This is spurred by a substantial article in this morning’s NYT. I haven’t talked/written about surrogacy for quite a while and so perhaps it is time to circle back to the topic. I’m well aware that there is some extensive discussion under the last post (the one about birth certificates), but I lost track of that while I was travelling and this seems timely. I can only hope I’ll get back to the birth certificates shortly.
So surrogacy. There are so many things to say about it, so much to discuss. I’m going to pick a few points that leapt out at me reading the article. There are many others.
1. Surrogates prefer working with gay men than with straight couples (or I assume with single women.) I’ve read this before and I’ve even written about it, but it remains a fascinating topic. I think this can be tied back to something important about our ideas of what makes a person a parent–or perhaps more specifically what makes a woman a parent (or a mother if you prefer.) It reflects, I think, some deep cultural assumptions about motherhood and pregnancy.
Now I don’t want to overstate things here. Many women are mothers who did not give birth to their children. (I’m using an unmodified mother here deliberately. I mean mother in many of its forms.) I’m in that category myself and I am clearly a legal, a social and a psychological mother to my children. Generally adoptive mothers are in the same position.
But still and all, for some–perhaps many–women the idea that some other woman will give/gave birth to the child undermines their claim to be the child’s mother–at least to an extent that creates a certain amount of tension and unease between the intended mother and the surrogate. A woman who is using a surrogate is a woman who, in the eyes of some and perhaps in her own eyes, has failed at one of those essential tasks of women–being pregnant. That can be a lot of baggage. I don’t want to overstate this. Maybe all I need to say is that it is complicated. (As an aside, it seems to me that the position of a lesbian whose partner is pregnant is rather different from the position of a woman who is using a surrogate and so perhaps the comparison doesn’t hold.)
And that complication doesn’t exist for the surrogate working with two men. Neither of the men had any expectation of being pregnant/giving birth. It isn’t (and never was) a part of their vision of being a parent. And so all that complication is just gone.
2. It seems to me that any child growing up in gay dads/surrogacy situation will know, from the earliest days, that there is a woman out there somewhere who gave birth to her. (In the same way, children of lesbian couples and single mothers generally know there is man out there somewhere.) While I’m sure there’s plenty of discussion of what to say and how to say it and when to say it, there is no possibility of not saying it. And there’s really no possibility that the child will be mislead because of the parents’ reluctance to discuss the matter.
This isn’t the case for a straight couple. It’s quite possible that the child will assume that she/he came from mommy’s tummy, as it were. (And of course, the mommy’s tummy assumption probably comes long before any assumption about sperm/eggs.) So the straight couple has to affirmatively take action to dispel this belief if they are planning to be honest. Again–here lies complication. When do you need to tell? When will the child make the assumption? How do you avoid misleading? (And I assume misleading is tempting, just as it is tempting not to tell a child that she/he was conceived using third-party gametes.)
3. NY’s policy of prohibiting compensated surrogacy has the effect of making surrogacy more expensive–because you have to go out of state to get it. And this means that there is less use of surrogacy, I’m sure, but that the use of it is distributed according to income. For pe0ple who have the money, there are other places to go. The only people who are really barred are those who are less well-off.
Now I understand the idea of law as a statement about right/wrong. You can read NY law as saying that compensated surrogacy is morally or practically undesirable and so we won’t allow it here. That’s a statement the legislature is probably entitled to make.
But the practical effect of it is to skew things by income and that, it seems to me, is also wrong. If the law directly aimed at this purpose–saying surrogacy is only legal for those who can pay 100K in advance–surely we’d object. How is what NY is doing different from that?
I don’t have an easy answer here. Maybe this is just how the law will always work when those with assets can travel to other more favorable places. And I don’t for a minute think that NY can forbid people from travelling. Still it does bother me. But maybe it’s just wealth inequality that bothers me–and that’s a topic rather beyond my scope here.
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The old “people are just going to do it anyway and don’t we want it to be safe/cheap/legal/local” line of logic. We have a few things going on here – while it may be alright to carry a baby for another woman when that woman is a known quantity and will take responsibility for her child when born, doing it for a woman who is unknown and does not take responsibility for her child when born is aiding a parent in abandoning her child. That should be a crime in its own right if, at birth the bio mother does not show up and identify herself as her kid’s mom ready to take on the daily grind. At that point the woman who carried the kid for that absent woman is now not only being paid for her gestational services but to give the baby she delivered to the people who paid for her gestational services. She’s got to give the child up for adoption presumably in some sort of step parent adoption because she can’t just step down they still have the law that forces her to be listed as mother of a child that is not her own. She’s now fully participating in a child trafficking scheme. It is a huge violation of the child’s rights and good for New York for not allowing it. Wouldn’t it be nice if more states followed and it became more difficult for people to abuse a minor’s human rights? Why on earth should we care how much it costs someone to put a minor in a compromised position? We should make it affordable and easy? No they don’t need to be doing what they are doing so frankly we should not care if they get price gouged in doing it.
When we are talking about medical procedures that people want done to their own bodies certainly we want people to have access to safe local and reasonably priced medical services. Abortion springs to mind. But abortion does not compromise the rights of born individuals. Allowing people to transfer other people’s embryos to their bodies ultimately compromises the rights of the born individual because of the way the law is currently written automatically naming the birth giver as mother. The born person will be misidentified as the child of the woman who gave birth to them and that is the thing that is wrong. If the law was changed so that the person had to be positively identified as the offspring of the woman giving birth before the State would certify the birth record then there would be no rights compromised for her carrying the other woman’s pregnancy. Now if she did it knowing that the child’s mother was going into hiding knowing she’d abandon at birth – I think that ought to be against the law placing the child in danger and participating in trafficking and adoption fraud.
I understand the point you are trying to make here, I think. Many people will distinguish abortion and surrogacy and that’s not really the point right here. It’s more about what happens when state’s outlaw particular things–those with money will evade the restrictions, whatever they are.
I also think we’re dealing in areas that shaped by widely varying and deeply held assumptions–which means we’re not likely to be able to reach agreement easily. For instance, you distinguish between the embryo in utero and the child. Other people–those opposed to abortion, say–would contest the distinction you draw. And they reach different conclusions. That’s way beyond the scope of this post.
I’m not saying that there aren’t things worth talking about. These are all important issues worthy of discussion. But it doesn’t seem to me that they really will advance the conversation on this particular post. Though I can certainly be missing something.
Indeed, one of the points I wanted to make is that there is a tension between resisting the “people will do it anyway” answer and some kind of commitment to equality. This isn’t a particularly original observation nor is it unique to this circumstance, but I still think it is worth keeping in mind. Money often allows people to avoid legal restrictions and so anytime you make something illegal (I’m thinking here of abortion, which was once commonly illegal) what you are really doing is impairing the access of those who don’t have the money to work around the restrictions. You can see exactly this, I think, in states that have very restrictive abortion laws now. People who have the money to travel to a different state don’t face the same dilemma as those who don’t have the money.
I don’t mean to suggest that the necessary conclusion is that the state legislature shouldn’t do what it thinks is right. Perhaps it should (though of course we’ll have big fights over what “right” is in any situation.). But I think we need to face up to what the actual effect of these choices (in whatever context) are.
