More on the Downsides of Surrogacy

There’s something weird about the ebb and flow in the media attention to surrogacy.  You seem to get a blast of positive coverage and then, a few weeks later, a corresponding blast of negative coverage.  Right now we are clearly in negative territory, as this article nicely shows.       It’s about the black market for surrogacy that currently exists in China–and apparently exists on a pretty large scale.  (The article quotes an estimate of “well over 10,000 birth a year.”   That is a pretty huge number (though of course, China has an enormous population.)

No one could mistake this for a positive article.   As with most black market enterprises, black market surrogacy is rife with abuse and exploitation.   While the surrogates employed by one agency (Baby Plan) are (to my mind, anyway) surprisingly well-paid ($24,000), the conditions under which they operate seem nightmarish to me: 

Who Do We Worry About With Surrogacy?

As my vacation winds down, I have been thinking about this article, which I’m sure many of you saw.  (It was on the front page of the New York Times a couple of days ago.)

There’s been a lot of discussion about surrogacy here over the years (and I’m actually working on a more sustained law review type piece on the subject.)   You all probably know that mostly I worry about the vulnerability of the surrogates.   They are virtually always women who have less power, less money and less education than the intended parents.

While I haven’t written much about it, I know many people worry about the vulnerability of children conceived via surrogacy.   No question that children are vulnerable.   But all the studies I’ve read tend to show that children born via surrogacy don’t really fare differently than other children–which is to say that most do just fine.    Nothing I’ve seen suggests that surrogacy per se is a problem in this regard.

Anyway, in general the people I’m the least concerned about are the intended parents–those who contract with the surrogates in order to become parents.    And that is where this article comes in: 

A Small Twist On The Jason Patric Problem

A couple of days ago I blogged about the contested parentage case involving Jason Patric.  There’s been a bunch of discussion there and as I was reading through it I thought of an interesting variation on the problem.

To be clear, this has absolutely no basis in fact, as far as I know.   But since (as I pointed out before) we really don’t know the facts that seems fine to me.  Instead, a variation like this (what law professors generally call “hypothetical”) allows you to test you thinking about legal rules.  It allows you to see which facts would matter to you–and that in turn can lead to questions about why those facts matter.

With all that in mind, here’s the imaginative exercise.   Suppose they facts are as we know them–which is to say that there is disagreement between the parties about what exactly the plan was, but somehow the plan went forward.  Further, suppose that (as is the case) after the birth of the child the man played some role in his life.  (We can talk about what role if you like–but in the real case that’s a part of the contested facts, so I won’t lay it out here).     But now suppose that just before heading into court we learn that, through some terrible error, the sperm used to create the child was NOT Jason Patric’s.   

Is Jason Patric A Dad, A Donor or Both?

I know that the parentage case involving Jason Patric and Danielle Schreiber has been all over the web for a long time but as it has finally arrived in the NYT, I thought I might as well take the time to comment.  I don’t think I can begin to summarize the facts, so for starters I’d suggest you go and read the article.   (I’m going to work off the facts as reported there.)

One thing to note at the outset is that many of the facts are disputed.  I don’t pretend to have any special knowledge of the facts.  Thus, I do not know about what did or did not happen.  For instance, I do not know why Jason Patric was the one who took Gus to be circumcised when Gus was eight-days old.   But there do seem to be a bunch of things that there is agreement about.   Jason Patric is the genetic father of Gus. 

How Do We Find Parents At Birth, Part II

I’ve been meaning to get back to this thread I started so confidently with “part I.” Without a “part II” it seems sort of silly. This post will make more sense if you go back and read that other one first.

Just the same I’m doing a brief recap.  Maybe it’s like a running start.  Maybe I’ll say something slightly different.   I’ll try to summarize some principles and then go forward.

I generally support the legal recognition of functional/de facto parents.  What I mean is that I think the law should recognize the people who actually function as the social/psychological parents of a child as the child’s legal parents.   My primary reason for endorsing this approach is that it is, in a general way, good for children.   I believe that children need stability in those primary relationships.  (I think I could back this up with a lot of studies, by the way. )   So the law should protect them.

Now there is another thing about the functional/de facto approach. 

A Return to the Larger Project–How Do We Find Parents At Birth? Part I

I’m going to turn away from the current discussion (which might have run its course or gotten out of hand) and return to something I’ve thought about for a long time. I’ve also written about it here and elsewhere–with something less than totally satisfactory results.

This is rather a large topic to tackle–perhaps not so well suited to the blog format (where believe it or not I try to keep things in manageable bites). The best I can do is to put it in parts, I think, and to try to make each part enough of a whole to serve. But I have taken the liberty of calling this one “Part I” because of my firm conviction there will need to be a “Part II” and very likely more parts beyond that. (And no, the Roman numerals are not an homage to the Superbowl, but since I’ve brought it up–Go Hawks!).

Okay–so here we are. As I trust everyone knows, the main topic of this blog is how we do and should determine legal parentage. And as most/all of you also know, I have a pretty firm view on this: I’m inclined towards using something at least akin to a functional or de facto parent test. In other words, if you have acted like a parent–if you have in fact created a parent/child relationship (defined psychologically and socially) with a child, then the law should recognize and protect that relationship. It should do so primarily because this will generally serve to advance the well-being of children who must be able to rely on those relationships which sustain them. You can see some cases discussing this if you look back to a couple of posts about new cases from WA that I put up in late December. (It’s hard for me to link to them just now. I’ll do that later today when I’m on a different machine.).

