Try as one might, it is becoming more difficult to avoid talk of new “reproductive technologies” that promise a brave new world of childbearing. Advertisements on mass transit or the radio seeking “donors” of various genetic products are common in some cities. Billboards announcing reproductive services are common across the country. These technologies are also more frequently the subject of academic discussion, news reports and legal cases. In fact, the “frontier” of family law is beginning to resemble a science fiction scenario where courts and legislatures seek to go boldly where no man has gone before.

The “science” part of the equation comes from a host of technologies, some real (like artificial insemination, in vitro fertilization, and surrogacy) and others just imagined (like single-sex reproduction and cloning) that promise to create children for people who might not want to or be able to create them in the normal way. These technologies also promise an unprecedented degree of control over the childbearing process.

The law, increasingly, is supplying the “fiction” part with the enactment of statutes and promulgation of rulings that facilitate the desires of users of reproductive technology to nullify the paternity of some biological parents (like sperm and egg donors) and create “parenthood” in the absence of any biological tie (such as for same-sex partners of a parent whose child was created through assisted reproduction).

In fact, the combination of powerful ideological impulses in the law and technological advances in reproductive technology threaten a deconstruction of legal parenthood that involves, preeminently, a de-linking of the legal notion of parenthood from traditional understandings and natural ties.

Though still involving relatively small numbers of people, these new notions of parenthood are well advanced in the popular consciousness, promoted among academics, and increasingly shaping legal norms.

Recent developments illustrate this shift in perceptions of parenthood. They effectively highlight three prominent themes in the developing legal and cultural deconstruction of parenthood. First, the endorsement of an approach to childbearing where children are not so much begotten as acquired. Second, the treatment of children’s interests as subsidiary to those of adults, especially to adult decisions of how they will structure their intimate lives. Third, the endorsement of motherless or fatherless homes as in every way equivalent to homes created by a married mother and father.

Acquiring Children  

In October 2006, the Los Angeles Times published a detailed and forcefully written series of articles profiling two men who sought to create a child through a complicated surrogacy arrangement.[1] The men decided to “pay one [woman] to provide her eggs and then after fertilizing them in vitro with their sperm, pay another woman to carry the resulting embryos to term.”[2] Ultimately, three women were involved because the first woman hired to carry the fertilized eggs was unable to do so, and the sister of one of the men agreed to carry the eggs. This led to the premature birth and tragic deaths of twin children.

The series bristles with terms and ideas that emphasize the commercial nature of the process undergone to allow these men to have children they could raise together.

When the men are searching for potential egg donors, the reporter notes: “it felt more like catalog shopping than human reproduction.” The article also notes that they “hoped to exert some control over their child’s genetic makeup” and that the complicated arrangements the process required meant “it would take a village to manufacture their child.”[3] The articles conclude with an estimated cost for all the procedures of well over $100,000.[4]

The articles refer to shopping “the open market” for “genetic material.” The articles also speak of how “creating” a child through technology “would give them more control” and explains the men were interested in twins because this could “perhaps complet[e] their family in a single transaction.” The reporter explains that the children “would be the product of planning and intent” and refers to decisions to “buy” an egg and “lease” a womb. The surrogate was selected, in part, based on her decision to “defer to [the men’s] wishes and agree to a contract.” The single mother who agreed to carry the fertilized eggs admitted that the arrangement was “‘to an extent, it’s like renting your body out.’”[5]

This series and similar stories highlight the consumerist approach to childbearing at the center of the new parenthood and explain why the term “fertility industry” is now commonly used in reference to the various providers of medical services used in the acquisition of children through artificial means.

Primacy of Adult Desires  

The second theme is highlighted in a 2005 case in New Jersey that involved a child born to a woman in a same-sex relationship by means of artificial insemination. The non-parent partner sought to be designated a “co-parent” and the court agreed. The court only referred to the child’s father in passing, saying: “No agreement exists with the donor giving him any birthrights to the child.”[6] In addition to the contractual language, the court’s inversion of the term “birthright” is striking. The term has typically indicated something a child inherits by virtue of birth, but the court here uses it to indicate an adult’s dickered agreement to secure a property interest in a child.

