October 6, 2024 • 50 mins
My guest today is Brian Bix, the Frederick W. Thomas Professor of Law And Philosophy at the University of Minnesota School of Law. He teaches and writes in the areas of family law, contract law, and jurisprudence. He joins us today to discuss his 2023 book, Families by Agreement: Navigating Choice, Tradition, and Law, published by Cambridge University Press.
I really enjoyed this episode – it was both educational and entertaining. Brian is not only a productive scholar, but a generous one – note his discussion of other important scholars in the field during this episode, including Martha Fineman, June Carbone, Naomi Cahn, and Jody Madeira, among others.
Also interesting is the discussion with my UVA Law student co-hosts, Alexa Rothborth and Tanner Stewart. Alexa is the second donor-conceived co-host to moderate a discussion about gamete donors on the podcast. That Season 3 episode, with Mary Anne Case and co-hosted by Reidar Composano and Bryan Blaylock, is linked in the show notes below. Reidar was also donor-conceived, as he discusses in that episode roundtable.
Further Reading
- Bix Bio https://law.umn.edu/profiles/brian-bix
- Advanced Introduction to Contract Law and Theory (Edward Elgar Publishing, 2023)
- Families by Agreement: Navigating Choice, Tradition, and Law (Cambridge University Press, 2023)
- Jurisprudence: Theory and Context, (Sweet & Maxwell (UK), Carolina Academic Press (US), 1st ed., 1996; 2d ed., 1999; 3d ed., 2003; 4th ed., 2006; 5th ed., 2009; 6th ed., 2012; 7th ed., 2015; 8th ed., 2019; 9th ed., 2023; translated into Chinese (Law Press, 2007), Greek (Kritiki Publications, 2007), Spanish (Universidad Nacional Autonoma de Mexico, 2010), Italian (G. Giappichelli Editore, 2016), Portuguese (Tirant lo Blanch 2020), and Georgian (Varlam Cherkezishvili Institute, 2023)
Amazon UMN Libraries UMN Libraries
- Krawiec Bio https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
- Donorsexuality with Mary Anne Case https://tabootrades.buzzsprout.com/1227113/episodes/11655810-donorsexuality-with-mary-anne-case
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_05 (00:01):
Hey, hey, everybody.
Welcome to the Taboo Tradespodcast, a show about stuff we
aren't supposed to sell, but doanyway.
I'm your host, Kim Kravick.
If my sister glances at anythingI'm doing, she just looks at it
and she's like, this is soboring.
Why do you do
SPEAKER_01 (00:20):
this?
I'm sorry, your stuff is boring.
Let's sell ourselves intoslavery.
SPEAKER_05 (00:29):
My guest today is Brian Bix, the Frederick W.
Thomas Professor of Law andPhilosophy at the University of
Minnesota School of Law.
He teaches and writes in theareas of family law, contract
law, and jurisprudence.
He joins us today to discuss his2023 book, Families by
Agreement, Navigating ChoiceTradition and Law, published by
(00:50):
Cambridge University Press.
I really, really enjoyed thisepisode.
It was both educational andentertaining.
Brian is not only a productivescholar But a generous one.
Just listen to his discussion ofother important scholars in the
field during this episode,including Martha Fineman, June
Carbone, Naomi Kahn, and JodiMadera, among others.
(01:11):
Also interesting is thediscussion with my UVA Law
student co-hosts, AlexaRothforth and Tanner Stewart.
Alexa is the seconddonor-conceived co-host to
moderate a discussion aboutgamete donors on this podcast.
That season three episode withMarianne Case and co-hosted by
Ryder Camposano and BrianBlaylock is linked in the show
notes below.
(01:32):
Ryder was also donor conceivedas he discusses in that prior
episode roundtable.
Welcome, guys.
Thanks for joining me today.
Thanks for having us.
Glad to be here.
Why don't you start byintroducing yourselves to our
listeners?
SPEAKER_09 (01:50):
My name is Alexa Rossworth.
