Collaborative Family-Making: From Acquisition to Interconnection
60 Pages Posted: 6 Oct 2019
Date Written: September 11, 2019
Collaborative family-making occurs when parties who are not intended parents participate in creating and expanding families through assisted reproductive technologies (“ART”) and through adoption. Such collaboration is usually commercially driven, with fees being paid by intended parents to lawyers, intermediaries and collaborators, even if limited to expenses and lost wages. However, we also have firmly held beliefs reflected in well settled laws that people are not commodities that can be bought or sold, not in whole and not in part. Such “commodification anxiety” persists in limiting the commerciality in adoption, especially intercountry adoption (“ICA”), while markets in ART thrive in a largely unregulated setting, even the highly commercialized process of international commercial surrogacy. This dichotomy facilitates the acquisition of genetically designed babies through ART while children in need of adoption suffer and languish in institutional settings.
What is needed in order to save collaborative family-making from this ethical breakdown is a new frame of reference that avoids viewing collaborative family-making as a process of acquisition that consumes and commodifies human beings and instead humanizes collaborators through a frame of interconnection, based on openness and ongoing contact whether in the context of surrogacy or adoption. Long-standing disputes persist between adoption advocates such as Elizabeth Bartholet and the many who have come to critique ICA for the fraud, commodification and neo-colonialism involved, as well as between those who support commercial surrogacy and those who oppose it, with some specifically arguing for one method over the other. But such analyses fail to account for the ways commercial surrogacy and adoption share similar attributes and how both suffer from similar threats of commodification by using the services of the poor and the foreign to obtain their fertility goals. This article thereby offers a novel approach to both surrogacy and adoption, suggesting that while current legal frameworks fail to address concerns of commodification and dehumanization in both contexts, both methods of collaborative family-making can be ethically crafted within a legal frame of interconnection involving openness and ongoing contact among collaborators even after the “transaction.” Based on myriad empirical studies that I rely upon, such a frame of interconnection is already reflected in in domestic surrogacy and domestic adoption, where ongoing contact and openness prevail. However, international collaboration is treated differently with foreigners being dehumanized, and fraud and corruption is more endemic. I argue that openness and interconnection should frame adoption, ex-ante, domestically and abroad, and I introduce a new legal framework focused on openness and ongoing contact, which allows financial transfers and relies on government facilitation.
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