Similarly, the Kansas Supreme Court recently refused to allow a sperm donor any relationship with the child he had helped to create because the mother had intended to raise the child alone.[7] In fact, a number of state laws provide a way for adults to effectuate their intent of creating a child with only one legal parent either through artificial insemination, surrogacy contracts, or egg donation agreements.[8]

In a more unique fact scenario, Maryland’s highest court issued a ruling in May 2007 that a child could be issued a birth certificate with only the name of the child’s father. The unmarried man had fertilized eggs provided by a donor and a surrogate had carried the resulting twins. The hospital had included the surrogate’s name on the birth certificates, but both she and the father sought to have it removed. The court reasoned that the name should be removed because the surrogate was not genetically related to the child, and if she could not deny parentage because of a lack of genetic connection to the child, she was being discriminated against on the basis of her sex since a man could use a lack of genetic connection to a child to deny paternity. A strong dissent pointed out that the decision would mean the child would have “no mother at birth”[9]—a pure fiction.

The Los Angeles Times story on surrogacy illustrates the primacy of adult interests in the new vision of parenthood. In describing an attorney hired to find a surrogate, the article quotes her talking to prospects: “This is more important for these parents than anything they’ve ever done. You’re changing somebody’s life profoundly, fundamentally, for good.”[10] This quote only indirectly references the child the surrogate is being asked to help create and only in the context of what he or she will mean for the intended parents. Similarly, the article describes the egg donor as having a realization of the men’s dependence on her donation to “fulfill their dreams.”[11]

In some ways, large swaths of the “fertility industry” are premised on the assumption that children’s needs are necessarily secondary to adult desires. The industry is dedicated not to ensuring children an ideal home or even a healthy beginning, but rather to ensuring that adults who want children can get them, even if that may mean employing practices that are clearly inappropriate for children’s well being. A New York Post article from early 2008 described the “inconceivably bad” (it’s not clear whether the pun is intentional or not) conditions at New York City sperm banks that reportedly resulted in multiple children born with autism who had been conceived with the help of the same donor and the use of sperm from donors who had engaged in “high risk” sexual behaviors.[12] In fact, this general lack of regulation is a characteristic of the “industry.”[13] It is startling given that the health and safety of children and potential parents is at stake.

Motherless or Fatherless Children  

The Los Angeles Times story mentions that one motivation of the men’s desire to use surrogacy (rather than adopt an unrelated child) was “to create a biological link across the generations.” The irony, of course, is that the child they intend to create will have only a tenuous link to one biological parent, but no significant relationship with a mother. Indeed, the story later notes that the men “wanted to cloak the paternity of their children, even from themselves, in order to reinforce their equal stature as parents.”[14] Thus, the arrangement could sever the child from any knowledge of his parentage. The shift in the legal understanding of parenthood occasioned by wide acceptance of assisted reproduction and alternative family forms has greatly contributed to the normalization of homes in which children will have no relationship with either a mother or a father.

For instance, a recent Washington case is typical of many others. In that case, the court held that the former partner of a mother whose child was conceived through artificial insemination was the child’s de facto parent. Thus, the partner could seek child visitation over the mother’s objection.[15] This court, and the many others that have issued similar rulings, have not felt any need to inquire about the father because he has typically been rendered a nullity by operation of law.

During the recent oral argument before the California Supreme Court in a case where the court is being asked to redefine marriage, a pro-family attorney was challenged by one of the judges for making an assertion that marriage has something to do with children’s well being. The questioning judge raised a 2005 California Supreme Court decision in which the court had held that the former same-sex partner of a child’s mother was obligated to pay child support. In that case, the majority had said: “We perceive no reason why both parents of a child cannot be women.” Now, it may be the case that the next judicial education seminar in California ought to include a high school (or, in California, perhaps elementary school) health teacher to help sort out this confusion, but this startling statement is more likely the result of an ideological commitment than biological ignorance. It is the court’s way of lending the state’s imprimatur to “new family forms.”