I'm a 3L at UVA Law.
I'm from New York.
I'm really excited to be on thepodcast and host this episode
with Tanner.
Hi,
SPEAKER_06 (01:59):
everyone.
My name is Tanner Stewart.
I'm also a 3L at the UVA Schoolof Law, and I'm from Northern
Virginia.
SPEAKER_05 (02:05):
Great.
So as you both know, we aretalking today to Professor Brian
Bix, and we are discussing hisrecent book, Families by
Agreement.
And specifically, we're going totalk to him about Chapter 5,
Agreements About Parentage.
And both of you volunteered tobe co-hosts for this episode.
What made you choose thisparticular episode that you
(02:28):
wanted to be hosts for?
Alexa, why don't we start withyou?
SPEAKER_09 (02:30):
Yeah, so I'm actually donor-conceived myself,
so...
When I saw this topic come up, Ithought it was something really
interesting and something Ihaven't really explored through
a legal lens yet.
I've obviously seen it in apersonal context and seen the
questions and reactions thatpeople have when they find out.
So I'm really interested inlearning how the law navigates
(02:51):
these questions.
SPEAKER_05 (02:52):
That's really interesting.
Before we move on to Tanner, canI just like follow up on that?
Because you are the secondstudent that we've had who was
donor conceived, who hosted anepisode on donors.
Can you talk a little bit aboutwhether you always knew that you
were donor conceived, whetheryou found out at some point how
you felt about that?
(03:13):
This was a topic of discussionin our prior episode with
Marianne Case that I want toalert listeners to.
I'll put a link to it in theshow notes.
SPEAKER_09 (03:22):
Yeah.
So I did always know.
I grew up with a single mom, butI do have a lot of past siblings
that I've discovered through thepast years through the same
donor.
So a lot of people havedifferent stories about when
they found out how they reactedto it.
I think for me, I didn't reallyhave a reaction just because I
always grew up knowing.
So it was never something thatreally bothered me or made me
(03:44):
question my identity at all.
SPEAKER_05 (03:46):
That's really interesting.
And I'll have to say, consistentwith a lot of the sociological
research on how people feelabout this is often driven by
when they found out and the wayin which they found out.
How did you find yourhalf-siblings?
Was it through, like, I forgetwhat they're called, the DNA
(04:06):
registries of various types?
SPEAKER_09 (04:09):
Yeah, so I did a DNA test when I was in high school.
I did 23andMe.
I think at that point I onlydiscovered one half-sibling who
was a few years older than me.
But during COVID, a lot ofpeople started doing them, and I
think they became a lot morepopular.
So now I think we're at about 89half-siblings, which is pretty
crazy.
SPEAKER_05 (04:27):
Really?
Really?
89.
That is interesting in and ofitself.
This was a very popular donor.
Yeah.
SPEAKER_09 (04:37):
Yeah, very popular.
So yeah, it basically started inhigh school through DNA tests,
but I think people haveconnected in different ways.
There's also a donor siblingregistry online where people are
able to communicate also.
So
SPEAKER_05 (04:52):
this is giving me then some insight into one of
your questions that you had saidyou wanted to ask Brian today,
which we'll get to.
But essentially, to cut to thechase, it's about donor
anonymity and the practicalityof that given.
Yeah.
our current capacities to do DNAtesting, which we will come back
(05:13):
to that.
Let me turn to Tanner for just aminute.
Tanner, what about you?
What prompted you to want toco-host this episode?
SPEAKER_06 (05:20):
Sure.
So my first exposure to kind ofparentage and the law was in a
trust and estates class that Itook last fall.
And we kind of were learningabout the Uniform Partnership
Act and just how the law defineswhen someone is a parent to a
child.
This was, of course, in thecontext of wills and estates,
but it kind of sparked myinterest.
And the natural progression ofthat is now looking at like the
(05:43):
surrogacy agreements and otheragreements besides adoption that
will convey and take away theseparental rights.
