The New York Times Agrees with Me on Enforcing Reproductive Contracts

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assisted reproduction image

OK. OK. Not the Times per se, but the newspaper's editorial observer Adam Cohen does. On today's op/ed page, Cohen writes a column, "A Legal Puzzle: Can A Baby Have Three Biological Parents?"  In the column Cohen muses over various conundrums allegedly posed by recent legal wrangling over modern reproductive techniques, but comes to the right conclusion:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved (emphasis mine) is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

This is more or less the same conclusion I came to in my recent column, "Who's Your Daddy? Who's Your Other Daddy? Who's Your Mommy?":

Notions about the importance of genetic ties clearly inform the negotiations and the expectations between parties in various reproductive contracts, be they old-fashioned marriage contracts or newfangled surrogacy contracts. But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed. In general the best public policy for looking out for the interests of children will be to enforce the contracts under whose terms they were brought into being.

By the way, Cohen is a bit behind times on the three biological parents thing–there are already at least 20 children born whose genes derive from three different "parents" by means of ooplasmic transfer.

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  1. sweet, does this mean we can look forwards to Brangelina Aniston? On a more somber note ban this shit, I do not want to see a Billary Lewinsky.

  2. there are already at least 20 children born whose genes derive from three different “parents”

    Hey, that’s my mother you’re slandering there! She’s a good woman!

    1. And good in bed.

  3. Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved (emphasis mine) is more important than the genes.

    Bullshit! Again, this is nothing more than the end result of not considering embryos or fetuses as human beings. If they are human, then they have rights, and thus cannot become part of any agreement without their conscious consent. Only in the netterworld of “let’s get rid of intellectual inconveniencies” would such contracts be enforceable.

    Sorry, but just because something seems too “inconvenient” does not mean it should be ignored to unduly benefit a party in an agreement. The only OBJECTIVE truth that the law should and can use to detrmine responsibility for new life is genes, not people’s wishes. We’re not talking about allocating puppies here . . .

    1. OM: Well, then I assume if it’s genes that matter to you then the two gay fathers in New Jersey should get custody of their twin daughters? After all the genes came from the sperm of one of the fathers and donor eggs and there is no genetic contribution from the surrogate mother who just happens to be the sister of the other gay father. In this case, the court evidently missed the “OBJECTIVE” truth to which you refer because the judge just ruled that the surrogate (no genes remember) can sue for custody.

      In any case, and with due respect, you need to think more clearly about this issue.

      1. Re: Ron,

        OM: Well, then I assume if it’s genes that matter to you then the two gay fathers in New Jersey should get custody of their twin daughters? After all the genes came from the sperm of one of the fathers and donor eggs and there is no genetic contribution from the surrogate mother who just happens to be the sister of the other gay father.

        Why are you even asking me this? The answer is obvious – the two gay men should keep their daughters.

        Why assume my position (one of pure principle and logical consistency) would ipso facto mean I am agaisnt gay parents? Explain that to me, in detail – I must be dense or something . . .

        In this case, the court evidently missed the “OBJECTIVE” truth to which you refer because the judge just ruled that the surrogate (no genes remember) can sue for custody.

        So, stupid judge decides stupidly – who would’ve thunk it??

        OBJECTIVELY, the possessor of the genes gets the “prize”.

        1. No assumptions at all about your views on gay parents – just happened to be the most recent badly decided surrogacy case. And what if the surrogate had contributed an egg as well as her womb? Who then gets custody? Does she get to violate the contract?

          1. OM’s point is the contract is invalid from the beginning. Biological parents shouldnt have the ability to foist their responsibilities off onto others.

            That gets into a tricky place wrt adoption and etc, but babies arent property and standard contract theory doesnt apply.

            1. Oh, and I would have agreed with Ron completely until I read OM’s post. It put a new spin on things for me and changed my mind (for those that say internet arguments never change anyone’s mind).

          2. And what if the surrogate had contributed an egg as well as her womb? Who then gets custody? Does she get to violate the contract?

            Of course she does not get to violate the contract – if she retracts, it would still be fraud. The parent is entitled to compensation, just not a child – that’s the difference – that is for the family court to decide, based on the best interests of the child, not the best interests of the parents.

            The same way with adoption contracts – if the person that bears the child reneges the contract, the parents are entitled to compensation – however, they are NOT entitled to a child that has NO genetic relation with them.

            1. I would say the contract is invalid and no fraud is even possible.

              1. Re: robc,

                The contract is invalid when it comes to the third party – this is, it cannot stipulate something that violates the rights of a third person, in this case, the child. Even if the best interests of the child would to be served by enforcing the contract, it would still not be valid, since a child is not property.

                However, you can still argue fraud in that a contract was created under false pretenses. It would be no different than a contract for the sale of the Brooklyn Bridge – you are still entitled to your money back or compensation, even if the bridge was known not to be anybody’s to be sold.

            2. “The same way with adoption contracts – if the person that bears the child reneges the contract, the parents are entitled to compensation – however, they are NOT entitled to a child that has NO genetic relation with them.”

              There’s no reason for that to be so.

              Not to mention not in the best interest of the child – or future children to be adopted.

      2. “In this case, the court evidently missed the “OBJECTIVE” truth to which you refer because the judge just ruled that the surrogate (no genes remember) can sue for custody.”

        Women get all of the choices, don’t they?

    2. OM, are you actually and seriously arguing that embryos are capable of conscious consent?

      1. Tonio,

        You totally misunderstood the point – an embryo or fetus is NOT conscious, ERGO you cannot make him or her part of any agreement unwittingly, including “reproductive” agreements.

