The Catholic Thing

The Legal Making of Orphans


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By John M. Grondelski
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Now for Doctor Grondelski's column...
Michigan, which in 2022 ensconced a right to abortion-on-demand into its state constitution, may be on the verge of another adaptation to the sexual revolution: adopting commercial surrogacy.
The Great Lake State, along with Nebraska and to some degree Louisiana, are the three states that still outlaw commercial surrogacy. "Commercial" surrogacy is distinguished from "altruistic" surrogacy, where the latter is nominally a volunteer undertaking. I say "nominally" because (a) how does one really monitor financial exchanges in such quasi-private contexts and (b) when does "compensation for care" (e.g., medical "expenses") blur into pay?
Are you surprised that the vast majority of states allow trafficking in children? If you are, you're so 1987, when New Jersey's "Baby M" case was decided. As bioethics activist Jennifer Lahl has observed, America is the "Wild West" when it comes to artificial reproduction.
Amid the controversies over abortion from the 1970s-90s, many state legislators decided to steer clear of any involvement in the emerging field of artificial reproduction, including surrogacy. And Roe fostered a perspective of treating childbearing as an "individual liberty interest" with which states should not interfere, a mindset that has perdured in the various post-Dobbs state constitutional amendments enshrining abortion-on-demand.
So, while those pushing commercial surrogacy in Michigan would like simply to suggest the state is catching up with all the others, in fact, the legislation advancing in Lansing is extreme.
Just as Obergefell redefined marriage to eliminate sexual difference, Michigan's proposed surrogacy law redefines parenthood to eliminate genetics and the bodily. The only "parent" in law in Michigan would be the person(s) commissioning the baby.
If there are two, they wouldn't even need to live together or have any formal relationship to be listed as "Parent One" and "Parent Two." (Yeah, sexual differentiation in parentage goes away, too). Parenthood becomes a state of mind.
We need to make ourselves fully aware of what that means.
For a child to come into existence requires genetics, gestation, and upbringing, what Catholicism once used to call procreatio et educatio. You need a man for sperm; a woman to provide an ovum. You need a woman - who may or may not be the woman who provided the ovum - to bear that fertilized ovum for nine months. And you need somebody to raise that newborn.
That used to be understood as what mothers and fathers do.
Technology has allowed the genetics, gestation, and social dimensions of parenthood to be separated into unrelated components. Surrogacy laws have decided that the only legally valued component is raising the child. All the other elements are deemed sub-personal and legally irrelevant to what constitutes a "parent."
Sperm and egg are not essential to parenthood: they are parts to be obtained. A female body is just a biological incubator, necessary only insofar as our technology has not (yet) found an artificial substitute for the interval between Petri dish and viability.
Of course, if gametes become mere "parts," one should be able to customize. Just as car buyers may like red over black, sedan over convertible, or leather upholstery over ...
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