SPEAKER_05 (05:49):
Was that class with Professor Naomi Kahn?
SPEAKER_06 (05:52):
It was, yes.
Fantastic class to anyonelistening.
SPEAKER_05 (05:55):
In addition to being an expert in trust and estate,
she's also an expert in familylaw.
So I'm not surprised that thatclass took your interest in this
direction.
Okay, so we've talked about whyyou're both here.
Let's talk now about what youhope to get out of our
discussion with Brian.
Alexa, what about you?
(06:15):
What do you want to talk to himabout and hope that you learn
from our conversation?
SPEAKER_09 (06:19):
So this semester, I'm actually also in an IOMECON
class.
I'm taking single people in thelaw with her, which we're
learning, obviously, about howthe law really discriminates
against single people.
And it's given me a new insightinto that.
And I think Both through thatclass and this class, I really
learned about how the law favorsa two-parent household.
So I think it's reallyinteresting looking at Brian's
(06:41):
book about when a parent isallowed to basically separate
from a child legally and notclaim responsibility and when
the law allows that and thedifferent policy reasons for
that.
SPEAKER_05 (06:52):
That's interesting.
So you actually do have a numberof personal connections to the
issues that he brings up in thebook, including, as he discusses
at some length, sort of thepreference for or the
presumption, right, of twoparent families.
Tanner, what about you?
SPEAKER_06 (07:08):
Yeah, so I think a lot of people hold the family
sphere as something very sacredand very kind of immune to
government intervention.
So for this podcast, I'm reallyexcited to explore any concerns
raised by kind of allowing thecourts to come into the space
and define the duties and rightsin regards to parentage for
others.
SPEAKER_05 (07:27):
Great.
Yeah, I'm interested in what hehas to say about that, too.
So let's join the others.
Okay.
Welcome, Brian.
Thank you for joining us.
SPEAKER_01 (07:35):
Thank you so much.
It's a great honor to be here.
I'm a big fan of the podcast.
SPEAKER_05 (07:41):
I would say my mother, but my mother doesn't,
in fact, listen to the podcast.
SPEAKER_01 (07:45):
My mother and my wife used to read all my stuff,
and then they gave up.
So, you know, I just read it tomy stuffed animals.
SPEAKER_05 (07:53):
Well, okay, so let's talk about your book, Families
by Agreement.
I just wanted to start withgetting your take on sort of why
you wrote the book, what yourgoals were, and who the intended
audience was.
was what inspired you?
SPEAKER_01 (08:08):
Well, you know, I've written in this area for a long
time and having written a lot ofpieces about what I also call
private ordering and family law.
I thought it was time to try tobring them together, to try to
think about the topic in a moregeneral and sort of comparative
(08:30):
way.
And I wanted to do it in a textthat might be useful at multiple
levels that I hope is of valueto actual practitioners, a lot
of digging into the statutes andthe cases, but also that
considers the policy argumentsthat come forward and sort of
(08:52):
the moral or philosophicalissues to the extent they're
different from the policyarguments.
And I recall...
I sent the manuscript around forcomments, and one of my more
libertarian friends wrote backand said, well, of course the
agreements are enforceable.
There's nothing, you know,agreements in family law is no
different than agreements on aTuesday, right?
(09:14):
There's no particular reasonsyou'd want to treat it any
differently.
And then, you know, there areother people I sent it to, and
it's like, God, no, you can't.
You can't enforce these things.
It's family.
Yeah.
And in some ways, the book isabout trying to find a
comfortable place in betweenthose positions, that there is
(09:34):
something special aboutfamilies, that there are
concerns that we reasonably haveabout enforcing agreements in
this area, but at the same time,that if families if the area is
sufficiently regulated, if thereare sufficient safeguards, then
the real benefits of agreementsapply here as well.
SPEAKER_05 (09:56):
Thank you.
That's very helpful to thinkabout situating it between the
two extremes, both of which onesees in the literature, right?
Yeah.
Okay.