Two other points that pull in opposite directions (and perhaps between them undermine the whole point of this comment?). One the one hand, surrogacy is already expensive and so you see the same effect with/without the legality problem. Second, the variation in state legal treatment of surrogacy isn’t really geographically consistent (as restrictive abortion laws sort of are). This last means people from NY don’t have to go that far. I think CT would do.
I’m not exactly sure what you mean by the bio mom in your comment, by the way. This is a place where I’d appreciate more careful language. Do you meant the genetic mom? I think that is usually how you use the term “bio mom”, as I recall. So I think you’re just circling around to your general point–that the genetic mom has to be the legal mom and therefore be responsible? We already know we disagree on that……
I don’t believe it is the responsibility of a legislature as to what goes on in other jurisdictions. So if people will go out of new york to do something that is illegal in new york its not a contradiction to the law as it stands in new york. of course some legislatures also criminalize the act of crossing state lines in order to engage in whatever illegal activity it is, but i actually find that disrespectful to the other state, since we are to assume all states are abiding by the basic minimum established by the constitution.
Didn’t mean to suggest that it was the responsibility of the legislature. I just think it is something we might think about. As I at least meant to suggest, perhaps this is just a general point about income inequality. People with money will be able to avoid a lot of restrictive laws generally. Doesn’t mean that there shouldn’t be restrictive laws, but I still think it is worth thinking about.
On another note, there’s something about the tone of the article that disturbs me. the author writes that the new york surrogacy laws came about due to the legislature’s view of surrogacy as baby selling. and that this is obsolete in the post gay marriage age.
It’s as if having same sex marriage means that any an all other concerns must be thrown under the bus in order to equalize homosexual relationships with heterosexual relationships, to bypass the one way by which they can never be equal as declared by mother nature. Even child trafficking.
Even as a supporter of equal marriage rights I must say that I agree with you here. The right to join assets and liabilities should not infer a right to co-opt your spouse’s bio kid. We have to get rid of marital presumption because its not accurate. We have to move towards declarations of bio parenthood and it is not the invasion of privacy you seem to want to think it is.
I think it is useful to separate two discussions that overlap here. One is about surrogacy–is it good/bad? Should we pay women to be surrogates? The other is about the marital presumption–is it good/bad.
You can answer these completely independently. So you can be in favor of surrogacy but not the marital presumption for vice versa or you can like them/dislike them both. They are different issues with different concerns and I think it will be tidier to keep them separate.
That said, I’m not sure I’ll engage with the marital presumption issue right here as it will take us off topic from surrogacy. You don’t like the marital presumption because it denies the primacy of genetic parenthood, I think. I get that (though I don’t agree, of course) and I’ve got a couple of recent cases that raise just this issue. I’ll get to them soon.
I’m not sure how same sex marriage and surrogacy, 3PR and adoption are related. Not every same sex couple desires children. But even if they do I don’t think they should be treated any differently than heterosexual couples are who pursue these routes to become parents. Thus none of them are strictly same sex couple issues.
Here I agree with you Greg. The problem in my eyes is letting any spouse of any gender just automatically get written down as a parent.
Because of your obvious objection to non biological parents.
There are really many overlapping issues here, as I think you suggest. Should we have a marital presumption? If yes, should it extend to same-sex married couples? Who should be allowed to adopt? Should we prefer married couples for adoption. And so on. The overlappingness of them–that the article is about same-sex couples who are married and are using surrogates–does make it confusing.
But I think it is critical to note (as you do) that not every same sex couple wants children, just as not every married couple wants children, just as not everyone who wants a child is married or even in a couple. Some would say that one of the major (and to some unfortunate or even disastrous) shifts in our culture has been to de-link marriage and the raising of children, or marriage and procreation.
Same-sex couples shouldn’t be married, and the marital presumption will have to stand just as it does now, unless we are ready to do mandatory DNA tests. I think people will come to expect DNA tests in a few years, but even then, there should be a right to refuse one, if a couple is married, even if someone else is claiming to be the father. Perhaps if a DNA test shows someone else is the father, it should be corrected on the birth certificate, but as long as the wife wants her husband to be the father of her children, and unless the husband refuses because he believes he is not the genetic father, then the husband should be the legal father and the actual father should be secondary, if known at all.
wtf?
why? what secondary? why should this person’s father take a back seat to their step father?
ki pulls this every now and then. i dont know if u really care about people not being raised by bio parents at all. Souns like your just fine breaking up bio families when rhe people are straight and married. total duble standard
“why should this person’s father take a back seat to their step father?”
Why does biology trump all in your mind?
If your mom’s husband is willing to stay with her and raise you and love you as if you were his offspring even though your the offspring of another man,whether your bio father is doing his share to support you, that makes the mom’s husband a pretty cool and awesome guy. If the husband is only willing to stay with her and help raise you if your bio dad itotally abandons you so so he can be recorded as your father and pretend you are not another man’s offspring and you are denied support from your bio dad and legal kinship to your paternal relatives in order to hold your mom’s marriage together, it makes the husband a fool and and rude and an accessory in helping your father abandon you
You mean if the man is not recognized and respected as a parent, you would think that would be awesome? Yeah I would think you would think that would be awesome that the non biological parent would be not be seen as a real parent.
Gawd Greg its wonderful if he’s open to helping his wife raise his wife’s children by another man but not if in order to do it the kid has to loose contact and support by his bio parent and kinship in his paternal family. Why is it so tough for you to understand that the mother’s husband might be a wonderful presence in the life of her child without the kid having to loose half his family! Can’t he raise her kid withi his wife as the legal step father which won’t destroy the child’s right to support and contact with his own family.
All I am suggesting is the very same senario as everone currently has only it gets written down correctly and the kid looses no rights. They all live just as their living in the same living arrangements but the title goes away yes because the husband has not gone through the adoptive process and was attempting to conceal the identity of the kids bio parent the other way and the bio parent had no responsibility for the kid the other way see how it sucked and tanked for the kid before? Non bio dad does not need to go anywhere or change any of his behaviors it would all be just as it is now only the bio dad would not ever have gone away. Not like he’d live in the same house but the kid would spend time with him and he’d receive financial support fro him he’d have his name for pete sake. If someone wants full legal parenthood over another person’s kid they should go find one that is available for adoption and do it in court the long hand way that is fully ethical. Find a kid whose parent was not paid not to take care of them
Why is it so tough for you to recognize that being a parent has more to do with a bond someone has with a child and less to do with biology? Can you clarify why you have so much hate and lack of respect for non biological parents?
For every person that counts themselves as a non-bio parent, there is a bio parent who failed to take care of his or her child and there is a child whose lost half their family. You realize that don’t you? Non-biological parenthood is ALWAYS predicated on the failure of another family to function as it should; non-biological parenthood exists to take up the slack and make the best of a dark and untenable situation where a minor is not going to get what they deserve from both biological parents. Parents are the cause of their offspring and Parents are the cause of non-biological parenthood. If you want to be a non-bio parent you need to find a bio parent who has failed or find one whol’ll be willing to fail so you can succeed.
I don’t think bio parents are better I know they have a responsibiity to their offspring FIRST and if there is anyway to prevent them from failing their children we need to look to that as being the first order of business. In fact, sad as it may be for all the people who want to be non-biological parents, the very best thing that could happen is that there would never be a minor who suffers the loss of their biological parents and there would never be a need to call in the cavelry – in an ideal world no minor would ever have a need for a non biological parent. That would be the perfect goal for no minor to ever suffer the loss of the absense of one of their bio parents, why would anyone want the minor to suffer that loss just to get themselves a non bio parent when it would be better just to have parents that made you provide for you as they are supposed to.