Now this approach–the functional or de facto approach–works fine with kids who have been around for a while. If you’ve got a ten-year-old you can see who her/his psychological/social parents are. You can do that for a three-year-old, too. And even a six-month-old. But what about a new-born? Who are the legal parent(s) of a newborn?

Let me start by noting that I do see that we want newborns to have legal parents. Maybe I should examine this proposition more closely than I am right now–I could always come back to it. But given that legal parents are those charged with both responsibility and decision making for the child, it seems to me we want someone in the goal from the get go.

Now it’s easy for me with my functional test to get to 1 legal parent for the newborn–the woman who was pregnant/gave birth. I won’t say there is a child before birth (note there’s a big issue I’m skipping over–when is it a child–but I want to go forward here). During the course of the pregnancy the woman who is pregnant bears enormous responsibility for future well-being of the child-to-be. She stands in a unique relationship to it. And I’d bet that if you took a newborn and put her/him in a room with four women, one of whom was the woman who gave birth to him, you’d find some signs that the newborn distinguished her from the other women. (Anyone know if this is actually true? I haven’t seen a study, but I’m still convinced it’s likely so.).

I do understand that even this point–which for me is a simple starting point–is controversial. It means that pregnancy matters. It is not the position taken by most (all?) of those who advocate for the use of surrogacy. But I find it impossible to say that pregnancy doesn’t matter. Indeed, consider what women go through to be pregnant/give birth–sometimes to children they will have no genetic connection to.

Anyway, let me move off of that starting point (with the understanding that anyone can drag me back there to discuss further.). The question for me is whether there can be a second legal parent at birth and, if so, how is that person identified.

I see the appeal of having two legal parents at birth. Partly this is about meeting people’s expectations–lots of time pairs of people want to be parents together. Partly it may just be copying the traditional (and generally biological/genetically based) model. But I’ve had trouble getting there. One obvious way–to count the genetic father as the second legal parent because he is the genetic father–is entirely unacceptable to me. (I don’t mean that a genetic father cannot be the second legal parent. I just wouldn’t award him that status based on his genetic connection alone.). So I wrote an article that is called “Counting from One” that actually suggests that maybe we should just start with one.

But I’ve never found this wholly satisfactory. And so I’ve been trying to work out a different approach. Again, there’s an obvious candidate–the intentional parent. Suppose there is a second person who had intended to be a parent to the child and that intention was shared by the women who just gave birth. A doctrine recognizing intentional parents could give that person legal status at the birth of a child.

But I have problems with intention alone (and “alone” is a key word here) being a marker for parenthood. And that’s where I’ll take up next time.

Thanks for bearing with me.

Sorting Pregnant Women: Four Types, Which Get Grouped Together?

Someone (ki sarita, in fact) raised an excellent question in an early comment on the last post:   Why would you call Monica Schissel a surrogate when she is a pregnant woman and she is genetically related to the fetus she carries?  There is some discussion of this in the last post, but I’ve been thinking about it more generally.   This leads me to some observations that might be useful or, failing that, at least interesting.

It seems to me you can think about pregnant women as falling into one of four categories.  Here they are:

A:   Intending to be parent and genetically related to embryo

B   Intending to be parent and NOT genetically related to embryo

C   NOT intending to parent and genetically related to embryo

D.  NOT intending to parent and NOT genetically related to embryo.

How The Law of Parentage Got To Be Such A Mess

I’ve been thinking, while not able to be on-line, about why this area of the law is as it is–a total mess, full of inconsistencies and contradictions.   Wouldn’t it be nice if it were tidy and neat, as many areas of the law actually are?

There’s no simple answer to the “why” question, of course.   Why would there be a simple answer?   But I do have some ideas.

There have always been parents, of course, by which I mean two things:  First, that men and women have engaged in sexual activities with resulting birth of genetic offspring and second, that the young creatures require care and someone has provided that care,  at least to some of those offspring.  

Motherhood In Pieces

There’s an extraordinarily lively discussion in the comments of a recent post on surrogacy.   I confess I have actually lost track of the various threads as I haven’t had the time to keep up.   The parts I have read have made me think–again–about the ways in which technology challenges us to rethink established ideas.  Given the surrogacy discussion I’ve been thinking about the deconstruction of motherhood.

Once upon a time a woman who gave birth was always genetically related to the child.   And keeping track of who gives birth, while not always easy (witness the famous story of the judgment of Solomon) is a whole lot easier than keeping track of who might have provided the sperm. 

Causation, Responsibility, Child Support and Parental Rights

The post from yesterday raises interesting issues about causation and liability for child support.   You may recall that the rationale of the court is (at least in part) that since the husband’s agreement to IVF was one of the things that set the whole process of creating a child in motion, he was responsible for child support.  This is a line of reasoning that has been expressed by many commenters here in the past–it’s rather like “you break it, you pay for it.”   It’s a variation on a pretty standard invocation of liability for damages to remedy a harm–something quite well-established in law.

Now I do understand the general idea that if you cause something to happen then you are responsible for it.  (Indeed, this is a pillar of my approach of parenting.)   But it isn’t always the easy answer it may seem and it isn’t always the right approach.