So let me turn this over toTanner and Alexa, who, as I
said, are the co-hosts thisweek, and they're going to
really run the show from here.
SPEAKER_06 (10:15):
Awesome.
Thank you again, Brian, so muchfor being here today and being
here to speak with us.
I'm leading us off with ourfirst question, so I'll just get
right into it.
So when discussing agreementsthat grant and waive parental
rights, you mentioned that theminority courts that do enforce
such agreements consider ifenforcement is in the child's
best interest.
And while that makes sense,there is also a presumption in
(10:37):
other areas of family law of adeference to parents.
parental determinations aboutthe child's welfare within
limits, things like schooling,vaccinations, other things.
Are there concerns raised byallowing the court to kind of
step into this zone of privacyand define what the child's best
interests are by choosingwhether to enforce an agreement?
And in particular, are weconcerned that this might allow
(10:59):
biases, societal or otherwise,to infect or shape
determinations that are sointegral to the family sphere?
SPEAKER_01 (11:06):
Well, you know, family law is complicated.
And there are lots of movingparts and always potentially
conflicting values andprinciples.
The one relative constantthroughout family law is best
interest of the child.
If you had to say, what is theone, you know, tort laws,
corrective justice, contractlaws, promises, what is the one
(11:29):
principle of family law?
The most consistent thing isbest interest of the child.
And while courts will regularlysay that this trumps all other
considerations, and that islargely true, but it's not
entirely true.
As you indicate, certain aspectsof parental rights and
prerogatives will trump bestinterests, at least up to a
(11:50):
point, to the point where theharm is great enough to
constitute abuse and neglect.
And it's also true for certainpolicy judgments, as when the
courts declare that they willnot take into account community
prejudice or not taking intoaccount the potential advantage
of home care over even mediocrechild care and making child
custody determinations.
(12:11):
Some theorists like Jim Dwyerbelieve that family law should
take the best interests of thechildren even more seriously
than it currently does, and thatthe task of determining best
interests should be left to apotentially interventionist
court.
But the view of the courts andmany commentators is that the
better policy is for parents, atleast at first, to be the ones
(12:32):
who determine what's in the bestinterest of the children, with
social services agencies,prosecutors, and courts as
backups only when the parentsget things badly wrong.
And if nothing else, thisapproach certainly saves our
badly overburdened family courtsfrom an onslaught of cases that
might be brought by advocatesand activists on behalf of
(12:52):
children.
Now, you talked about the biasand Family law is full of
open-ended, vague, andmulti-factor standards, which
invites bias and prejudice,unfortunately.
And family law historically hasgone back and forth between more
open-ended deference to judgesusing their best judgment and
(13:15):
creating strong presumptions andcreating guidelines and creating
standards.
And There are obvious advantagesto presumptions and guidelines
to avoid inconsistency and avoidprejudice and bias.
But especially in family law,where it's very hard to bring
child custody down to a simpleset of factors, at least to do
it fairly, we keep moving backto more discretionary standards.
(13:41):
And we just hope that we do abetter job of creating a diverse
and representative set of judgesand a competent set of appellate
courts.
SPEAKER_05 (13:51):
Brian, I just wanted to follow up on this, if it's
not too far outside of the scopeof this chapter.
Often when I talk to family lawpeople, they're quite hostile to
the best interests of the childstandard for some of the reasons
that Tanner alluded to.
And I just wanted to get yourtake on that.
Do you count yourself as amongthe people who are either a
defender or hostile to it?
(14:12):
Or I don't know, I would justlike to get your take on that if
you're willing.
I'm ambivalent,
SPEAKER_01 (14:16):
right?
So we used to have in family lawand at various times have had in
custody matters strongpresumptions, right?
There was a maternal presumptionfor at least for tender years
for the younger children.
Then we had psychologicalparents.
We had primary caregivers.
And part of the advantage ofthis is that, you know, the
(14:39):
standards were clear.
The outcomes were relativelypredictable.