It’s not an ideal world though and sadly there will always be parents who die, parents who get sick, parents who struggle with demons and parents who are too young or ill equip to handle the responsibilities of raising their children to adulthood. So there will always be non-biological parents and I don’t hate them at all. You need to get realistic as you contemplate the ideas of adoption or even acting as a big brother to a child through that very fine charitable organization – if the minor was getting what they are owed from their parents they would not need you or anyone like you to step in and help fill the gap, take up the slack. I just want the minor never to have suffered the loss in the first place. You perceive the desire to prevent the loss of their family in the first place as being hate towards would-be biological parents and its not. I’d rather people never even need to become non-bio parents because it would be a sign that more people were making good reproductive choices and having kids only when they were up to the job of raising them themselves. Wouldn’t that be ideal? A world where minors don’t have to suffer any loss of their bio parents and their bio parents always were there and happy and ready to do a good job? That’s a pipe dream so there will always be a need for people to step in and become non-bio parents. Just remember that non-bio parenthood cannot exist unless the minor suffers the destruction and legal separation from his or her family so its best to have nothing to do with that destruction or separation because that is objectification and they’ll resent that non-bio parent for having a hand in orchestrating their loss and then nothing the non bio parent does will ever be loving enough to make up for wanting their family to be destroyed.
There’s so much I disagree with here I’m not sure I can actually take it all on. Mostly it comes down to the same basic disagreement, I suppose, but a lot is also about all the assumptions you have constructed on that disagreement.
I will offer but one point: I never wanted to be a biological parent. I was and am delighted to be a non-biological parent. Since it only takes one to disprove a statement that begins with “No one wants….” I would like to consider it disproved.
“In fact, sad as it may be for all the people who want to be non-biological parents,”
Nobody wants to be a non biological parent even though they may end up being one.
You didn’t answer my questions, “Why is it so tough for you to recognize that being a parent has more to do with a bond someone has with a child and less to do with biology? Can you clarify why you have so much hate and lack of respect for non biological parents?”
can you stop asking that question “why do you have so much hate”? it isn’t a question its an accusation.
but while we’re at it, why do you think no one wants to be a non biological parent??? you’re the one who said that, no one else.
“why do you think no one wants to be a non biological parent??? ”
Let me rephrase that, I don’t think anyone who wants to become a parent immediately sets out to become a non biological parent. I believe the first attempt is to become a biological parent then if that doesn’t happen and they have a strong desire to parent they pursue becoming a non biological parent.
Julie,
My apologies if I offended you. It was not my intention.
I think plenty of people want to be non biological parents and it really makes no difference in the long run what it took to get them there. There are people who always all their lives never wanted to add kids to the world when there were already kids needing people to love them and take care of them. That is not at all an uncommon theme in the crunchy granola green thinking global community set of people who are interested in their earth and community and stuff. And they go out and become non-bio parents I was just saying temper that entheusiasm with a healthy dose of respect for what the kid had to loose to get to that point where they were in the market for a non-bio parent. Even if their absent bio parent was not even on the radar and was gone before their birth that bio parent probably understood he/she might be making offspring and had to choose not to be there when their offspring were born and of course then this is the loss of half the kids bio family and that loss is not without loss, it’s loss. It’s not the same as being a parent where the kid did not first have to loose half their family it’s just different. You have to be dialed into that loss until we find a way to legally bring the non-bio parent into the picture while minimizing the legal losses the kid experiences. You can’t miinimize the emotional loss of having the bio parent be absent but the legal losses we can eliminate and should.
No I’m not fine with breaking up bio families, I think adultery is a crime and people don’t have a right to intentionally conceive with someone they are not married to. You are the one that is fine with intentionally creating broken homes where a child lives their life between two worlds. I think that situation should never happen, adultery should never happen. But sometimes it does, and pregnancy results, and I think as long as it is really rare and considered wrong, it ought to be possible if the mother thinks it’s better for them, and it would be better for society, for the husband to be the legal father and the interloping bio father to be forced out of the child’s life. A man should not feel that he can have children with another man’s wife and be allowed to see them half the time, and a woman shouldn’t say it is OK for another man to impregnate her and see his children half the time, while she stays married to her husband. You want to say they have that right, but they really don’t. The husband might now have a right to test his wife’s child to verify paternity, but most would prefer to trust their wife and not test their child. Someday soon that may not be possible, it may be too easy to test and will come to be seen as expected.
oh as long as its really rare? So you think its OK for those kids to have their father and paternal relatives treated like interlopers? Oh your making me just so sick and the wretched shallow way you just throw their rights and family away if that’s what their mother wants. Fk minority rights with you huh? If it screws A handful of people royally so we keep up heteronormative appearances fine by u. Such a hypocrite. All of you against gay marriage gave such lip service to the plight of donor offspring and their loss of bio family when single women or homosexuals are going to raise the donors offspring but you wont get behind legal changes that fix the problem across the board its OK if straight people destroy bio families so long as it looks square and hetero from the outside that’s what matters. Oh Im fuming mad John. I’m mad at anyone that made it sound like they were really on the side of people loosing their rights and their families. You don’t ive a fk about them loosing their families cause that would require people to start living authentically recording all the bio parents as parents and making them cooperate in custody agreements so the donors offspring would not loose rights or family. It would be just the same as now people making offspring with someone not their spouse with the consent of the spouse and their assistance raising the outsiders kid only they could not pretend that it was not going on. No you want heteros to pretend so everything looks Norman Rockwell on the outside when its a chaotic hell hole mess of loss and grief and extramarital offspring and abandonment reckless irresponsible parental behavior. Well as long as it looks normal that’s what counts huh? It does not look normal when gay people do it so that’s bad. You and kIi both reject any attempt to stop straight married people from being presumed parents like its their purview to hijack a persons family and identity to conceal the unpleasant fact that their kid is a bastard and the couple is so kinky they all did it on purpose
Shallow statements about child welfare all meaningless. Real help real respect for people and their bio families means recording the truth letting them live authentic existences identified as offspring of bio parents who follow the same rules everyone else has to they make a kid. Maybe if people had to admit what they were really doing see it written down and had to be accountable for what happens to their offspring fewer would do it. Those that still chose to would at least have to do it at no cost to the minors rights. You are doing far more to normalize the destruction of your Norman Rockwell norm by letting straight people do it and conceal it than I suggest by making it harder to hide it. I’m so crushed that a large portion of people sympathetic to donor offspring and adopted people’s rights don’t really care about them or their families they are just tools to you too. Collateral damage in a play for God country and traditional morality. Whats really immoral is the way their freedom rights identities is just a loss leader to you or anyone else. This makes me sick even if we were not talking about my friends.
See I think John’s positions are extreme but I do believe he is honest and straight forward with how he feels. He doesn’t say he’s one thing and then his actions say he’s another.
