When reproductive technology was new on the scene and being described as “science fiction becoming science fact”, the New Yorker magazine published a cartoon. It showed a line of adults (sketched in that magazine’s typically pear-shaped format – tiny heads with increasingly large bodies towards the legs) facing the reader, each holding a martini.
In front of the lineup, looking at them with their backs to the reader, a nurse is holding the hand of a very young boy and pointing at the adults. The nurse says to the boy: ”This is your sperm-donor biological daddy; your egg-donor biological mummy; your gestational surrogate mother; your social mummy; your social daddy; your psychiatrist, to try to sort you out; and your lawyer.”
A current case in the town of Cochrane, Ontario, is one example of the dilemmas that can arise from such separation of the elements of parenthood.
Nicole Lavigne is a lesbian woman living with her partner of fifteen years, Selena Kazimierski. Ms Lavigne inseminated herself with sperm donated by Rene de Blois, whom she’d known since elementary school. Ms. Lavigne says that Mr de Blois agreed that he would play no role in the life of Tyler Lavigne, the child who resulted from the sperm donation. After Tyler was born, Mr. de Blois changed his mind and has gone to court requesting to be recognized as Tyler’s father and given “general and liberal” access rights, accordingly.
Mr de Blois seeks to have the agreement he signed not to seek such rights set aside, it seems on two bases: That Ms Lavigne “threatens or intimidates” him with the contract; and that she has failed to carry out “her part of their original bargain, by carrying a[nother] child for him”.
One line of analysis of this situation would be in the context of contract law.
Contracts in Ontario, and all other provinces except Quebec, require consideration — “payment” by each party, which can be in the form of a promise — to be binding. Here that would be, “I’ll give you sperm/a uterus for ‘your’ child, if you’ll give me a uterus/sperm for ‘my’ child.” Even if the promise were not fulfilled, it would suffice for consideration and, hence, a valid contract.
Coercion or duress to enter a contract can make it voidable. But coercion or duress arising, as alleged here, from Ms. Lavigne’s relying on the contract would not do so.
Rather, the central question regarding the validity of the contract is whether it is contrary to public policy or public order and good morals, such that it is void. But, even if the contract were valid, the more personal the performance of its provisions are, as here, the less likely a court is to enforce them.
I suggest, however, that many of us will have an intuitive reaction that there is something wrong in dealing with this situation as governed by a contract that two adults have entered and to which the person most affected, the child, was not a party.
In a 2007 case, Jane Doe v. Alberta, the Alberta Court of Appeal decided along those lines. (Permission to appeal to the Supreme Court of Canada was denied, which is an indirect affirmation of the judgment.)
A man and a woman were living together and the woman wanted to have a child and the man did not. She decided to become pregnant through anonymous artificial insemination. They entered a contract that the man would not have any rights or responsibilities with respect to the child. The court struck down the contract on the basis the adults could not contract away the child’s rights and the contract was not in the child’s “best interests”. In the absence of any other “father” in the child’s life, it was in the best interests of the child that the mother’s male partner act as a father to the child.
The basic questions raised in all cases where all the attributes of parenthood do not reside in the two biological parents are whether all children (except, perhaps, those who are naturally conceived and born into an opposite-sex marriage) have, first, a right to know who their biological parents are, and, second, where possible to have some reasonable contact with them. I propose that the response to both questions should be in the affirmative, unless that is clearly contrary to the “best interests” of a particular child, and that to decide otherwise is a breach of children’s fundamental human rights.
The vast majority of us want to know through whom life travelled to us and, at the least, to “put a face” to those people. To intentionally destroy a person’s ability to know that – intentionally to make them “genetic orphans” and especially for society to be complicit in doing so – is ethically wrong.
There is enormous controversy over whether a child needs and has a right to a family structure that includes (although may not be limited to) both a mother and a father. Here again the “best interests” of the child should prevail, not the preferences of adults which would contravene those interests. In other words, we need child-centred decision-making, not adult-centred decision-making, in cases such as the Cochrane one.
Since reproductive technologies came on the scene, as both individuals and societies, we’ve faced issues unprecedented in human history with respect to children’s parentage and family structure. On the whole, adult-centred decision-making has prevailed in this regard. Using the ethical doctrine of “anticipated consent” might help to correct that bias. That doctrine requires us to ask what can we reasonably anticipate a child – for instance, Tyler Lavigne – would consent to if he or she were able to decide. Would he be likely to choose to have his biological father, Rene de Blois, in his life?
Margaret Somerville is Samuel Gale Professor of Law and Director of the McGill Centre for Medicine, Ethics & Law and is an international leader in the discussion of complex ethical questions in medicine.