Tag Archives: contract

Surrogacy, Contracts, Promises and Control

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

Surrogacy, Contracts and Promises

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

Surrogacy, Contracts and Remedies for Breach

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

Indiana Sperm Donor Contracts: When Is The Man Who Provides Sperm A Father? It All Depends

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

Surrogacy Again–Tentative Language Choice?

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

Which Comes First?

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

Altruistic Surrogacy and the Power of Naming

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

Commercial Surrogacy–More Questions, Some Answers?

This takes up from yesterday’s post, so you’d best start there.

I want to start by making explicit one point that I think has been (should have been, anyway) implicit.   I have no problem with the surrogate receiving money.   Indeed, it would trouble me greatly to set aside this one activity which is uniquely female and then say it could not be the subject of compensation.  That simply seems like one more instance of devaluing women’s labor (forgive me the pun).

The question for me is assuming you can give the surrogate money, what is the money for?   What, exactly, are you buying?    I’ve discussed this before, but I think I can come at it from a different angle here.

I’ll start on solid ground.  I think we all pretty well agree you are not buying her parental rights.    That amounts to buying a child and we do not (as yet) buy and sell children.

Now there are two ways you can assert you are not buying a child even as you give the surrogate money.   One is to say that she is not a mother.  If she’s not a mother, you cannot possibly be buying her parental rights, because she doesn’t have any parental rights to sell.  That’s the reasoning of commercial surrogacy generally.  You then characterize the money as payment for her services in caring for the child.

The other rationale is to say that she is a mother and that you are paying expenses of the pregnancy.  It’s a bit unclear to me what you get in return for paying the expenses.   But this is the rationale for payment in what is called “compassionate surrogacy” in the UK.

A common feature of both of these rationales is that the surrogate’s parental status doesn’t change as a result of the monetary transaction.   She either starts out as a mother and remains one (compassionate or altruistic surrogacy) or she never becomes a mother at all (commercial surrogacy ).

I’ve talked about the critical difference between the two surrogacy models before.   In compassionate surrogacy, the surrogate is a legal parent of the child.  She retains the right to change her mind about delivering the child to the intended parent(s).   In the US version of commercial surrogacy, the surrogate has no right to change her mind–indeed, there is nothing she can change her mind about, since she is never understood to be the mother of the child.  Only under the latter conditions that surrogacy can exist as a significant for-profit industry.

It seems very likely to me that if you set the two models side-by-side, prospective parents will pick the commercial surrogacy model every time.   It’s better for them in that it relieves them of a good deal of uncertainty.   (Not all uncertainty, of course.   The outcome of pregnancy is always uncertain, even if the surrogate is bound.)   Given the path that leads many heterosexual couples to surrogacy–long experience of unsuccessful attempts at child-bearing–relief from uncertainty may be very highly valued.

I find the altruistic model far more appealing and there are reasons why society as a whole might prefer that model, individual preferences notwithstanding.  Altruistic surrogacy invites a better dynamic between the parties. It allows the surrogate to receive money (which I assume will increase the number of women willing to be surrogates) but at the same time emphasizes the altruistic nature of the endeavor.  it seems to me far less likely to be exploitative.  The question I am left with is whether it is really workable.   It does mean that the person or people intending to be parents must live with the possibility that the surrogate will change her mind.   In short, it requires a great deal of trust on the part of the people hoping to become parents.

Gender Irony?

In my last couple of posts I’ve been examining the ways in which surrogacy (at least commercial surrogacy as it is practiced in the US) seems to pit women against each other. I’m thinking about instances in which a heterosexual couple employs a surrogate. (If a gay male couple uses a surrogate, there’s only one woman in the process and, as I noted earlier, that seems to make things easier.)

It’s ironic (and also a pity) that the two women–the surrogate and the woman from the contracting couple–end up as adversaries. After all, part of the reasons women are willing to be surrogates is to help other women who are unable to bear children. (That’s included in every account of surrogacy I’ve seen in the popular media, including the recent Newsweek cover story.) It’s not impossible to imagine surrogacy portrayed as an instance of one woman reaching out to help a sister in distress.

It’s easy to see that a woman might feel compassion for another woman who was unable to sustain a pregnancy–given the importance of pregnancy in the cultural model of womanhood. But from the recipient’s view it is a complicated “gift” the surrogate is willing to offer. As I write this, I am reminded that I might use the term “barren’ to describe the woman who requires the services of the surrogate. Surely that is a dreadful term to use to describe oneself or another. Continue reading

Shouldn’t She Be A Father?

I’m picking up from yesterday–so you might want to check that post out first.

In 1993 the California Supreme Court issued an opinion in a surrogacy case called Johnson v. Calvert. (Sorry about that link–the copy it takes you to isn’t the best in terms of format. But it is a full PDF of the opinion–the best one I could find easily.) It’s a gestational surrogacy case, which is to say that the woman who gave birth to the child (Anna Johnson) was not genetically related to the child she gave birth to. In this instance, the child was formed from the egg and sperm of the married couple (Crispina and Mark Calvert) who contracted with Anna Johnson. (This distinguishes the case from the other classic opinion, Baby M. In that case, Mary Beth Whitehead (the surrogate) was genetically related to the child she gave birth to. In the UK, this is sometimes referred to as “straight surrogacy.”)

The case was enormously controversial at the time it was decided. It remains one of the definitive legal opinions in the area, even though it is really quite specifically about California law. Without going into detail about that, I wanted to offer an observation. Continue reading