Wait, you make it seem like I think it’s fine for people to lie and keep bio-parents out, but I don’t, I think it should be illegal! I am just still on the fence about calling for mandatory DNA tests at birth to record the mother and father. Sometimes it seems inevitable and ought to be done so why not just make it mandatory right now, other times I think it would be a really big step that would hurt relationships by removing the implicit trust that comes from not knowing for sure and being faithful nevertheless. I am certainly not saying that people should feel free to take advantage of that opportunity for deceit at the expense of children and their family and genetic parents. But I also don’t think that genetic parents are automatically entitled to visitation or custody or legal parenthood status. There are lots of circumstances where I think non-bio parents are appropriate legal parents, and a lot of it is up to the mother who the other legal parent is. But I agree that genetic parents should be who is listed on the BC (or at least on the original BC as long as we continue to use BC’s as legal parent documents) and bio-fathers should have some amount of right to be legal parents. But really if they want to be legal parents they should marry the mother of their children, preferably before conceiving any offspring. If they aren’t married to the mother, the child will suffer, even if they are some kind of legal parent, and they lose some of their right to be a part of their child’s life by not marrying the mother. That is just logistics, they will be a negative influence on the child by being divorced and in a different world, with their own girlfriends or lovers and family. It’s in many ways better to shut that world out and favor the mother’s world over the father’s, it’s paternalistic in a way that strengthens marriage and society.
Well John I like the tone of your response I was and am really shaken by statements that favor breaking a person off from his or her bio mother in order to present the appearance that a child is “of ” their mother’s marriage. It’s profoundly disrespectful to the person who is forced to live out their life under an assumed identity because their real identity, who they really are, is deemed unworthy of love, unworthy of care unless who they are is covered up concealed with a family history that the mother likes better. Her marriage is her problem and her child should not have to pretend to be the child of her husband in order to keep her husband from leaving her. Their relationship with their father and their paternal relatives is relevant to them and to their paternal relatives and her desire to pretend the reality of her own actions away is so arrogant and self serving it burns me to the core. She made the situation she’s in by having a child by another man be he a donor or a boyfriend. She has offspring with someone who is not the man she loves and is married to. She did that. She chose to bring a person into the world who is not the child of her spouse. How dare she agree to raise her child by that man only if that man agrees never to identify himself and never to fulfill his parental obligations to their child. How dare she only agree to raise her child if she can pretend that her child is someone he’s not? I rarely talk about emotion because Julie has shown me that its the fastest way to loose the debate but just think about the message it sends a person when their own mother would rather give them up than admit on paper her husband is not their biological father. You have a bio parent that says they wanted you so much and tried so hard to have you but they only want the half of you that’s related to them, and only if you’ll pretend the other half of you is different, because who you really are is unworthy. Your not the child she wanted. She wanted a different child her husband’s child but she could not have the child she wanted so she’s settling for you but she’ll only settle for you if she can erase everything about you that that makes you another man’s child. It’s a vile horrendous attack on the human spirit and it is an attack on freedom of the person whose identity is stolen. The least she could do is have the decency to write the truth down and let the kid live life as who he really is even if his father is not going to be around. Imagine if who you actually were was not only second choice but so bad it could not even be written down. So messed up.
I really like you and most of the things you have to say please strive to be ethical and apply your principals all the way forward. If you are for the interests of a child not to be separated from his or her bio parents then make no exceptions to that except for when the bio parent is unfit and incapable. Not just at the mother’s whim. How fair is that? Lot’s of people’s mom’s are batsht crazy.
John parental abandonment breaks up biio families. ADULTERY DOES NOT BREAK UP A BIO FAMILY. NOT NAMING BIO PARENTS AS PARENTS TO CONCEAL THE ADULTERY IS WHAT BREAKS UP BIO FAMILIES.
“I’m not sure how same sex marriage and surrogacy, 3PR and adoption are related.”
Interestingly, surrogacy, 3PR and adoption are not rights of marriage and have nothing to do with marriage, but becoming biological parents of offspring together is a right of marriage and is 100% congruent, identical.
Then what does it say for people like my wife and myself who are being denied that right?
from what you’ve written about your situation it seems that it’s mother nature denying you, not any law.
Ki,
I’m responding to John because I think the idea that it’s a “right” of married couples to have biological children is flawed. I don’t believe it’s a right which is why I used myself as an example.
rights are individual in nature
Yes, but individual rights are not always what you think they are.
Not the right to procreate, because procreation is not individual in nature.
but it is not a joint right because the rights of the individual to reproduce or not reproduce don’t have to agree with their partner and will always trump the desire of their partner if it would require force or control over their partner’s body against their partner’s wishes. They have the right to reproduce with their spouse if their spouse feels like it which the same can be said of anyone married or not. Let’s separate the right to reproduce from the right of a child to be supported by both bio parents.
John do you believe that every child born deserves the care and support of both bio parents? Only if they are not married to other people? Or all children deserve their bio parents support? That seems fairer right? I mean the kid has no control over their parent’s marital situation. So you can say that people don’t have the right to reproduce with anyone but their spouse – all day long. Fine but the end game here as the right of support is legally not altered by who their parents are married to or if they are single, the kid simply has a right to his or her bio parent’s support.
It’s not flawed it’s always been a right of married couples to have sex and produce genetic offspring together. You and your wife aren’t prohibited from doing that, you just haven’t done it, which is fine, it’s not a requirement or guarantee, infertility never has been a grounds for divorce, nor has marriage ever been a license to raise other people’s children. There are Billions of couples that are prohibited from procreating offspring together and do not have a right to procreate offspring together, but none of them are married because those couples are also not allowed to marry.
And you have already said that you believe married couples should be subjected to the same fitness tests that adoptive couples are in order to be allowed to have sex and make offspring together, which is what Margaret Sanger proposed in her eugenic Baby Code. That disrespect of marriage rights is why it is important to affirm in law that marriage approves and allows the couple to reproduce offspring together with their own genes, with no prohibitions or screening tests. Marriage rights aren’t flawed, they just aren’t eugenic enough for some people. They protect people with flaws to be allowed to be fully equal human beings like everyone else. But that only gives a right to marry and have sex (with someome conseting and eligible), not a right to a baby or to use other people’s bodies or gametes.
John,
It’s not a right for married couples to have children because there are things like their bodies that prevent it. It’s a flawed argument to say it’s a right. It’s not flawed for you to believe children should be only conceived in marriage. Even though I disagree, I think it’s a valid belief.
“And you have already said that you believe married couples should be subjected to the same fitness tests that adoptive couples are in order to be allowed to have sex and make offspring together, which is what Margaret Sanger proposed in her eugenic Baby Code. ”
No, I was just proving that Marilynn’s argument of people not being treated equally was flawed. My belief is their situations are different not that they are treated differently.
People have a right to be fertile (Skinner v Oklahoma), and a claim to some standard of health care and public health, so that they can have offspring with the person of their choice (Loving). I am not saying that being married gives a couple a right to force society or doctors to go to extraordinary efforts or allow unethical measures to achieve pregnancy and birth of offspring (that was how the doctors introduced IVF, as something a married couple had a right to because they were married, and maybe it is a right, just another sex position).
A right to do something is not a guarantee of success. It is saying they can’t be prohibited from trying, to have a right means to feel society’s full blessing of the concept of offspring together and know they have every right to children together that every other marriage does. You and your wife should enjoy that blessing and approval and support, you aren’t being treated like siblings who’d go to jail or unmarried couples who do not have that blessing and support. It’s worth something even if you never have kids, you get the full bundle of rights and benefits and social approval. Single people don’t get that. Same-sex couples want that, but shouldn’t get it since they should be prohibited like siblings are.