I mean, part of the problemabout, if nothing else, one of
the problems about bestinterests is it means that
things are less predictable.
And you get situations whereit's often the case where one
parent, more often the mother,is very concerned.
(15:00):
This parent's primary concern isgetting custody.
They want to make sure they getcustody.
And since best interest leadssome uncertainty, they're
willing to give up a lot toavoid that uncertainty.
So I think Scott Altman, amongstothers, has also written about
this, the problem of parents,again, more often mothers and
fathers, giving up you know, alot of financial rights and
(15:22):
entitlements and propertydivision, spousal support, et
cetera, even child supportlevels in order to make sure
they got custody in a separationagreement.
So, you know, in custodymatters, I think primary
caregiver wasn't a bad idea.
If we moved off the genderedmaternal profits to a primary
caregiver or psychologicalparent, I think there were cases
(15:45):
where it would lead toproblematic results, but at
least it would avoid that sortof uncertainty.
There are other contexts where,I mean, best interest at least
gives the court a backstop,right?
A backstop from saying thingslike, no, I mean, I know this
comes up in questions later.
No, we won't let you waive yourrights to visitation and in
(16:09):
exchange for giving upobligations of their child
support because we're here toprotect the best interest of the
child.
There are other contexts where,you know, as always, discretion
depends on how you use it,right?
There's a context of openadoption, where open adoption
agreements are subject to courtapproval for the best interest
(16:29):
of the child.
And in Minnesota, the statutesays, and this is, I think, in
Washington state as well, or atleast some other states, and the
court will be willing to alterthese open adoption agreements
in the best interest of thechild.
And The problem is, again, thatthat creates unpredictable
situations.
If you get to a judge who's nota fan of open adoption, and
(16:53):
they're certainly out there,right?
You'll get cases where they'llrestrict or try to entirely end
the open adoption agreement,which the birth parents have
entered into a reliance, right?
I'm willing to give up the childbecause I've been guaranteed
ongoing contact.
If you undermine...
You know, part of the advantageof enforceable agreements is
(17:17):
that people can rely on them.
And if you have a best interestbackstop, then that creates
unpredictability.
And again, on one hand,unpredictability may make a
parent give up financial rightsto get custody.
Unpredictability may lead abirth parent not to give up a
child that they really don'twant to raise, but they do want
to stay in contact with tointended parents who might be
(17:37):
better parents or at least moreinterested parents.
So, you know, I'm deeplyambivalent, but then again, I
don't seem to have firm opinionson anything.
That makes for longer articles.
SPEAKER_05 (17:50):
Thank you.
Thanks for that answer.
SPEAKER_06 (17:51):
That's a really good point, kind of talking about how
the best interest will result indifferent outcomes on a
case-specific basis.
Next, we go to Laura, who has asimilar question about how this
best interest might be applieddifferently in practice.
SPEAKER_10 (18:05):
Hi, Brian.
Yeah, so you mentioned how wedon't allow bargaining to waive
child support in exchange forthe father not seeing the child,
for example.
So I'm curious, why do we viewsperm donors so differently?
It seems that this best interestof the child standard should
apply equally even to a singlemother who goes to a sperm bank
(18:29):
wanting to be a mother, but wetreat this case very
differently.
So I'm curious to Does this meanthat courts have determined that
the public policy in favor ofencouraging reproduction through
sperm donation outweighs thebenefits of support from the
biological father?
SPEAKER_01 (18:45):
So here is another area of conflicting or
overlapping principles.
So the starting point, as youindicate, is a preference for
the child to have two legalparents, or at least two, and to
not allow parents to waive ortrade away their parental
obligations.
At the same time, there arepeople who cannot have children
(19:08):
without the help of gametedonors.
And to encourage their use,especially in the early days
when these were being usedalmost exclusively by married
couples, the inducement to thegamete donors as well as the
intended parents was that thedonors would have neither rights
nor obligations in relation tothe resulting child.
Of course, now it's increasinglycommon for the intended parent
(19:31):
to be an unmarried singleparent.