Implications of the New Parenthood  

Philosopher J. David Velleman has observed: “our society has embarked on a vast social experiment in producing children designed to have no human relations with some of their biological relatives.”[16] Maggie Gallagher wryly notes how far this new ideology of parenthood diverges from inherited ideals in an article about the phenomenon of anonymous sperm donation. She says, “Ideally, before a man becomes a father he ought to be able to be able to persuade some woman to marry him. But consider this as an absolute minimum: A man who wants to be a father ought to be able to find some actual live woman who wants to have sex with him. Call it nature’s quality control.”[17] Now, however, a man can anonymously create hundreds of children through sperm donation who will never know him and whose mothers will never know him.

Dr. Velleman observes: “The experiment of creating these children is supported by a new ideology of the family, developed for people who want to have children, but lack the biological means to ‘have’ them in the usual sense.”[18] Technological and legal changes obviously promise great possibilities for those adults who might otherwise be frustrated in their desire to raise children, but it is not as clear that this new project will enhance child well being or strengthen the social institution of the family.

Gilbert Meilander has noted of the parent child relationship: “Though the bond often fulfills us, it does not exist for the sake of our fulfillment.”[19] The new, consumerist approach to children threatens to invert this understanding by instrumentalizing children and making the process of their birth and upbringing a commercial transaction.

The consumerist ethic has already severely damaged other aspects of family life, as clearly illustrated by the experience of no-fault divorce. The idea that one’s commitment to a spouse is binding only as long as the commitment delivers what one bargained for in determining to marry has contributed to a weakness of the marriage bond and the concomitant ability of the marriage institution to shape individual behavior in family-centered ways.

Will the new consumerist notion of parenthood similarly devalue children? There is reason to believe it might. The Los Angeles Times story describes the negotiations the men engaged in with a potential surrogate about the possibility that the process might result in multiple children, beyond the twins or triplets they might be interested in. In this event, they would “ask for a fetal reduction” (abortion). They even hoped this provision could be part of their contract. Similarly, when the men are selecting an egg donor, they discussed their prospective child’s appearance: “‘You can’t ignore it,’ David said. ‘I mean, who wants an ugly child?’ ‘David, some people would be happy with that,’ Chad scolded. ‘But I mean, if you get to pick, what would be the best-case scenario? We’re not a normal couple, so, yeah we would be happy with anything we get. But when you get to choose…”[20]

One wonders what happens when these consumerist desires are frustrated. Will children chosen for a specific trait or purpose be less valuable to those who bring them into existence if they begin to believe the time and money spent acquiring them may not have purchased the desired result?  Selfishness and convenience are not attributes of a good parent.

Much of the strength of traditional family bonds is that they rest on an acceptance of unchosen obligations. In other words, the marriage vow includes a willingness to take what may come as a result and this includes children.

The new concepts of parenthood are built on completely opposite ideas. For instance, the idea that children will be better off if their creation was intentional and the process of their coming into being is expensive and controlled. In addition to being insulting of the legions of parents who have gladly and lovingly accepted and cared for children they created as a natural result of their marriage relationship, this idea suggests that family bonds we do not “choose” are less valuable than those we do. As another example, the idea that adults should only have to take responsibility for the children they create if they intend to do so. This idea is implicit in the statutes and court decisions that free biological fathers from any obligation to support or care for their children as long as they become fathers through the process of sperm donation and artificial insemination and similar statutes that free biological mothers from maternal responsibility if they are anonymous egg donors.

Again, the individualistic contractual ethic has not strengthened marriage; is there any reason to believe that shunning the ethic of unchosen obligation to our children is likely to produce better results?