        1. OM – yes, I totally misunderstood. Thanks for clarifying. Sorry.

        2. Of course NO embryo ever gets to “agree” who his or her parents will be.

          1. An embryo’s parents are the people whose genes make it up, be it two or three (or one).

            Whether that is the legal standard is a completely different question.

          2. Re: Ron,

            Of course NO embryo ever gets to “agree” who his or her parents will be.

            Of course. That does not mean a “reproductive agreement” should be enforced by giving a child to a person that has NO genetic connection to the child.

          3. Of course NO embryo ever gets to “agree” who his or her parents will be.

            Currently…

            1. Of course, no embryo ever gets to “agree” to being named Lester.

              Of course, no embryo ever gets to “agree” to being born.

              Of course, no embryo ever gets to “agree” to being conceived.

              Of course, no sperm ever gets to “agree” to being shot into any drunk girl’s orifice.

              NO FREE WILL!!!

        3. We make children part of agreements unwittingly all the time. How many hundreds of thousands of 1 year olds have had cochlear implants installed? I’m sure none of them gave informed consent. The parents made the decision. Likewise with tons of other medical procedures, enrollment in schools, indoctrination in religion, etc. Parents may not “own” the child, but until the child is old enough to make decisions on its own, they do get to decide what is best… now replace “parents” above with “legal guardian” and it still works — if that works in the case of adoption, why not in other cases as well?

    3. Responsibility means living up to your commitments. If someone agrees to be a surrogate carrier, and for whatever reason, decides to sue for custody, the judge should uphold the agreement between the parties – unless that agreement was to the detriment of the baby/child, which would be hard for the surrogate to argue.

      Bring that to a tougher issue – birth parents who want custody of a child they’ve given up for adoption.

      Once again – your genetic contribution does not trump your responsibility to uphold the adoption agreement. If the state took that position, the child adoption process would be undermined. That’s not good for children who need parents, is it?

      In cases where there are no prior agreements – e.g. extra-marrital affair – I would side with genes – if it comes to a dispute.

      1. I disagree, standard contract law doesnt apply – babies arent property and cant consent either.

        However, I think the law can prevent reversal of an adoption after it is finalized. Up until that point, genes trump. A surrogate that contributed no genes is just a for-rent vessel and would have no say. A surrogate that contributed genes would have full parental rights up until any adoption was finalized.

        1. I agree, genes should trump, unless and until there is a formal agreement.

          1. That gets very close to allowing baby sales, IMO. I would make all such agreements short of actual adoption finalization null. You can reach an “agreement”, you just have to accept that a genetic parent can change their minds until the closing is final.

            1. After all, you wouldnt make a baby with anyone whose handshake you couldnt trust, would you?

                1. As long as her boobs aren’t too droopy and her face isn’t that crooked. Natural selection and all that…

                  1. but that didn’t stop your mom from getting laid

      2. Once again – your genetic contribution does not trump your responsibility to uphold the adoption agreement.

        Of course not and potential adoptive parents that are rebuffed are entitled to compensation, just not a child. Children are not property, nor should embryos or fetuses.

        If the state took that position, the child adoption process would be undermined.

        Not necessarily. Potential adoptive parents are entitled to compensation if the person that promises to give her baby reneges on the contract. If the contract stipulates compensations and penalties, and if those are enforced (as they should), then adoption does not have to be as haphazard as you think.

        That’s not good for children who need parents, is it?

        1. Are we arguing only pre-term scenarios? In those cases I would agree with a financial penalty would suffice.

          Once a child is in the custody of adoptive parents, there should be no avenue for the genetic parents to reclaim the child – including financial penalties as the cost of doing so.

        2. Of course not and potential adoptive parents that are rebuffed are entitled to compensation, just not a child.

          I would probably apply the doctrine of specific performance here, especially since the birth parents are likely judgment proof.

          Contracts get specifically performed when monetary compensation cannot make the wronged party whole.

          In adoption, perhaps, subject to some outer limit when declining to terminate the vested parental rights of the adoptive parents would somehow cause irreparable harm to the child.

    4. “If they are human, then they have rights, and thus cannot become part of any agreement without their conscious consent.”

      Umm… so, how exactly do we determine intent in normal cases of parenthood? No one asked my daughter whether she wanted to go home with her mom and me, they just kinda assumed.

  4. I still say all offspring should, by default at birth, become property of the State and “parents” would have to petition for custody (and pay nominal processing fees).

  5. If you can’t show pictures of cock and pussy, then why are spem and post-cleavage zygote okay?

    1. Because that’s what turns Ron on.

  6. “That would provide useful guidance for courts to think about fractional parents”

    and for judith light’s granddaughter in her cinematic debut on lifetime in 2025

    1. also known as ellie light (full effing circle)

  7. I think you’re all missing the point here. The real purpose of this is to permit single women whose boyfriends take on some parenting duties demand child support from those men. After all, their performance of such duties proves they intended, the absence of an adoption petition or marriage notwithstanding, to be fathers, so they should have the responsibilities of fathers. As Randy Bottoms said above: “women get all of the choices, don’t they?”

    1. Women really do get all the choices… it upsets me greatly, particularly with regards to child support payments. It’s well established that the mother gets to decide whether or not to keep the baby, regardless of whether the father wants to have it or not (and this makes sense to me, because it is her body). The problem is, the father has to pay child support if the mother has the baby. He has no say in whether or not she has the baby, but he has a lot of money riding on her decision. It’s grossly unfair, especially since it provides an economic (not to mention revenge) incentive for the woman to have the baby. I think the mother should decide whether to have it or not, but the father should be able to opt out of child support (and all custody/contact with the child).

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