Last week I made my second attempt at a discussion on surrogacy and contracts. At that time I promised to go on to remedies, but in the meantime I’ve also been thinking about what I wrote and whether it requires a little further elaboration.
In my earlier post I wrote about how those who are intending parents might want to control many aspects of the surrogate’s life during the time the surrogate is pregnant–things ranging from what she does or does not eat to the sorts of prenatal care she receives to decisions about whether to have an abortion. It’s not hard for me to understand that this desire might exist. But I think I jumped to quickly from understanding that the desire exists to accepting that people might act on the desire. Continue reading
Last week I put up a post about surrogacy and contracts. It was not one of my best efforts–I knew just enough to be dangerously confusing. I’m going to try again and though I’ve linked to the earlier post, I’m not sure it’s really helpful to actually read the thing.
The starting point for this consideration is the approval of surrogacy in a general sort of way. If you think surrogacy is morally wrong and should never be approved, then the rest of this discussion won’t have any relevance to you.
But let’s suppose that you think a woman is capable of agreeing to be a surrogate for another person or people and that you think women should be allowed to do this. (I do think this, as you will know if you have been reading the blog. For extensive discussion of a wide range of issues, try the tag “surrogacy.”)
It seems quite reasonable to me that the surrogate and the person or people for whom she is acting will want to have a written agreement. Continue reading
This is another post inspired by the AAARTA conference I just attended. There was an excellent and thought-provoking discussion about surrogacy contracts that really got me thinking.
I should note at the outset that the participants to this discussion take the desirability of surrogacy as a given and so were focussed on what terms belong in a contract and what might happen the event the contract terms are breached. Since I’ve generally been engaged in the preliminary conversation about whether and/or under what conditions surrogacy should be allowed, I found this discussion fascinating.
There are an astonishing range of topics that might be covered in a surrogacy contract. Continue reading
In late December the Court of Appeals in Indiana issued an opinion in a case involving paternity of a sperm donor. It’s rather a curious one.
The facts are fairly simple. Mother (as she is named by the parties) was in a committed lesbian relationship in 1996. She and her then partner wanted to have a child. Father (that’s what the court calls him) agreed he would provide sperm. He did and MF was conceived.
Several weeks before MF was born Mother and Father entered into a written agreement. The agreement, drafted by Mother’s lawyer, included a waiver of rights to support by the Mother and a corresponding waiver of paternity rights by the Father.
Seven years later, in 2003, CF was born. Mother was still in a relationship with her lesbian partner. Apparently Father was again the source of the sperm. Continue reading
Over a week ago I wrote that I needed to come up with some new language to distinguish between two forms of surrogacy that I had been calling “altruistic surrogacy” and “commercial surrogacy.” The distinction is, to my mind, crucial. But the designations I was using weren’t really apt. The vast majority of surrogates are motivated in part by altruism, whether they work in a more generally commercial system or not. And the majority of surrogates receive significant amounts of money, whether they are engaged in what has been called compassionate or altruistic surrogacy or not. Thus, most surrogacy is both altruistic and commercial.
This recognition lead me to want to find a better name for the forms of surrogacy I seek to distinguish, one which actually emphasizes the difference. I’ve been casting about now for over a week with little success. In the meantime, I must have something to use. So for now, though I don’t think it is perfect, I will settle on “binding surrogacy” instead of what I have been calling “commercial surrogacy.” “Binding surrogacy” is at least a move in the right direction. In what I have been calling “commercial surrogacy” and will now call “binding surrogacy” the surrogate is legally bound to surrender the child when it is born. Continue reading
While I’m stuck on the language front (see previous post) I figured I’d turn to something else I’ve been thinking about.
Some discussions of surrogacy begin with the question of whether we should allow surrogacy. I’m increasingly inclined to say that the answer to that, at least for me, depends on what exactly you mean by “surrogacy.” But that’s actually not the focus of what I want to write about here. For now let’s just assume you mean surrogacy where the woman who gives birth is legally compelled to surrender the child. (You can leap back to some older posts for some musing on different things “surrogacy” might mean.)
The point I want now is that however you answer that question, you are also answering a second, unarticulated question. That second question is “Should a woman who gives birth be recognized as a legal parent of the child she gives birth to?” If you say we should allow the form of binding surrogacy I describe, then you must also say she is not a mother. (That’s because, as I’ve remarked a number of times, we do not permit the purchase/sale of parental rights/children.) In other words, “yes” to surrogacy in this form necessarily requires “no” to the “is she a mother” question. Continue reading
Some time in the middle of March I wrote a post defining the terms I planned to use in the discussion of surrogacy. I wanted to be clear about the differences between gestational (or host) surrogacy and regular (or straight) surrogacy. I also wanted to distinguish between the surrogacy system in use in the UK and the system in use here in the US. (In the UK, surrogacy is legal as long as no money is paid to the surrogate beyond reasonable expenses.) I referred to the system in the UK as “compassionate” or “altruistic” surrogacy. I used those terms because I had seen them bandied about. And I referred to the US system as “commercial surrogacy” because, at the time, it seemed to me a critical and distinguishing feature of the system here.
Now that was some time ago and the discussion in this blog have proceeded quite a bit. The distinction between what I’ve been calling “altruistic surrogacy” and what I’ve been calling “commercial surrogacy” has become increasingly importance to my thinking. (You can see that here, for example.) Alas, it has also become clear that those were not the best chosen terms to use. I’ve touched on some of the reasons the terms aren’t well chosen before. But let me draw them together here. Continue reading
Posted in family law, language, parentage
Tagged Add new tag, altruistic surrogacy, commercial surrogacy, contract, gestational surrogacy, intended parent, mother, pregnancy, surrogacy, traditional surrogacy