Traditional vs. Gestational Surrogacy: Does the Difference Matter?

June 21, 2010 · 28 Comments

This is sort of picking up on my last post, so you might want to start there.   Here’s my working hypothesis:  If  you assert that the genetic connection between an adult and a child is not what entitles a person to be recognized as a parent of the child then you should not distinguish between gestational surrogacy and traditional surrogacy.  

I initially offer this as a logical proposition.   I understand many will not accept the premise–that genetic connection shouldn’t be determinative of parental status.   But should you accept the premise–even just for the sake of argument, then I think the conclusion follows inevitably.  After all, the difference between gestational surrogacy and traditionally surrogacy is that in the former the surrogate is not genetically related to the fetus and in the latter she is.   

I think this is worth highlighting, because I don’t think it is an obvious point.   For instance, many years ago, the first surrogacy case to capture the public imagination was Baby M.   This was a traditional surrogacy case–Mary Beth Whitehead was genetically related to Baby M.    The case was eventually resolved by the New Jersey Supreme Court and Ms. Whitehead was recognized as a parent of the child.   a

Since Baby M, traditional surrogacy has been viewed with distrust and suspicion and gestational surrogacy has become far more common.   That obviously suggests that many people think there’s a meaningful difference between the two things.  

This was brought into stark contrast for me in a recent NJ case I wrote about.   It’s a gestational surrogacy case and the question the judge had to decide was whether it was distinguishable (legally speaking) from Baby M.  The trial judge concluded it was not.  

I’m not suggesting that both forms of surrogacy should be permissible or that both forms of surrogacy should be impermissible.   It’s just that I think they ought to be treated the same.   Whatever the issues are about women’s right to give meaningful consent or commodification they should be understood to be the same.  

In terms of that initial proposition–that the genetic link should not determine parental status–I think there are strong feminist arguments in support of this contention.   

Legal parental status brings with it power, not only over the child, but over other parents of that child.   (I’ve written about this before.)  If a person who provides the sperm is necessarily a father then the ability of women–single women or lesbians–to maintain their own autonomous families is lost.   Every family would necessarily include a father.   

Again, I understand that for many people this is fine, even desireable.   But for those who value the ability of women to create families without fathers, I think it’s important to think through the logical implications of that stance.  And one place it should lead is to a refusal (or at least a reluctance) to distinguish between forms of surrogacy.  

There’s another potential gain for women here, I think.   Surrogates are always women.   Of course being pregnant and giving birth is physically stressful, but a preference for gestational surrogacy essentially requires would-be surrogates to agree to IVF as well as pregnancy.   That only makes the process harder, riskier and more stressful.  

I expect there are women who would agree to be gestational surrogates and not traditional surrogates.  Similarly, there are commissioning couples who would probably prefer to engage a gestational surrogate and not a traditional surrogate.   I’m not making the claim here that these preferences should be disallowed.   Rather, I want to suggest that, at least from my perspective, the law ought not to give meaning to the distinction.   And if I had my druthers, society wouldn’t either.

Categories: parentage
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