Father Of Multitudes?: Thai Surrogacy and More

There’s a story from a few weeks ago that I’ve been thinking about.   A young Japanese man, Mitsutoki Shigeta, hired a series of Thai surrogates.  He became a genetic father to at least 16 children this way, spending something like $500,000.   While is motives remain obscure, he apparently wanted to continue at something like this pace for as long as he could, presumably creating hundreds of children.

Now the obvious thing to talk about here–and one that has gotten a lot of attention–is what this says about the Thai surrogacy industry or surrogacy more generally.   Surely there is a lot to think about.   But I am not going to add to the welter of comments on that topic you can already find.

I want to think about this more broadly.  

When Mothers Move…Or When Women Are Mothers?

Lots of lively discussion on yesterday’s post.  It might make sense to read that post to get up to speed.   I tried to respond to some of the comments but it occurred to me that it might more effectively move the discussion along to do a new post.  (I find reading the endlessly nested comments can be difficult.)    In doing this, it should be clear that I am building on/responding to a lot of points other people made here.

You may recall that the key issue in the case (which will be heard again today) is whether McKenna (the mother of the child) did anything “wrong” when she left CA where Miller (the father of the child) lived in order to attend school in NY.    One critical point to note is that she made this move when she was pregnant (not, apparently, for nefarious reasons, but because a semester starts when it starts.)   The thing that really ticked me (and many other people) off is that the NY judge seemed to consider a pregnant woman moving as some sort of child relocation issue.

This brings me to two different points.  First–on relocation cases generally.   There’s a substantial body of case law out there about how to deal with instances where there separated parents sharing custody of a child and one parent wants to move out of the area.   You could see this case as a variation on that problem.  I think to some degree my familiarity with this line of cases has shaped my response to this case.

On the relocation problem generally there are two key points that have to do with gender.   Both may have some connection to this problem.

1.  Courts are mostly concerned when the parent with primary custody wants to move.  If the parent who visits the child wants to move, it’s not seen as a legal problem.  Consistent with this, I’ve rarely seen any restrictions on the right of the non-custodian’s relocation but you see restrictions on the custodian’s freedom to relocate with some regularity.    (You can see why this is, I think.  But we can explore it if need be.)

It turns out, again for reasons I don’t plan to discuss right here, that it is far more common for mothers to have primary custody than for fathers.   That means that the asymmetry noted in the preceding paragraph turns out to work in a gendered fashion:  Fathers are typically free to relocate and mothers are not.   It shouldn’t be a perfect match, but I must say that every relocation case I’ve seen concerns an effort by a father to prevent a mother from relocating.

2.   Once upon a time, family law was quite gendered.  Men had the obligation to support the family and women had the obligation to keep the house.   We’ve left those days behind–formally at least. There’s no overt gender role assignment in modern family law.    But I think it’s fairly clear that there are some lasting effects of the earlier gender presumptions.   You cannot so change social expectations by changing the text of a statute.

At least for some people–including some judges, who are after all people–when a man moves to better support his family he’s doing the right thing.    Thus, he is viewed favorably or benignly.    When a woman does the same thing, it is viewed somewhat differently.   More broadly stated, I think that men who really invest in their careers aren’t as frequently condemned as parents as are women who do the same thing–because a man’s historical role as parent has been to be the breadwinner while a woman’s has not.

I think both of these aspects of the general relocation problem are at play in the Miller/McKenna case.   I do think that if Miller had moved for some great job opportunity, it would not have aroused the same feeling in a judge that McKenna’s move did.   To vastly oversimplify–he’s supposed seize career opportunities–she’s not expected to do so.   And I think we (the public?) would have figured that he could still play a role in the child’s life–returning to visit as he was able.   I disagree with those who would say we would have characterized his action as abandonment.    If he had moved for a good reason–like a better job or education–I don’t think it would be viewed that way.  (I recognize, of course, that this is all speculation, too.   That means we cannot really settle this disagreement.)

Second, apart from all this relocation stuff, there’s another issue in this case–the question whether relocation principles apply before the child is born.   If the child had been born and then McKenna had moved, it would be a standard relocation case.   But McKenna moved before the child was born.   That distinction matters to me.   At the time McKenna moved she is not a legal mother and Miller is not a legal father–and so the whole relocation analysis is (in my view) inapplicable.   This may just look like timing, but it’s a matter of important principle to me.

I can see that this is in some ways a curious result.   If she moves in December–no legal issue–even though we know she’s about to give birth to the child. If she moves in March–legal issue.   I guess I have two thoughts about that.   First, I draw a bright and heavy line between pre-birth and post-birth.  I think the game changes at that moment in dramatic ways.   But second, the line may look even more important in this context because of the way the relocation cases have evolved.  If we handled those cases more equitably, then maybe the timing issue wouldn’t look so stark.

When Do Father’s Rights Mean Controlling the Mother?

There’s a lively conversation in the comments of the most recent posts here–one I mean to pick up and move along shortly.  But I feel that I need to take time out to blog about this story, which I must confess is one that I’m really bothered by.    It’s from the NYT, which means that for some of you it may be on the wrong side of a pay wall.  I’m sorry about that, but it does seem to be their story.

I’ll start with a summary.  It’s obvious that there are facts in dispute and I’ll try to note specifically where that is the case.   Most of what seems to me to be important is actually not in dispute.

Bode Miller and Sara McKenna met via a high-end dating service.   They both lived in California.   Miller is an Olympic skier.   McKenna is a former Marine and firefighter.  He’s now 36 and she’s 27, but I think they were dating in April/May, 2012.

