a gestational surrogate, whether we like surrogacy or not. And C is like Monica Schissel, who some call a traditional surrogate.)
I believe we all agree that upon the birth of the child, A will be a legal mother. And I think every legal system I am familiar with reaches that result, too. So I take the position of A to be uncontroversial. But how do we think about B, C and D?
You can go at these questions from either of two directions. First, it seems to me that if you want to argue that B, C or D should be a legal mother you have to argue that she is essentially like A. With that in mind, you can reason back from the results you want to achieve.
Here’s how that would work: Suppose you want B (the woman using a donor egg) to be considered a mother. Then you need to say she is like A. If you look at the list up there what you can see is that you must therefore argue that the difference (genetically related vs. genetically related) is unimportant, while the similarity (intention) is what matters. Thus, you attach yourself to the idea of intentional parenthood. And that actually resolves the other two cases, two. Neither C nor D intends to be a parent and therefore they are not like A and are not parents.
(The result you reason from might also be that you want someone not to be seen as a legal parent. So for instance, if you want to promote the broadest use of surrogacy then you don’t want C or D to be considered a legal parent, and it’s fairly clear that this, too, leads you to intention as the defining feature of legal parenthood and means that B should be seen as a legal parent, because she intends to be one.)
The other way you can go at this is to decide what principle you want to adhere to first. So you might decide that the genetic connection is definitive. This then tells you that C is like A and so C should be considered a legal mother, while B and D would not be.
Is it worth thinking about things from this angle? I’m not sure. It certainly makes it clear that for the ART industry to work they need to go with intention–for that both allows the B to be a parent and C and D not to be parents. It also demonstrates that the genetic point of view will allow surrogacy–but only gestational surrogacy. And when someone says “why would you call C a surrogate?” it is probably because they are looking at the genetics as important (rather than intention) and from that perspective, C cannot be distinguished from A (while B can be). (For someone who puts intention first, it’s obvious why you call C a surrogate.)
I’ll close with one more observation: You could reject my analysis here in at least two ways. One is you could say what makes A a legal mother is the combination of genetics and intention, so that only she is a legal mother. None of the other women are like her.
Or you could say that they are all alike–A, B, C and D–because they are all pregnant women who will carry the child to birth. From this view (one I often advocate) B, C and D are essentially like A and thus, all should be seen as legal mothers.