So take back what you said about married couples having to go through fitness tests like adopting parents do, then. Admit they have a right to have children together.
“It’s worth something even if you never have kids, you get the full bundle of rights and benefits and social approval. ”
For me and other couples unable to have children it means nothing to us. I disagree that it’s a right.
That’s super offensive to say married couples don’t have a right to conceive offspring together, and it’s why I am trying to get Congress to prescribe the effect of marriage in every state as approving and allowing the couple to conceive offspring with their own genes.
Greg, you have a right to conceive offspring with your wife. You have society’s approval and support and receive benefits and protections because of that. That’s worth something. Don’t you feel it would be offensive to be told you and your wife have the same right to have kids together that siblings do or that same sex couples do or that a married professor and his 18 year old student do? None of them have a right to conceive offspring together, but you and your wife do.
John,
I don’t believe it’s a right because not every couple is able to. I just don’t agree with you. And I have no issue with same sex couples raising children together. I don’t believe they should be denied the ability to parent a child together.
The “right” to have a child together only means something if a couple is able to. Otherwise it means NOTHING to that couple.
Greg, imagine your doctor tells you there is a pill or surgery or something that would restore your health and allow you to procreate with your wife, don’t you think you should be allowed to try that pill? I think it should go through normal FDA approval process like all medicine, and one of the considerations should be the health of the offspring, but that you should have a right in principle to try to medicine to restore your fertility and procreate offspring with your own genes, with your spouse. I bet you would be mighty upset if, even after the FDA approval of the procedure, the government said that you didn’t have a right to do it because you were unfit for some reason, like your income wasn’t high enough, or your genes weren’t good enough to use. Wouldn’t that bother you? That is the sense that I am saying you have a right to offspring with your spouse. They can’t stop you and your wife, if you can, we approve and allow you to conceive offspring together.
John,
The premise doesn’t make sense because essentially the FDA is the government approving it. And for me any treatment goes beyond just conception and whether any potential child would be born healthy and wouldn’t deal with the fertility issues we have.
Greg, the hypothetical is pretty straightforward: a magic pill is invented that restores your fertility so that you and your wife could probably have genetic offspring together. It’s safe, thousands of people have used it with exactly your condition and it worked for them. Wouldn’t you object if the state said you were unfit or not wealthy enough or carried a bad gene, so you were not allowed to take that pill? Worse, you were not allowed to have children with your wife by any method, because your combination of genes would have a high probability of defects or non-optimal traits. I would be upset, wouldn’t you be upset? That would violate marriage rights.
John,
If the pill had the high risk of birth defects or passing along my infertility then I would decline taking it. Others may choose otherwise but it’s not something we’d be comfortable with. I couldn’t look that child in the face and tell them that they are infertile because of my desire to have a child. But that’s me.
I see the point you’re trying to get at but disagree with it. I don’t believe that married couples should play by one set of repr
See what your position has driven you to? It’s a standard eugenic/transhumanist position, that people have a moral obligation not to pass on their own bad genes if they can use better genes or fix their genes. It’s very depressing to feel you wouldn’t be able to look your child in the face because they have your genes, and denies fundamental rights and human equality and dignity. Children will be mad at their parents, as though they were owed Michael Jordan’s sperm and Beyonce’s egg. Maybe the Jones’s down the street paid more and went to a better clinic with better donors. See how it will lead to eugenics?
Unmarried people are like everyone, they have a right to be fertile and pass on their own genes too. But it’s important that married people have that right in combination with their spouse’s own genes too, and not with some better person, because once we allow that option to use better genes it creates very coercive pressure to, and spouses shouldn’t do that to each other, they have consented to have offspring with each other and have a right to have offspring with each other and not with anyone else.
John,
I never said people have a moral obligation to not pass bad genes onto the next generation. All I said was I am not comfortable passing on a life altering condition to the next generation in my family. To me there is a difference between passing along flawed genes like let’s say me being short. But when it comes to life altering conditions like infertility and other health related issues it’s just not something I’m comfortable with passing along because of the quality of life that person would have. It’s not about better genes it’s about the health of the person you’d be bringing into this world. Again that’s just my feeling for others they might feel different and I don’t judge them for that.
A right would be a reasonable expectation to rely upon someone else to do a particular thing. Obligations to do something give rise to rights of other people to expect it to be done. The obligation not to interfere with anyone else’s personal freedom and autonomy over their bodies, say for instance, would give rise to a reasonable expectation that people could rely up you and others with that obligation to leave them alone and to not restrain them or physically force them to do things they don’t want to do (except if the thing they don’t want to do is perform an obligation someone else is relying upon).
So Greg has the right to reproduce without undo restriction or interference from anyone. That is to say what he has the right to expect is that he not be interfered with in his decision making authority over what he does with his own body which might be reproduce if he feels like it and is capable of it. The rest of the world has no control over whether or not he is capable of having offspring they just need to not force him to reproduce if he does not want to or prevent him from it if he does. He has a right to be left alone I believe the saying is except to the extent that he must fulfill his obligation to leave others alone and not interfere with their free will and personal freedom.
It works great if everyone meets their obligation then everyone is enjoying their freedom and if someone interferes with it and violates their rights then they have a right to expect the law will do something about it.
So sure you have the right not to be interfered with in your pursuit of seeing or sneezing or reproducing or whatever but you don’t have the right to reproduce anyone other than yourself, not even if they say you can reproduce them they can still pull the plug you don’t own their body or their free will or bodily autonomy. There is a right related to reproduction it would be the right to expect nobody else to control your body and it comes with the obligation not to control anyone else’s body.
I think the law needs to eliminate the phrase parental rights and call it parental obligation – for it’s the child that has the right to rely on the parent to do something for him while they are a minor. The parent has no right to rely upon their minor offspring. Their offspring is a person obviously clearly not property and not a financial asset. On paper a child is an 18 year financial liability with no, I mean zero hope of ever recovering the money spent. The care of a child is a liability and an obligation that should clearly fall to the people that created the dependent person. Now I don’t personally feel children are a liability on an emotional level but law does not legislate feelings or love or pride or devotion. The law is there to establish what obligations we need to meet and what we have a right to rely upon others to do. As minors we have the reasonable expectation of care and support, from not just any old person but our biological parents and then if that fails we then have the legal right to receive support and care from the state and federal government while we are minors. What they do is offload their obligation to provide care at the expense of the taxpayer and they then look to place the child in a permanent home not funded by the state. The minor has a right to expect that the state will en-devour to protect them against unscrupulous abandonment by their parents or against placement with people who are unfit or where there was any sort of exchange that smacks of either charity or commerce.
People involved in the process would have the right to be treated fairly and not be discriminated against in any of the screening processes but they should not have the right to expect that they should be given a child to raise.
“People involved in the process would have the right to be treated fairly and not be discriminated against in any of the screening processes but they should not have the right to expect that they should be given a child to raise.”
That’s right they should have the expectation that their sole purpose in life is to serve the fertile community and be outcasted and live lonely lives.
“So Greg has the right to reproduce without undo restriction or interference from anyone.”
