A few days ago, the New York Times ran an article on the legal regulation of gestational surrogacy, or rather, the lack thereof. A gestational surrogate carries an embryo created from either (1) the intended parents’ eggs and sperm, (2) donated eggs or sperm, (3) or donated eggs and sperm. Although some people object to all types of surrogacy, it is this third type that is most controversial because the intended parents—the persons who contracted with the gestational surrogate—have no genetic link to the child they contracted to create.
Gestational surrogacy raises many questions—for example, what happens when the gestational surrogate refuses to relinquish the child at birth—but I want to focus on one issue I find particularly disturbing. In an effort to provide uniformity and predictability, the American Bar Association has drafted a model act for states to adopt. The act would require individuals seeking to create a child using a gestational surrogate to obtain court preapproval and undergo a home study similar to that required of adoptive parents. At first glance, preapproval seems like a good idea as it would ensure that the parties know their rights and that the intended parents are fit to raise a child. My problem with the proposed act is that the home study and preapproval process is only required where neither of the intended parents has a genetic tie to the child.
On one level, the ABA’s proposal makes sense. Some the concerns raised by gestational surrogacy—the commercialization of procreation and commodification of children—might not be present when at least one of the intended parents is also a biological parent. Arguably, it might be more difficult to justify regulation of surrogacy agreements when parents are raising their own biological children and relying on technology to merely facilitate the creation of those children, as opposed to creating and raising children unrelated to them.
I am troubled, however, by the message the law would send if it required court preapproval of gestational agreements involving intended parents who are unable or unwilling to provide their own gametes while imposing no such burden on those who provide their own gametes. It may signal that parents who lack genetic ties to their children are somehow not “real parents” in the same way as those with biological ties. I wonder whether this message would further fuel the desire of individuals currently using all kinds of technology to create their own biological children, sometimes at great physical, emotional, and financial cost to them and their families. I also wonder whether such a law would signal to adoptive parents and children that their families are somehow different (and less desirable) than those who share biological ties.