They dated for about a month-and-a-half.   When they split up, McKenna was pregnant, although obviously she wasn’t very far along. 

An Adoptive Mother Reflects on Mother’s Day

Here’s another essay by an adoptive mother that caught my eye.  (I wrote about a different one last week–they actually make an interesting contrast.)   Christina Darden Hjort wrote her essay just for Mother’s Day.   She’s an adoptive parent  of a very young child and though she briefly alludes to her own journey to parenthood (which is largely the subject of the earlier essay I wrote about in the linked post), the mother she pays tribute to is her child’s birth mother.    It’s worth taking the time to read what she wrote.

Adoption can be so many things.  There are terrible stories in the press about the corrupting role of money, which operates on many levels.   There are stories of children snatched from their parents or taken from them under various misleading or false pretenses.    Those stories tend to get press coverage. 

Adoptions like Hjort’s typically do not end up in the paper.  After all, what’s the news there?  But just because it isn’t in the papers doesn’t mean there isn’t a story to be told.

There’s no doubt there is often some sadness at the core of adoption–as you can see from Hjort’s story–and here the sadness is Britt’s story.  Britt is the birth mother of the child.   In a perfect world a woman like Britt either would be able to raise her child or wouldn’t be giving birth.   But we are so far from that perfect world, that adoptions like this one will Hjort’s will be with us for a long while, I think.   So the best we can do is to think about what is best for the children (openness and honesty come to mind) and also for the birth parents.  

That means giving a woman like Britt the choice to figure out her own needs, to decide for herself how much contact with the adoptive family she wants.   And it means recognizing her loss, which is what Hjort’s essay does.   It’s a nice tribute on Mother’s Day.  

 

Genetic Parenthood, Surrogacy and Gender

There are so many different threads running through the conversations in my last few posts.   It’s hard for me to keep track of it all.    I just thought I’d try to write something short to isolate some questions about gender and legal parentage.   I want to make a few observations even though the evening grows late and I’m probably not thinking all that clearly.

First, it seems to me that if you take genetic relationship as being the criteria for assigning legal parentage, then it is easy to figure what to do about surrogacy.   Gestational surrogacy with the genetic material of the intended parents is unproblematic. 

More Challenging Technology Ahead and What It Means for Our Language

Some of the discussion in recent posts has been about terminology (particularly “biological mother” and “genetic mother”) and the ways in which (at least in my view) technological progress can create ambiguity.    Consider, for example, the technology that may soon allow use of mitochondrial DNA from one woman and nuclear DNA from another.   In the face of this, what is the meaning of the term “genetic mother?”

To me it seems clear that in instances where this technology is used, it would encompass both women.   Thus, a term that once uniquely identified one and only one woman no longer would do so.   A legal rule that provided “a genetic parent will be a legal parent” would now potentially lead to a three-legal parent family.    (Just as a reminder, I’m not in favor of such a legal rule.  

Criminalizing Pregnancy and the Problem Of Bad Mothers

There’s a long story  called “The Criminalization of Bad Mothers” by Ada Calhoun that was in yesterday’s New York Times.    It’s about prosecution practices in Alabama where a law designed to protect kids from exposure to meth labs is routinely used to prosecute women who use drugs while pregnant.  Perhaps it is only tangentially related to my topics here, but I think it’s worth a look and a few thoughts.   (If you’re wondering, I’ll do this first and then get over to comments that are waiting.)

The crime in Alabama is chemical endangerment of a child and its a Class A felony, which means it carries a heavy penalty–mandatory ten years to life.  

The Persistence Of Gendered Parenting Norms

A very quick note here on something from the NYT Motherlode.   Iif you have a two-person, mother/father family, sometimes the mother goes to work and the father stays home and sometimes the father goes to work and the mother stays home.  I’ll grant you that the latter probably occurs more often than the former, and that’s important to pay attention to.   But are those two situations–mother work/father home and father work/mother home–qualitatively different?  

About That “I’m Married, Too” Argument

I’m about to head out for travel but will try to put something quick up to follow on the last post.   (If you go read that first it will help here.)  Neil offered a novel argument in trying to avoid the effect of the marital presumption.    Remember that some argue that the marital presumption is valuable because it ensures the child is raised in an intact marital family if there is one willing to raise the child?  Well, Neil pointed out that he was married and had an intact family, so why not let him raise the child instead of Mary and her husband?   (Or maybe the child could be raised in two intact marital families–which must be better than just one?)

Now on one level I think this takes amazing chutzpah.  Here’s a guy who has had an affair with a married woman that resulted in the birth of a child and he’s asking for special treatment because he’s married, too.   I know I am quite old-fashioned here, but the fact that Neil is married does not improve my opinions his actions here.

On the Bookshelf: Red Dust Road and Using the Right Words

As those who read this blog know, I think a lot about language.   It’s been the subject of posts from time to time and even has its own tag.    It’s always been fascinating to me that we use the language of family all the time even though we don’t always have agreed upon meanings to the terms.   (I’m thinking of things phrases like “She’s like a sister to me.”)

Anyway, my ears always perk right up when I hear discussions of the language of family.  (And if I’m reading it, my eyes do whatever the equivalent is of perking up….what would that be?)

Yesterday I was listening to a podcast I subscribe to–it’s from the Guardian (UK) and is about books.  Someone (maybe Sarah Crown?) interviewed Jackie Kay, a poet and author who recently wrote a book called Red Dust Road.