When a Deal Was a Deal
There once was an expectation that when people entered into a contract and made a solemn agreement to live by the terms of a written and signed document, there was a legal obligation, and to some, an added moral obligation to live up to the dictates of that agreement.
Recently, in the realm of surrogacy and genetic donation agreements, the notion of living up to one’s word has been all but thrown out the window. I believe that, at least in some small part, the reason is that our legal system grapples with issues of morality and ethics and becomes hobbled when there is an added philosophical dimension.
When child custody issues arise, agreements between parents are of limited import to the courts because they look to the best interests of the child. Similarly, when issues of adoption agreements arise, the courts get involved with a view to the best interests of the child. These are examples of our legal system’s involvement in moral and ethical issues.
Our country is philosophically divided on the rights of the embryo or fetus, and as a result, the United States is essentially divided on its view regarding abortion which stems from the question of when does life begin? There are those who feel that life begins with birth and some who feel that life begins with conception.
The difficulty with the abortion divide is that from a practical perspective, it plays out in the legal arena but is deeply rooted in religious, philosophical, moral and ethical arenas.
One would think that even if a person believed that life began at conception, he/she would readily agree that genetic material – irrespective of whether it was male or female — that had not yet been successfully been combined with its counterpart would not be considered a life.
Accordingly, from a “life” perspective, an agreement to donate genetic material — sperm or egg — should be enforced. That, however, is far from certain.
Welcome to the intersection of Law Street and Philosophy Avenue, a street corner with a horrible history of multicar accidents.
While it may be clear that some people feel that genetic material is not a “life,” there is some aspect to it that should preclude people from buying and selling genetic material as if it were a commodity like corn or wheat. Apparently, there is no clearly articulated reason other than a certain level of discomfort based on one’s philosophy, morality or ethics. To somehow synthesize these divergent views, many jurisdictions do not allow the sale of genetic material, feeling more comfortable allowing compensation for the effort or pain necessary in the procurement and development of the genetic material. From the point of view of the genetic donor, it is not a significant distinction as long as he/she gets paid. Obviously, if the fees are exorbitant, there are those who argue that it transcends the effort and procurement expense but seems to be more like a sale and, therefore, is inappropriate, reprehensible or downright illegal.
Other jurisdictions outlaw compensation for genetic material.
All of this becomes interesting when we enter the realm of surrogacy.
In setting up Proactive Family Solutions and in attempting to set forth the various iterations of surrogacy, we have found it very useful to deal with the following explanatory framework.
It is self-evident that the birth of a child results from three contributing components – male genetics, female genetics and a womb. While there are three ingredients, the list of participants in the process (or the number of actors – as in people who act) ranges from two to five. If a man and a woman have a child together as the intended parents (IPs) and the male utilizes his own genetic material and the female uses both her genetic material and her own womb, this case has a cast of two because the intended parents are the same as the genetic donors and womb participant.
If the intended parents each supply their own genetic material but use a surrogate, there would be a cast of three. If the intended parents use the genetic material of the male intended parent and use an egg donor as well as a surrogate, there would be a cast of four. Similarly, if the genetic material of the intended female parent, donated male genetic material and a surrogate were used it would once again have a cast of four.
The numbers will also be dependent on the IP being one or two.
A cast of five is where IPs use two genetic donors and a separate surrogate. At Proactive Family Solutions, we have dealt with virtually every permutation except for a cast of five.
Apparently, the various jurisdictions and courts are all over the place regarding the rights of genetic donors whose contribution is lifeless genetic material and surrogates whose only contribution is the womb. They may differ when it is the intended parents who are the people that both facilitated the process for obtaining the child, and in most cases, furnished at least some of the genetic material, as well as obtained everyone’s agreement that they were to be the intended parents.
A New Jersey court recently conferred parental status to a surrogate who has no genetic link with the children and who agreed to have no parental rights.
On the other hand, the United States Federal Government, with regard to granting citizenship to children born abroad, will only look to the genetic father or mother and will not confer citizenship based on the citizenship of the surrogate.
Other courts have conferred rights to genetic donors despite the fact that they were not the IPs and agreed to relinquish any rights regarding the future children born utilizing their genetic material.
It is my belief that if the courts want to start making a retroactive analysis after a child is born as to the rights of a person who donated genetic material and/or who made a deal where, by any stretch of the imagination, that which he/she donated was not “alive,” they should just outlaw surrogacy. In these cases, people should be allowed to go to those jurisdictions that permit the building of families and either allow or, in fact, encourage surrogacy like India.
The pain and uncertainty that flow from Monday morning quarterbacking is unnecessary especially when dictated by people who have not gone through the rigors and challenges of infertility or whose orientation or family structure is such that they are not able to have cast of two children.?
