More on the Law of Parenting

Last week, I posted about a case from the Maryland Court of Appeals (the state's highest court) which ruled that a birth certificate need not identify the surrogate mother of a pair of twins, and indeed not list any mother's name. Today, the Balitmore Sun is carrying a follow-up story that asks a fair number of questions, some of which may have no answer:

Custody battles over frozen sperm and eggs. Children sired by dead men. Women giving birth to children who share none of their genes.

These are the realities of modern reproductive medicine, a rapidly evolving area of science that continues to challenge notions of parenthood.

It's murky legal ground, governed by few specific laws, with judges largely on their own to settle conflicts, and rulings that vary by court and location.

"It's really the Wild West," said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania.

And the possibilities are numerous - about 40,000 children were born through assisted reproduction in 2004, the most recent year for which statistics are available.

In one case that illustrates the new frontier, Maryland's highest court ruled last week that the birth certificates of twins need not list their surrogate mother - or any woman, for that matter - as the legal mother. Caplan and other experts say that such situations are far from rare and likely to become more complex as new reproductive techniques emerge.

By far, the most interesting class I had in law school was Bioethics. Many of the questions presented dealt with deep moral issues and our discussions largely reflected those issues as well as the relative dearth of law on the subjects. Reproductive rights and law particuarly challenged us, given that we are aware of science that CAN do amazing things, but there is very little material on what we SHOULD be doing and even less on what the state will PERMIT us to do.

In this respect, we may need to re-evaluate our law on reproductive rights. But in the meantime, judges are going to be left with little to go on but gut feelings and some vague notions developed at a time when you didn't have to wonder whether a surrogate mother needs to be listed on a birth certificate or not.