Assisted Reproductive Technology and Sexed Parentage
A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting
Unsex Mothering is both provocative and persuasive. As Professor Darren Rosenblum contends, mothering should be unsexed. That said, I think that Rosenblum’s initial discussion about the role of biology in defining motherhood (and by extension parenthood generally) could be more nuanced. Enhancing this discussion would open new avenues for consideration and might ultimately make Rosenblum’s conclusions more convincing. In my comments here I will try to illustrate what that enhanced discussion might look like. Given the constraints of space, I will focus on one small point made by Rosenblum as an example of an approach that could be extended throughout this section of the article.
My own views here are shaped by my experience maintaining a blog focused exclusively on the question of who gets to be recognized (legally and socially) as a parent. Three years’ worth of experience has convinced me that there are deep divisions within our society and within the larger global community over how parenthood is and/or should be constituted. The rapid rise of assisted reproductive technology (ART) has, for the first time, allowed us to separate the genetic contribution women make to the creation of a child from the process of gestation/birth. For the first time, pregnancy and birth, a process which is thought to be uniquely female, can be isolated and assigned independently of other roles. This separation has led to new questions about the legal and social significance of each of these roles.
At the same time, the rise of ART has led to the development of vigorous (and controversial) markets for eggs, sperm, and pregnancy services. As some countries have developed restrictive rules, reproductive tourism has surged, and the markets for eggs, sperm, and surrogacy have globalized. New issues of commodification and regulation emerge weekly. ART also facilitates the development of families in an array of forms—from one-parent to two-parent (of whatever sex) to three-or-more-parent families. It invites us to consider new concepts like “intended parents” and “genetic parents” just as new family forms seek recognition of “de facto” or “functional” parents.
All of this has unsettled the law as it has unsettled our cultural images of family and parenthood. This unsettledness could be used to create space in which desexed parenthood could develop. I worry that instead, Rosenblum settles for conclusory (and possibly inaccurate) statements about who is generally accepted as a parent. I am concerned that his analysis of the admittedly outsized role biology plays is too superficial to take full advantage of the opportunity presented by the unsettledness we confront.
To pick but one point of importance here, some (and perhaps many) people assert that the real parents of a child are those who provide the gametes used to create the child. In this view, parenthood is biologically determined. Every child has two parents and only two parents, one male and one female. While there can obviously be a conservative political slant to this perspective (as you can see from the blog Family Scholars), it is advanced by a broader group of individuals, some of whom do not embrace a conservative political agenda. The ready availability of inexpensive DNA testing coupled with constantly advancing research on the significance of DNA has led to an endless stream of stories about people discovering their “real” relatives thanks to the wonders of science. These stories give rise to and reinforce the belief that genetic connections are the only real and enduring connections and that only those who are genetically related are real family. One result of this is that even as the use of third party gametes has become more widespread it has also become more controversial, particularly as claims that children created via ART must have access to the individuals who provided the gametes gain traction.
Rosenblum does not adequately consider the importance of the developing notion of genetic parenthood. For instance, he fails to distinguish between a surrogate who is pregnant with a fetus to whom she is genetically related (generally called a “traditional” surrogate) and a surrogate who is pregnant with a fetus created from someone else’s genetic material (typically called a “gestational” surrogate). Many people do consider a traditional surrogate to be the mother of a child, which leads those contemplating use of a surrogate to elect gestational surrogacy. The popularity of gestational rather than traditional surrogacy demonstrates the importance many people attach to genetic linkage.
While I have argued against genetically based parentage, it might offer an alternative direction from which to approach desexed parenting. After all, the genetic contributions men and women make to the creation of an embryo are identical—each provides one half of the needed genetic material. The two parents are identically situated. Performance of social roles has no relevance to this understanding of what makes a person a parent. Of course, many of those who support defining parenthood in terms of genetics would also advocate for rigidly defined gender/sex roles and hence would resist unsexed parenting. Indeed, they may well argue that these roles are rooted in genetics. I hardly mean to suggest that accepting a genetically based definition for parenthood leads inevitably to unsexed parenthood. But the idea of parenthood based purely on genetics is still quite new. Could this also offer a way to desex parentage or at the very least suggest new arguments in support of desexing parentage?
In general, the rise of ART has forced us to revisit long-held legal principles, creating opportunities to revisit our definitions and advance equality or desexing claims. As Rosenblum notes, historically the ground for asserting motherhood and fatherhood have been distinct. But there are some indications of an emerging trend towards greater convergence, including instances where women claim parentage by virtue of the previously men-only method of holding out.
Ultimately Rosenblum concludes that parentage is grounded in performance—that the real mother is the social mother. I dearly wish this were as clearly established as he suggests. Reality offers us a far more complicated and contested view of who gets to claim the mantle of motherhood. A more nuanced (and accurate) description of this reality would complicate his task but would ultimately enhance his argument and highlight the path to a promising future.
 Professor of Law, Seattle University School of Law.
 Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).
 See id. at 68–71.
 Julie Shapiro, Related Topics (Feb. 5, 2012), http://julieshapiro.wordpress.com/.
 It might also be prudent to acknowledge that, contrary to the goal Rosenblum sets out, few if any of the propositions at issue here can be “proved” in the ordinary sense of the word. It seems to me nearly certain that they will remain matters of contention for years to come.
 See Shapiro, supra note 3.
 Julie Shapiro, Genetics and the Extended Family, Related Topics (Jan. 24, 2012), http://julieshapiro.wordpress.com/2012/01/24/genetics-and-the-extended-family/. The media’s coverage is necessarily one-sided. Stories about people who do not seek out genetic relatives or about those who seek them out but find the resulting relationships unremarkable are unlikely to appear.
 Many people who provide eggs and sperm for assisted reproduction receive money in exchange. This leads some to object to calling them “donors.” The term “third party” avoids this problem and also includes both those receiving money and those who do not. Thus, I find it preferable.
 See, e.g. Pratten v. British Columbia, 2011 B.L.C.R. 4th 656 (Can.).
 See Rosenblum, supra note 2, at 70. Introducing surrogacy here adds unnecessary complexity. If the subject of concern in this portion of the paper is the relationship between egg production and motherhood, then considering a woman who uses a third party egg but is pregnant herself might be a simpler example. Use of a surrogate more directly pertains to questions considered in the following paragraphs of Rosenblum’s paper.
 For example, Mary Beth Whitehead, the traditional surrogate involved in the landmark Baby M case, was the legal mother of the child she gave birth to. In re Baby M, 537 A.2d 1227 (1988). The law in many states would dictate the same conclusion today.
 As an industry, ART promotes conflicting views of the importance of genetic connections. On one hand, it is commonplace to buy and sell gametes, which reflects a belief that gametes are not the defining characteristic of parentage. But at the same time, many people using ART do so to ensure a genetic connection to at least one person in a couple.
 Genetic parenthood is also obviously inhospitable to lesbian and gay couples.
 Rosenblum, supra note 2, at 77.
 Julie Shapiro, Keeping Your Eye on The Right Relationship: Another CA Lesbian Claims Holding Out Parentage, Related Topics (Jan. 25, 2012), https://julieshapiro.wordpress.com/2012/01/25/keeping-your-eye-on-the-right-relationship-another-ca-lesbian-claims-holding-out-parentage/.
 Rosenblum, supra note 2, at 70.