And there's a more obvioustension between wanting to
encourage donors by assuringthem that they will have no
obligations towards the childand leaving the child with only
one legal parent.
But I mean, I'm, for what it'sworth, happy to stay with the
original bargain.
Now, we have this situation now,and the states are a little
(19:56):
complicated in this.
I talk about it elsewhere in thebook.
where, you know, especially incases of informal gamete
donation, the sperm donor andsometimes the egg donor can
remain a part of the child, canhave ongoing contact, ongoing
connections with the child, ifthe parties so choose.
And there are cases like inKansas, where the important
(20:18):
thing was the statute says youcan do this if you put it in
writing.
And then someone came to an oralagreement and didn't put it in
writing, and they then wanted toknow where their rights were,
and they went up to the stateSupreme Court, who took a year
and a half to decide, butbasically said, you know, it may
be unjust in this case, butthere's a good reason why, you
(20:40):
know, an agreement of this sortshould be in writing, and we're
going to enforce it.
But, I mean, the point is, GAMIdonors can be added to the
people who have rights andobligations.
But we're very reluctant to takeaway legal parents unless there
(21:01):
is a good reason.
And the good reason, as I said,originally was gamete donors in
the context of married couples.
The policy arguments areslightly different with single
parents, but still we believethat we would want to encourage
gamete donors who don't want tohave rights and obligations
while leaving options in contextwhere the parties do want them.
(21:22):
that have rights andobligations.
SPEAKER_09 (21:23):
Hi, Brian.
Thank you again for being herewith us today.
And thanks for the question,Laura.
I also have a question on spermdonation and the policies
surrounding that.
So in the chapter, you discusshow state laws often ensure that
sperm donors have no legalrights or obligations toward any
children resulting from theirdonation.
Another key aspect of theseagreements is the anonymity
clause, which prevents theunborn children from knowing
(21:44):
their biological father'sidentity.
How does the law approach thisaspect of the agreement,
particularly in terms oflimiting a child's ability to
discover their parentage?
And given the rise of internettools and DNA testing, how might
this legal landscape shift if ithasn't already, as it becomes
easier for donor-conceivedchildren to independently
uncover a donor's identity?
SPEAKER_01 (22:05):
I mean, to be honest, this is a developing
area where I'm not currentlyentirely fluent with all the
changing case law andlegislation.
I should first note thatanonymity with donors, as with
adoption, has never been a fullguarantee.
It's always been open to a courtto require revealing the
information if there was astrong enough reason, usually a
(22:26):
deed to get medical information.
And as you indicate, with theprevalence of genetic snooping
available through 23andMe andlike services, children of
gamete donors are increasinglyable to track down both their
donor biological parents andtheir biological siblings being
raised in other families.
(22:46):
And I should note that in theparallel world of conventional
adoption, anonymity for birthparents appears to be
disappearing.
under pressure both fromadvocacy groups and from
commentators on one hand, andthe greater availability of
genetic testing and tracing, asalready discussed.
So I think you're right.
(23:06):
I think whatever clinics try tooffer, whatever legislation
tries to offer, is beingundermined by the reality on the
ground.
SPEAKER_09 (23:16):
So I actually was donor-conceived.
So I have donor half-siblings,which I found through 23andMe.
And We also did discover theidentity of the sperm donor
through that.
So I think that was whatdefinitely prompted my question.
So do
SPEAKER_01 (23:31):
you guys get together or at least have like a
Facebook page or something?
SPEAKER_09 (23:35):
Yeah, there's an Instagram group.
I met a few of them a few yearsago.
How
SPEAKER_01 (23:41):
similar are you to your genetic siblings?
SPEAKER_09 (23:45):
I don't know if I'm that similar.
I think a lot of it's obviouslynature versus nurture, but a lot
of People look a lot alike,which is interesting, and have
similar traits.
So it's cool to see that.
SPEAKER_05 (23:56):
There's 89 of them, Brian.