How come when I say that a married couple has a right to reproduce you assume that means a right to rape the spouse, but when you say an individual has a right to reproduce, you imply they can do it all by themselves with nothing required from anyone? It’s the other way around. Saying an individual has a right to reproduce is what implies a right to force someone to reproduce with him, and to force the state to supply a donor and a surrogate as part of their health insurance, calling it “fertility treatment.” On the other hand, saying a marriage has a right to reproduce makes sense because a marriage actually CAN reproduce without anyone else. And it is not either individual that reproduces, it is the marriage – those two individuals mixed together – that reproduces. “Reproduction” is really the wrong word when we consider the individuals rather than the species. The right word for what individuals do is “marriage.” Of course it has to be consensual all the time, but the individuals in a marriage give up lots of freedoms when they marry and are forced to be equal parts of a new joined entity called the marriage. The marriage is what has a right to reproduce, but it is only a marriage when the consent is maintained between the spouses. That is the purpose of the ceremony where consent to marry each other is officially established and recorded, and then the consent must be ongoing for the marriage to be ongoing. If one spouse wants out, then the other spouse cannot force them to do anything, even go to a movie or eat dinner. They have a right to go to a movie, but that doesn’t mean a right to force the other one to go, right?
I’m not sure what it means to say that “becoming biological parents of offspring together is a right of marriage.” Becoming biological parents together is more likely a right of any man/woman who are capable of doing so. What I mean is that the government has no right to restrict any man/woman from engaging in procreation via sex. It doesn’t have anything to do with marriage, either.
For better or worse, marriage is essentially disconnected from procreation these days. I suspect this is something that bothers you as it does many people. And I can understand that one can take the position that it shouldn’t be this way.
But as a descriptive matter marriage and procreation have been decoupled. People who are not married can and do procreate–and have the right to do so–and people who are married do not have to procreate. We have (as a legal matter) made a commitment to erase the distinction between marital and non-marital children–to treat all children the same regardless of the marital status of their parents (whether genetic parents or social parents.)
Actually, in this landscape, the continuance of the marital presumption is an oddity. And that’s an interesting thing worth thinking about.
Julie very clear very logical very accurate. Hey everyone I’m 100% on board with what Julie said.
You who thinks we should have mandatory DNA tests at birth and make the genetic progenitors always be the legal parents for inheritance and survivor benefits? And don’t you completely disagree with Julie about the marital presumption? The only thing you and she agree about is that people should be allowed to marry one person but intentionally have children with other people, which I think is a very bad policy.
Yeah I know I was surprised to agree with her as well.
“Becoming biological parents together is more likely a right of any man/woman who are capable of doing so.”
No, it’s not a right of siblings, obviously. Are you saying there is a right to incest now? No, people still go jail for that and have their children taken away. And it is not a right of a married man and some other woman. It is not even a right of two unmarried marriage-eligible adults, that’s fornication in my state. Are you saying there is a right to adultery and fornication now? No, those things still are not rights, even though we don’t punish them or police them now.
“What I mean is that the government has no right to restrict any man/woman from engaging in procreation via sex.”
False, government has no right to restrict married couples, but every right to restrict unmarried couples, as it does and has since the beginning of civilization. Marriage is and should remain the line between having a right to have offspring, and being subject to restrictions and prohibitions. Just because government has a right to restrict doesn’t mean it has to, it can allow unmarried couples to have sex and procreate without giving up the right to restrict it, and without saying unmarried couples have a right to.
“For better or worse, marriage is essentially disconnected from procreation these days.”
No it isn’t, it still gives the couple society’s approval and declares a legal and moral right to have sex and conceive offspring. It just isn’t needed today, people get away with sex and procreation without having the right. But there is no way you can say that marriage is disconnected, it still is 100% congruent in terms of rights. People still associate marriage with procreation and sex. Though I understand that eugenicists and anti-marriage feminists can take the position that it shouldn’t be this way.
“People who are not married can and do procreate–and have the right to do so–”
No they don’t, where are you getting that? Eisenstadt wasn’t reported as declaring a right to fornicate. The decision whether to beget a child is not the same as permission to have unmarried sex. Lawrence said homosexuals have a right to certain conduct in the privacy of home, but also said that marriage is about the right to sexual intercourse.
“and people who are married do not have to procreate.”
Of course not, however if a spouse refuses to have procreative sex, that has always been grounds for divorce.
“We have (as a legal matter) made a commitment to erase the distinction between marital and non-marital children–to treat all children the same regardless of the marital status of their parents (whether genetic parents or social parents.)”
What we do is, if a child is born to unmarried parents, we legally pretend the parents had been married when the child was conceived, and are now divorced. Instead of alimony, we call it child support. What changed was that men no longer could ignore their children and abandon women they got pregnant, just because they weren’t legally married. That was unfair to the child, it created an unequal class of people without equal protections.
Marriage is nothing more than a merger of assets an liabilities honored by the government for tax and benefit purposes.Partners in a corporation.Children are liabilities, not assets. They are not property owned by the partners. One does not have a claim or right to their spouse’s child. You are however liable for the financial support of your spouses child because the contract merged your liabilities. That’s where Step Parenthood iis a critical legal status. But there is no right to reproduce with a spouse that would override a souses right to say no. So ultimately the individuals bodily autonomy is respected.
Rape is not a right but a woman having authority over her own body would have the right to continue a pregnancy and give birth to the rapists kid if she wanted. Once their offspring was born their child would be entitled to his financial support and she could sue him for support. The mother would have the right to have and raise her offspring by a man not her spouse even if the act causing them to have offspring was forced illegal and not his right.
No they don’t pretend they were married then divorced. John you are making that up. The state does not edit their taxes for the year their kid was born so they file married filing separate. They don’t record a marriage certificate and divorce cert by force on the couple. They don’t force his employer to cover the cost of her pregnancy and delivery on his medical insurance nor would she qualify for death benefits if he died after their kid was born. The state does not pretend they were married and divorced anywhere but you mind. People are obligated to care for their offspring married to the other parent or not. I mean what if a guy is already married? Will they automatically force his existing marriage to divorce to force him to marry and divorce the mother of his kid? What would that do to his existing wife’s benefits?
Saying its illegal to marry a person already in your family has administrative logic as does only certifying one marriage at a time. Saying its illegal to have offspring even with a relative would mess up their kids right to support from their hillbilly dysfunctional parents slash siblings.
When I started reuniting families separated by gamete donation I Was thrust headlong into a dark secret of American Jewish culture in the 1800s and early 1900s…its horrifying but Uncles married nieces all the time on purpose and half siblings and first cousins. Parent child and grandparent grandchild is the only apparent no-no. This fact has been difficult for my friends to reconcile because its very unhealthy obviously. Its also a record keepers nightmare since you cant terminate the original relationship. There is no need to marry into a family your already part of. If two old siblings wanted the benefits afforded to spouses they’d just live together and one would claim the other as a relative dependent on their taxes entitling ss death benefits since one relies on the other for support.
OK, the state doesn’t literally say they were married and then divorced, there are differences for the child and the parents. If either parent were married to someone else, it would be adultery, but the kids would be treated as though it had been legal polygamy and divorce. But yes, it’s not literally legally what happens, because there was no marriage, so there can’t be a divorce. The idea is to make marriage and divorce as close to what happened as possible for the child’s sake, to avoid the equal protection problems that illegitimacy created. Illegitimate kids are to be treated the same as a married couple’s child in all ways, there should be no more different rights for offspring. That’s a good thing. As far as the child’s rights are concerned, their parents were married and divorced. The fact that their parents won’t get the same government benefits that formerly married couples would is an equal protection issue that should have to be fixed. It punishes the minor child by withholding benefits from their parents.
