Who's Your Momma?: Determining Parentage to Eliminate Sex Bias in Surrogacy Cases

Abstract

Without medical assistance only two roles in reproduction exist. Regardless of legal parentage, the two reproductive roles remain the same from individual to individual; men contribute genetic material, and women both contribute genetic material and gestate the child until birth. Surrogacy has divided reproduction into three roles. To grant legal parentage through the traditional means divests the intended parents of all ties to the child whose birth they caused. Additionally, original ideas of parenthood may grant parentage to sperm donors, egg donors, or gestational surrogates — individuals the law already denies rights.Surrogacy allows couples that could not have children in the traditional way to “procreate.” But the separation of the two female reproductive roles — genetic and gestational — divides women’s rights in half. A development that gives women the children they previously could not have also lessens women’s rights compared to their original status. In past legal developments surrounding parenthood, men received fewer rights than women because of women’s ability to gestate. Now, the importance of gestation places some women in the same position as unwed men.To simply apply the jurisprudence that arose before surrogacy became a legal issue would be to divest women of the rights they held before by default. In light of the changing definition of “family,” legislation should approach custody disputes between the three parties with the term “parent” instead of the rigid terms “father” and “mother.”