Is that
SPEAKER_01 (23:59):
right, Alexa?
SPEAKER_05 (24:00):
89?
89.
SPEAKER_01 (24:00):
Yeah.
I mean, there was this articleabout the donor who had 230
genetic children.
But yeah, 89.
SPEAKER_05 (24:07):
Wow.
That's
SPEAKER_09 (24:08):
a lot.
SPEAKER_01 (24:09):
Yeah.
That's a person who must havebeen going through medical
school or something.
Engineering.
Engineering.
Okay.
Yeah.
Wow.
No, I mean, and this, of course,brings up a whole different set
of questions.
When there are that many genetichalf-siblings running around,
there are real issues aboutaccidentally dating or marrying
(24:31):
someone who you're related to.
So half the state you have toavoid.
SPEAKER_09 (24:37):
Yeah.
Well, thank you for that answer.
Thank
SPEAKER_01 (24:40):
you for sharing the information.
I think you should start workingon that article.
SPEAKER_09 (24:45):
Well, yeah, I'm looking forward to keeping an
eye on all the policy changes inthe future.
And next, we have a questionfrom Lauren.
SPEAKER_02 (24:52):
Hi, Brian.
Thank you so much for beinghere.
I'd like to continue with aquestion about genetic
privileging in the landscape ofgamete donation and surrogacy.
So egg and sperm donorcontracts, as well as
gestational surrogacy contracts,tend to be pretty heavily
favored by the law, whiletraditional surrogacy contracts
seem to be very disfavored.
But if we were to breaktraditional surrogacy into its
(25:14):
constituent parts, it's one, eggdonation, followed by two, an
agreement to carry a child toterm, the only difference being
that the carrier is also thegenetic parent of the child.
Why is a genetic connection tothe birth mother considered such
an important distinguishingfactor here, especially as the
focus has shifted from geneticsas defining parenthood to intent
and willingness to be a parentas defining parenthood?
SPEAKER_01 (25:37):
So there certainly is a greater move towards
recognition of parenthood byfunction and by intent, but
genetic parenthood is stillincredibly important.
Gamete donation is theexception, but That is due to
the strong policy in favor ofhelping out infertile couples,
(25:59):
historically, especially marriedinfertile couples.
And note that even here, therecontinues to be cases, as I
mentioned, where the gametedonor and the intended unmarried
parents do not follow all thelegislative procedures.
And there are cases where thedonor may be declared the legal
parent of the resulting child.
Even if mere genetic parenthoodis not enough on its own, let's
(26:23):
say under Lehrer v.
Robertson to allow an unmarriedfather to block an adoption,
note that it is enough to grounda child support obligation
should the mother or the stateseek it.
But you're right that there's aworld of difference in both
court decisions and legislationbetween the treatment of
traditional surrogacy andgestational surrogacy.
But note historically one littletrick.
(26:44):
I don't know how...
The case that introduced themore favorable treatment of
gestational surrogacy, Johnsonv.
Calvert, in that case was one inwhich the intended mother was in
fact also the genetic mother ofthe resulting child.
A situation which does occurfrom time to time, but which was
(27:07):
then and still is unusual ingestational surrogacy
situations.
And in the case, the CaliforniaSupreme Court emphasized the
presumption for parenthood bygenetic connection was just as
strong as the presumption basedon gestation.
And they then used intent as thetiebreaker.
(27:28):
But then in later cases, themore usual factual case where
the contest was between agestational carrier and an
intended parent who was notgenetically related, the courts,
the California courts, continuedto say intent is a standard to
be applied.
So it's interesting thatgenetics was part of the power
(27:51):
persuasion of Johnson versusCalvert, but it drops out.
SPEAKER_05 (27:56):
I had forgotten, Brian, that that was the
original facts of Johnson v.
Calvert.
I'm glad it could be of some
SPEAKER_01 (28:02):
value.
SPEAKER_06 (28:04):
Awesome.
And just a quick follow-up tothat, Brian.