“You are however liable for the financial support of your spouses child because the contract merged your liabilities. ”
No, they aren’t. Only if they want to be and a lot of it depends upon the relationship the person has with that parent.
“But there is no right to reproduce with a spouse that would override a spouse’s right to say no.” True but this would constitute grounds for divorce or annulment if it continued for a long period. Marriage is an ongoing state of consent to have sex and reproduce with each other exclusively and no one else, and if that consent is ever withdrawn, the marriage is in a state of infidelity and divorce, though not Irreconcilable, and divorce is not required if the second party preferred to stay married and not have children. They certainly don’t have a right, however, to go and have children with someone else while still married to the refusing spouse.
I totally agree though that marriage should not be thought of as a right to force the spouse to do anything they don’t want, including sex and reproduction, and agree that forcing unwanted sex or procreation on a spouse is rape. Refusing sex is a declaration that the marriage is in suspension, not legally over yet, but in a state of suspension that may or may not become legal and permanent. So while in suspension, the consent is gone and the right to procreate is gone too.
Interestingly, when they made the change to laws and culture so that marital rape was understood as real rape punishable in jail time, they also made similar changes that I also approve of that gave women control of their own property in marriage (contradicting your opening paragraph). A husband cannot rape his wife anymore, and he cannot take her property and sell it and buy a bigger house anymore either. She has to consent to that, too. Property doesn’t really merge anymore like it used to.
Are there really any cases where a woman was raped, the man went to jail for it, and yet was responsible for the offspring and the child inherited from him? I suppose it could happen, but I would hope that some other man would take on the role of husband and father (OK, step father is OK but no one needs to know the child is not theirs and she had been raped).
I believe all women that are victims of rape or who raped a man should be given Plan B medicine to prevent the rape from resulting in pregnancy. It shouldn’t be an option to refuse it, anymore than victims of gunshot wounds should have an option to die. The crime is just as bad if the victim dies or pregnancy results, and the punishment should be the same, but the result is much better for society if the victim survives or there is no pregnancy. It shouldn’t be an option we force on women after rape, implying that they would be murdering a child if they choose to prevent pregnancy. That’s outrageous, but some people have been manipulated to feel that way, and making women choose is cruel.
I’ll concede it is not a right of siblings or others within the scope of incest statutes. But that’s a pretty small exception. I know some states retain fornication and adultery statutes but in general they are not enforced AND were they enforced I don’t think they are constitutionally defensible anymore. Which means I’ll stand by my (only slightly modified) assertion about who has the right to procreate. Certainly no state could lawfully prohibit procreation by an unmarried couple.
I think you are engaging in a degree of wishful thinking. Once it was clearly true that a state could prohibit non-marital sex and it could even prohibit non-procreative sex within marriage. But to suggest that this is still the state of the law is, I think, just wrong. No state is currently in the business of regulating the consensual sexual practices of its citizens in the ways you suggest. They may keep laws on the books, I know, but when was the last time a prosecution was upheld? The laws only survive because they aren’t used (and hence, it’s hard to challenge them.)
I also think you understate the change in law with regard to children born outside of marriage. Once the law formally stigmatized those children–in part to discourage non-marital sex. But we have come to see that the children are not responsible for the choices of their genetic parents. Whether they are children of married or unmarried parents is not up to them. It is not that we pretend their parents are married–and it isn’t only about child-support. (Which isn’t anything like alimony, by the way.). We have worked hard to eliminate the distinctions among children far more broadly.
I understand how you would like things to be, I think. But I don’t think you can persuade me that it is actually the way things are.
As to the presumption of parenthood, it’s kept around only because it enables people to use donors and avoid proper adoption. It only made sense when there were no paternity tests and there was a strong social and legal penalty against adultery. It was just a presumption that husbands were the fathers because that was all there could be. It wasn’t meant to legalize adultery or sperm donation and it is a perversion of justice to keep it around now that we have DNA tests and adultery is rampant. It is not a right of marriage to have other people’s offspring declared as your own just because you are married to the woman giving birth. We should get rid of it.
yes oh thanks but why did you say bio dad take back seat to her husband?
I think this fails to take into account the history of the presumption (which has morphed in interesting ways over time.). It arose in part because of the stigmatized status of illegitimate children. One way to avoid inflicting the stigma was to place those children in the “legitimate” category–and that’s what the presumption did. Whether it has a continuing role to play today is a fair question to ask. For many people it is a huge convenience. It is the route by which virtually all married men become legal parents. You could move to universal DNA testing–which I know some would prefer–but no state has done that. I’m not even aware of really credible efforts to make that moved.
Instead what has happened is that the presumption has become less durable–it can often be rebutted now in a range of circumstances. The specific circumstances when it can be rebutted–and who can rebut it–vary. I think it is the case that it generally cannot be rebutted when it is invoked by husbands and wives together who wish to raise a child that is not genetically the husband’s where the child is a child of adultery. Maybe you would disagree with this, but it is understood to be one of the privileges of marriage.
the husband could not have a claim if his wife objected and wanted to name her new boyfriend instead. if the husband was not the bio father and she did not want him listed hed loose. whereas she could not have him not named father if he was the bio dad. Shes got too much power
they are legally related because SSM allows a same sex partner to claim automatic parentage via the marital presumption.
they are conceptually related by the common, althought not universal, devaluing of biological relatedness in family building.
this particular article however takes it a step further than most, in claiming that other laws related to reproductive technology, in this case surrogacy, should be structured to serve gay couples.
(this was in response to G’s comment saying ” what is the connection between SSM and 3PR)
I’m not totally sure what the “they'” in the first sentence refers to. That said, I think I agree with you up until the last bit of your comment.
It’s true (as I think you say) that same sex marriage gives access to the marital presumption and thus connects to legal parentage. It’s also true, that same-sex families generally devalue genetic relatedness. If there are going to be two equal parents of the same sex, then genetic connection cannot be that important, because at most one of them can be genetically connected. (Actually, there are some curious and nearly paradoxical practices here. The fact that the men mixed the sperm suggests that they did value the genetic connectedness in a way, doesn’t it?)
I guess what I’m not sure about is where you see the article asserting that surrogacy should be structured to serve gay couples. It seems to me that there’s clearly a case made for surrogacy, but why wouldn’t it be equally useful to all those who might need it, including heterosexual couples?
“But for Mr. Sigal and Mr. Hoylman, two gay men, the birth narrative carries with it an extra frisson of the illicit that seems to them more than a little archaic and unfair in the post-marriage-equality world.”
this is followed by a couple of paragraphs about a gay centered lobbying effort.
I think I see what you mean now. I guess from my point of view this isn’t an effort to make surrogacy particularly available to gay men (as opposed to straight couples) but rather to ensure that it I available to gay men to the same extent that it is available to straight couples and additionally that it is more available to anyone who wants to use it.
In fact, I don’t like the argument that access to marriage does/should increase access to various ART technologies. But that’s just my personal view.
I see your point here although I’m not sure I agree with you about tone. I should go back and reread for that.
But putting tone to one side, certainly one should not discard concerns about baby-selling simply because one supports same-sex marriage or the rights of same-sex couples or even because one supports surrogacy generally. Child trafficking is (and should be) a terrible crime.
