Not Having Parental Rights Vs. Having Them and Losing Them

I’ve been thinking a bit more about the recent Tennessee case that was the subject of my last post.   I discussed the facts in the earlier post but will run through some of them again quickly here.   The Tennessee events giving rise to the case, informatively entitled “In Re Baby,”  began when Jennifer E. agreed to serve as a surrogate to Luca G. and Antonella T.    Pursuant to the agreement, Jennifer was artificially inseminated using Luca’s sperm.

Shortly before the resulting child was born Jennifer, Luca, Antonella and Jennifer’s husband, Joshua, jointly petitioned the court to establish parentage.  The hope was to ensure some sort of legal clarity before the birth of the child.   The court declared that Luca was the child’s legal father and also determined that any rights Jennifer might have theoretically had were forever terminated.

After the child was born Jennifer, who had apparently changed her mind, sought to prevent Luca and Antonella from taking the child with them. 

A Recent Surrogacy Opinion from Tennessee–Though Maybe Not The End Of The Story

There’s been a lot of discussion of surrogacy in the comments here recently and I’ve been meaning to pull the topic back into a main post (because I think this makes it more accessible to readers.)   And now I have a vehicle–albeit an imperfect one–to do this:  A recent opinion by the Tennessee Court of Appeals.   The case is called In re Baby, which is among the more curious captions I’ve seen (Does it sound like a pop song?), but it bears some thought.

Luca G and Antonella T  (an Italian couple, unmarried at the beginning of this saga) entered into a surrogacy agreement with a woman in Tennessee, Jennifer E, and her husband, Joshua M.     Pursuant to the agreement, Jennifer became pregnant via artificial insemination with Luca’s sperm.    Since this means that Jennifer was genetically related to the child it makes her a “traditional” rather than a “gestational” surrogate.   In November 2011, before the baby was born, the four people involved here filed a joint petition to establish parentage of the child.     The idea here was to have legal parentage all sorted out before the child was born.  In response to the petition the court issued an order in December 2011–still before the birth of the child. 

A Modern Family Wedding

I know I am terribly far behind in comments and I do promise to get to them soon.   I just seem to be hopelessly pressed for time.   In any event, I found this little tidbit and I hope it might appease some of you while I get myself back on track. 

I’m a big fan of the NYT weddings/celebrations section which appears every Sunday in the Style section.   This past week there was this entry.   Steven Fuchs and Brian Lancaster were to be married this past Sunday afternoon.  (I hope it all went off without a hitch.)   They’ve been together 26 years.   Here’s the detail that caught my eye: 

And now Mr. Lancaster and Mr. Fuchs have two children of their own, 6-year-old Anna and 4-year-old William, who are to attend the wedding along with their surrogate mothers.

Parentage, Surrogacy, and the Seamless Fabric of Law

As I mentioned in yesterday’s post, I was heading off to a meeting where we talked about surrogacy.   This meeting and then the comments on yesterday’s post (which you might wish to go and read) have put me in the mood to continue musing about the topic at least a bit longer.   Some of this really is drawn from responses to comments, but I figured I’d try to draw it all together a bit more neatly here. 

First, it is worth remembering that the law governing parentage has been evolving over a very long time.    But to be clear, it isn’t law in the same sense that the laws of nature are law.   Law about parentage is made by people and it has varied to suit historical and cultural needs.  

I think this point often escapes notice and it has been controversial when I’ve raised it before.   It’s easy to think of parentage is a sort of natural law–a man and a woman engage in intercourse, the woman becomes pregnant and in due time a child is born and the man and the woman are the parents.   

What’s the Difference, III

This picks up (not surprisingly) from What’s the Difference, II which is a a couple days back.   That post, of course, will send you back to the original What’s the Difference? To make sense of this one, you’ll need to have read the other two.

This is about the difference between adoption (open adoption, specifically) and surrogacy.  And I’m up to examining my proposed difference 2 from last time.   To refresh your memory, difference 2 has to to with the order in which events occur.   Specifically, in an open adoption the pregnancy occurs first and the potential adoptive parents come along afterwords.  Obviously, the agreement isn’t made until after they parties meet.   So the pregnancy precedes the agreement.   In surrogacy the agreement precedes the pregnancy.

Of course, it isn’t simply a question of order–in one instance things happen first A then B and in the other, first B then A.   The more important point is that in adoption the pregnancy exists before the adoption agreement and hence, isn’t caused by the agreement.   In surrogacy, the pregnancy wouldn’t exist but for the agreement.  

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.

Defining Terms

This is doubtless something I should have been more explicit about long ago. (I’ll try to link it back to some of the places I should have put it.) There are various forms of surrogacy and I need to be clear about which one I mean to be talking about.

Sometimes a woman become pregnant via donor insemination, with the intention of bearing the child for the sperm donor (and perhaps his partner/spouse as well.) The woman is genetically related to the child she gives birth to, as is the donor. This was the case in Baby M. There’s nothing particularly high-tech or modern about this form of surrogacy. (There are some biblical antecedents, as in the story of Hagar and Ishmael.) It is very likely that a court will recognize the woman who has both the genetic connection and gives birth to the child as a mother. Baby M, again. You might think of this as “regular” surrogacy. (In the UK it is called “straight surrogacy.“) This form of surrogacy is of only limited commercial interest.