This week's edition of BioNews reports that a Massachusetts court has ruled that the commissioning couple in a surrogacy arrangement can be named as the parents on the birth certificate of their twins. The judges claimed that their unanimous decision was aimed at 'bringing the law in line with advances in science'.
It helped that Marla and Steven Culliton were the genetic parents of the child, which had been conceived using IVF procedures. The embryos were implanted in another woman because of a history of miscarriage by Mrs Culliton. It also helped that the surrogate did not object. In Massachusetts and most other states in the US, and in many countries, including the UK, the surrogate would ordinarily be registered as the mother.
The decision is clearly the right one to have been made, but not only for the reasons given above. The commissioning parents applied before the birth of the child to have their names recorded as the original and sole parents of the child. The way the law stood (and still stands in many places), the couple may have had to adopt their own biological child. But the Cullitons were these children's parents in more ways than biology alone can decree. They were the people who wanted a child but couldn't have one, acted upon this by commissioning a surrogate, and who had planned emotionally and financially to become parents. 'But for' them, the children would not exist, and this is the principle that the court has reflected.
Unfortunately, the court has ruled that their decision is to be an isolated one, confined to the circumstances of the particular case. This suggests that if, in future, a surrogate does change her mind, or if she is the genetic mother of the child, the outcome may be entirely different. This leaves intending parents no better off. The court has suggested that the state legislature review its laws on reproductive technology, because families relying on it face new dilemmas as yet not properly addressed. I would suggest that parentage in surrogacy is one of these dilemmas, and that the state should consider formally recognising intending parents as 'real' parents in all surrogacy arrangements.