The new ethic of parenthood is remarkably adult centered. Another recent media story ends with an observation of a 45-year-old man seeking with his partner to acquire a child through surrogacy. He says: “I can’t not have something I’ve wanted forever.”[21] Won’t the process, however, deny the child of something he or she may someday want desperately—a relationship with a mother? As family scholars have noted, “Children raised without their own married mother and father often have perspectives about their lives that are radically different from how the legal scholars, courts, and would-be parents expected they would feel.”[22] In fact, children conceived through donor insemination “often say they were denied the birthright of being raised by or at least knowing about their biological fathers.”[23]

Assisted reproduction technology does not instrumentalize only children. The providers of various genetic and reproductive inputs are likewise depersonalized. A father becomes a sperm donor, while a mother becomes an egg donor or surrogate. Unlike traditional notions that value mothers and fathers intrinsically, the new legal parent is the person who wills a child into being. Those who are involved biologically are merely product or service providers. In a world where fatherhood and motherhood are already being devalued, a legal endorsement of this shift is inauspicious at best.

The consumerist ideal of parenting, aided by technology and law, is fundamentally a dramatic social experiment with children serving as the primary guinea pigs. What evidence we have of “alternative family forms” like cohabitation[24] and single parenting[25] is not encouraging. We have even less information about arrangements in which a child is intentionally raised without either a mother or father who are to be replaced by a “co-parent.”[26]

Reclaiming Legal Parenthood  

The law does not have to facilitate this social experiment, however. While there are appropriate uses for some reproductive technologies (for instance, allowing the fertilization of a wife’s egg with a husband’s sperm when pregnancy and childbearing might not be possible in the normal way for the married couple), there is no reason the states cannot prevent uses of these technologies that commodify children and parents and work against the welfare of the children that are to be created technologically. Not all legal reforms will be politically viable immediately, but putting that question aside, there are a number of reforms states can and ought to undertake.

The most sweeping would be to limit access to assisted reproduction to married couples with their own genetic material. This is currently the policy in many nations and has recently been the policy in a number of others.[27] It addresses the concern of children being deprived of any connection to their biological parents and ensures them a chance of being raised by a mother and father. The child born as a result of such an arrangement would also benefit from the increased stability inherent in the marriage relationship.[28]

The likely objection to such a policy would be that it interferes with an adult’s right to procreate. Such a right was articulated in the United States Supreme Court’s important decision, Skinner v. Oklahoma,[29] where the Court held that a state couldn’t sterilize a person against their will. The court did not say, however, (and it is hard to imagine a responsible court would) that individuals have a right to acquire a child by any means. Indeed, it is commonplace in constitutional law that there is no right to adopt a child.[30] Similarly, at least one federal court has rejected a prisoner’s claim that his constitutional rights were violated when he was not allowed to send his sperm by mail to his wife.[31] These and similar legal rules recognize that a principle meant to restrain state coercion in procreative matters (like a right not to be sterilized) does not necessarily create a duty in the state to make all procreative options available to adults (and certainly not upset traditional legal notions about parenthood to facilitate them). In addition, the pressing concerns about assisted reproduction, especially for children, described above would certainly counterbalance any adult autonomy right that might be asserted.

A more modest response to assisted reproduction technology would be for the state to end the practice of anonymous sperm and egg donation. The current protection of anonymity disserves children who are left in the dark about an important part of their identity and genetic background. It also provides a safe harbor for biological parents who want to reject any responsibility for the children they create.

Along with anonymity, states could allow donors, like all other biological parents, to be liable for child support. This would very likely dramatically dampen enthusiasm for making donations, but it would be consistent with traditional legal notions regarding parents’ duty to support their children. It is a firm principle in American law that a parent cannot bargain away a child support obligation, such as in a prenuptial contract or divorce agreement. There is great irony in the fact that the state goes to great lengths to collect child support from some fathers (even those who had only one contact with the mother and those who specifically did not intend to become parents), some of whom are doing their best but are treated like criminals, while simultaneously shielding other biological fathers from any parental responsibility because their role in the baby making process was mediated by technology.

The states could also prohibit any compensation for egg and sperm donations. A number of states now prohibit surrogacy arrangements because of the concern that they are exploitative and bear an uncomfortable resemblance to baby selling.[32] These concerns also apply to the selling of one’s biological material to be used by another person to create a baby.

At the very least, courts should refrain from adopting legal rules (like de facto parenthood) that give parental status to non-parents without requiring a termination of the natural parent’s rights and requiring an adoption procedure.