The question, of course, is whether surrogacy is the same as selling a child. (You can (and many here do) ask the same question about selling eggs/sperm.) For anyone who supports surrogacy or the gamete markets or whatever one is thinking about, the answer is necessarily “no, it is not the same.” That’s because everyone pretty much agrees that selling children is not okay. But of course, I would never expect anyone to simply accept the conclusion that it is not the same. This is all about what the arguments/assumptions are.
For many people (I would think Marilynn is among them but I don’t mean to speak for her) surrogacy isn’t like selling a child because the woman who gives birth isn’t a parent. She’s more like a baby-sitter. You can pay a babysitter and not be accused of buying a child.
In any event, this means that the approval of surrogacy isn’t really tied to approval of gay rights of any kind. It’s about what makes a person a parent–why a person gets to claim that title. (Of course, you can support surrogacy only for heterosexual couples, but that’s not, I think, anything the article dealt with.).
See, as i understand it (someone correct me if i am wrong…) New York is one of those states that refuses to differentiate between a pregnant woman carrying her own genetic embryo, or someone elses for them. (you oughta like that julie!). Although many people would view the two situations entirely differently. I’m not a fan of either, but i would say only the woman carrying her own embryo is child trafficking.
But since New York won’t differentiate they are forced to declare the whole thing illegal due to child trafficking, which in my opinion is really the only way to go if you won’t differentiate.
clarification i wrote “only the woman carrying her own embryo is child traffikcing” i meant in the the case that she actually gives it over in the end.
3 years ago I agreed with you that only a mother contracting away her own kid would be guilty of trafficking. But egg donors contract away their offspring clearly in their agreements and don’t enjoy the wide reaching exemption from parental responsibility in the Upa that sperm donors should not have but do. That really makes a gestational carrier part of a supply chain that helps traffic minors and conceal their bio parents identity and helps conceal their adoption. A person does not have to be the parent to be guilty of trafficking many middle men get involved. you wouldn’t even need to profit to bee guilty of participating in trafficking
Well they are not selling sperm or eggs or babies. We describe it as egg selling or donation when in reality not only do their contracts say otherwise so do the clinics and federal and state tax law. They interdependent contractors of clinics and or contractors for private individuals receiving compensation for their services which is distinctly different than taxes owed on the sale or even transfer of property or merchandise or organic commodities. People who want to do this must first agree to reproduce themselves and agree not to take responsibility for their resulting offspring when born. That’s the short version of the service contracted for. They receive a 1099 for the money they were paid for work performed as a contractor, not for the tax due on merchandise sold. If sperm were merchandise and it was donated the would not be given money they’d get a receipt for the value of the donation to write off next years taxes. So the reality is that sperm or eggs are harvested in order for them to perform part one of the terms of their agreement which is reproduction. Part 2 of the agreement is not performed until their children are born. They are just paid up front for work to be done for the first !8 years of their kids life.
To say they are reimbursed for their time and inconvenience is to say they are paid for their time doing a job same as any other job. Its not paid by the widget. In the long run baby selling is inflamitory and I have backed off using it because its not accurate and is sort of propagandaish and really i just want to be straight up. They are being compensated to abandon their parental responsibilities for their offspring and for their silence not to identify themselves as the parent or challenge anyonesclaims of parenthood. They dont own their offspring or parental title or custody to sell them as products they are just being paid to give up custody and parental title and then be silent anot challenge others claims. They are agreeing to help conceal evidence of their childs adoption help keep it out of court and off the record
Given the cost of surrogacy, I’m not convinced that forcing a NY couple to travel to CA, for instance, is really ruling out that many couples. So, I understand your point that there’s a possibility of skewing surrogacy towards NY couples who can afford to work with someone outside the state but I’m not sure that many couples are ruled out.
For example, the cost of an abortion is relatively low so, yes, making it illegal in one state and forcing people to travel to another can be a burden to a great number of people. However, the cost of surrogacy (even in a place like CA where it’s legal) is so high that the people who can consider it probably have the resources to travel outside their home state, anyway.
Nevertheless, I’m thankful there are rational states like CA where surrogacy is legal and gay couples can build their families despite the nosy, judgmental, and unproven objections of others.
Good points. Once you’re in the 100K range, what’s the added 5K of going cross country, right? Maybe it doesn’t matter. And I don’t mean to encourage a race to the bottom–paying surrogates less and less to make it affordable.
Julie wrote: “But maybe it’s just wealth inequality that bothers me–and that’s a topic rather beyond my scope here.”
OR perhaps it’s you inner feminist/conscience that is really bothering you but your rational, public, lawyer, “advocate” in you can only speak about the money aspect. The law seems to be only able to address money issues. This goes much deeper than money. I think that is why it bothers you.
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The [surrogate] birth mothers won’t ever be contacted or shared in photos, even though it was their voices the babies heard and responded to in-utero, their bodies who nourished and sustained them and prepared for their arrival.
The mothers who bore Tate and Estelle are eliminated from the children’s history, treated as nothing more than disposable uteruses.
The physical, emotional, spiritual bonds that develop between mother and child during pregnancy are rendered void by a transaction.”
http://www.smh.com.au/comment/surrogacy-industry-a-return-to-the-dark-days-20140215-32sf0.html
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FINRRAGE (Feminist International Network of Resistance to Reproductive and Genetic Engineering) is an international network of feminists who are concerned with the development of reproductive and genetic technologies and their effects on women.
http://www.finrrage.org/
Oh no doubt my inner (and my outer) feminist is a bit worried about surrogacy. That feminist concern cuts in various ways, however. For instance, the feminist in me is suspicious of a world that takes this uniquely female capability (being pregnant) and says “you can give that away altruistically but you cannot sell it.”
At the same time, I agree with what I take to be implicit in your comment and the link. The practice of globalized surrogacy can be extremely demeaning/harmful to women. There’s lots that is deeply troubling in the “baby farm” models you sometimes see/hear about it Thailand and India. In those instances the power imbalance between the intending parents–be they gay men or not–and the surrogates can be extremely problematic.
But I don’t think it has to be that way. And at least some people who use surrogates (the ones I know personally all happen to be gay men) do maintain a relationship with the surrogates and they encourage their children to have a relationship with them as well. As with so many things, surrogacy can be done in ways that are better or worse. My personal choice would be to allow it but to look for ways to ensure it is done well and without exploitation. But I know some people would say that’s just impossible or that it isn’t worth trying because the magnitude of the harm is too great.
While the article was overall a decent piece, I was not fond of some of the flippant explanations and what I consider to be poor word choices. The majority of IMs are not jealous shrews who will always make their GC’s lives miserable. As with adoption, it is important for any IM to resolve her grief around not being able to carry before starting down the surrogacy path.
I do agree that it does raise interesting points about what it means to be a mother. I’m a parent via surrogacy (I’ve said it before in comments here, but I don’t comment often, so I’m not sure if that fact would be remembered) and sometimes I feel like a fraud. I’m not able to participate in so many of the conversations that we have about pregnancy, birth and the early parts of taking care of a newborn: sickness, labor, breastfeeding, etc. I wonder if I wouldn’t feel like a fraud if I had been able to carry.
I think NY’s ban on surrogacy definitely contributes to the idea that surrogacy is a rich person’s solution and lends weight – usually erroneously – that surrogacy is about an economic imbalance of rich couple/poor couple and that exploitation is high.