These kind of legal reforms would go a long way to restoring the law’s respect for natural realities of family and parenting that have historically been reflected in our laws.

What does the brave new world of consumerist parenting hold in store? It may take years to begin to quantify that, but a vision of family life dominated by adult desires, where children and parents are instrumentalized, and “choice” is exalted as the reigning value should warn us to back away from the brink. Ultimately, it should call us back to the inherited understandings of parenthood that have served us so well.

Historical experience and common sense suggest that mothers and fathers are not fungible, but the new parenthood assumes the exact opposite. And the children who are subject to these adult transactions, of course, cannot be consulted until it is too late.

Endnotes:

1 Kevin Sack, “Fathers in the Making” Los Angeles Times, p. 1, (October 29-31, 2006).

2 Ibid. (October 29, 2006).

3 Ibid. (October 29, 2006).

4 Ibid. (October 31, 2006).

5 Ibid. (October 29, 2006).

6 In re Parentage of Robinson, 890 A.2d 1036 (N.J. Superior Court 2005).

7 In re K.M.H., 169 P.3d 1025 (Kansas 2007).

8 Citations to these statutes are collected in William C. Duncan, “Does the Family Have a Future?” North Dakota Law Review (forthcoming, 2008).

9 In re Roberto d.B., 923 A.2d 115 (Maryland 2007).

10 Kevin Sack, “Fathers in the Making” (October 29, 2006).

11 Ibid.

12 Janon Fisher, “Don’t Bank on NYC’s Bad Seed; High Risk Bungling at Spermfirms” New York Post, p. 7 (February 17, 2008).

13 See Helen Alvare, “The Case for Regulating Collaborative Reproduction: A Children’s Rights Perspective” Harvard Journal on Legislation vol. 40, p. 1 (2003).

14 Kevin Sack, “Fathers in the Making” (October 29, 2006).

15 In re Parentage of L.B., 122 P.3d 161 (Washington 2005).

16 J. David Velleman, “Family History” Philosophical Papers vol. 34, p. 360 (November 2005).

17 Maggie Gallagher, “Children of Sperm Donors Have Rights, Too” Townhall.com (February 20, 2008).

18 J. David Velleman, “Family History” p. 360 (November 2005).

19 Gilbert Meilander, “The Meaning of the Presence of Children” in The Nine Lives of Population Control (Michael Cromartie, editor, 1995).

20 Kevin Sack, “Fathers in the Making” (October 29, 2006) (ellipses in original).

21 Susan Donaldson James, “More Gay Men Choose Surrogacy to Have Children” ABC News (March 12, 2008) at http://abcnews.go.com/print?id=4439567.

22 Commission on Parenthood’s Future, The Revolution in Parenthood: The Emerging Global Clash Between Adult Rights and Children’s Needs, p. 17 (2006).

23 Ibid.

24 See William C. Duncan, “The Social Good of Marriage and Legal Responses to Non-Marital Cohabitation” Oregon Law Review vol. 82, p. 1001 (2004).

25 See Linda J. Waite and Maggie Gallagher, The Case for Marriage pp. 124-149 (2000).

26 See Affidavit of Steven Lowell Nock, Halpern v. Toronto, [2003] 65 O.R. (3d) 161 (No. 684/00) at http://marriagelaw.cua.edu/Law/ cases/Canada/ontario/halpern/aff_nock.pdf.

27 See Lynn D. Wardle, “Global Perspective on Procreation and Parentage by Assisted Reproduction” Capital University Law Review vol. 35, p. 413 (2006).

28 See William C. Duncan, “Marital Status and Adoption Values” Journal of Law and Family Studies vol. 6, p. 1 (2004).

29 Skinner v. Oklahoma, 316 U.S. 535 (1942).

30 Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004).

31 Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002).

32 See Amanda Mechell Holliday, “Who’s Your Daddy (and Mommy)? Creating Certainty for Texas Couples Entering into Surrogacy Contracts” Texas Tech Law Review vol. 34, p. 1101 (2003).