I was just curious, from my ownknowledge, have the majority of
states adopted the UPA or somevariation of it?
SPEAKER_01 (28:13):
Yeah.
Again, UPA comes in many, manyflavors.
I don't know the exact numbers,but I think the majority have
adopted either the most recentversion 2023 and then the one
before is 2018 or something likethat.
I've adopted one of the two morerecent versions of the UPA.
SPEAKER_06 (28:32):
Awesome.
Thank you for that.
Next, we are going to AlyssaLawrence with a question about
when this selective enforcementof parental agreements might be
beneficial.
SPEAKER_07 (28:41):
Thanks, Tanner.
Hi, Brian.
So my question is in situationswhere the relationship between
the biological parents of achild are not amicable or ideal,
I can understand entering intoan agreement where one parent
waives their parental rightsentirely and that being the
preferred situation because theywant to be independent, can
support themselves and theirchild fully and do not want to
(29:04):
feel controlled or obligated torely on someone who does not
want the responsibility of thechild.
I would like to know youropinion on these types of
situations where a completewaiver of parental rights by
contract might be ideal for boththe child and the parent who
would like to maintain theirparental responsibility.
SPEAKER_01 (29:22):
Yes, thank you.
So as in much of the law,there's a great deal of
difference between the law andthe books and what happens in
the real world.
Family law doctrine takes a verystrong line that legal parents
have at a minimum a duty to paychild support, and they have a
right to some level of contactwith their children, and that
(29:45):
these are also in part therights of the children
themselves to be supported andto have contact with both of
their legal parents.
So for that reason, it's heldthat the parents have no power
to waive those obligations andrights or to trade them away
without the consent of thestate.
But the reality of the ground isoften different.
(30:06):
With divorced or unmarriedparents subject to court orders
of child support and visitation,a large number of non-custodial
parents are, in particularnon-custodial fathers.
These parents see their childrenless and less over time.
And simultaneously, and perhapsindependently, many child
support obligations are notfully paid or not paid at all.
(30:30):
And if the custodial parent doesnot go into court seeking
enforcement, then the couplehave in effect, even if not
expressly, even if notofficially, traded off no child
support payments for novisitation, even though if the
parents had gone in the court,the court would not allow this
to happen.
They don't allow lack ofvisitation to be a defense for
(30:54):
not paying child support, or bythe way, the other way around.
Also, my colleague, JuneCarbone, working with Kim's
colleague, Naomi Khan, havepublished books and articles
documenting and discussing theway that in poorer communities,
women often choose not to getmarried in part to control
access to children, that motherswill throw unreliable male
(31:16):
partners out of the house andraise the children without them,
and that this is accepted in thecommunity, even though if the
fathers had gone to court, thecourt would have ordered access
to the children along with childsupport.
Though in these communities, thefathers rarely do go to court,
not least because going to courtis time consuming and can be
expensive.
And a court order of childsupport will bring its own
(31:38):
risks, including potential jailtime for nonpayment.
SPEAKER_06 (31:42):
That was really interesting.
Thank you, Brian.
On a similar vein, John Henryhas a question about how some of
these factors play intoselective enforcement,
particularly notions offatherhood and motherhood.
SPEAKER_00 (31:53):
Thanks, Tanner.
Yeah, so...
Thanks, Brian.
As you outlined in your book,you map out a pattern of
selective enforcement offamilial agreements.
So some are tolerated by courts,others are not enforced.
We've discussed throughout thispodcast about the roles of
parenthood vis-a-vis the bestinterest of the child, but I
kind of want to dive into kindof the gendered aspects of this.
(32:15):
How do conceptions of motherhoodand fatherhood and the
differences between those twoconcepts affect the selective
enforcement of familialagreements across the court
cases that you cite throughoutyour book?
SPEAKER_01 (32:27):
So one area where this may well be an underlying
part of the legal and socialresponse is the new reproductive
technologies in general andsurrogacy in particular.
As Kim has written about, theattempt to regulate and cap the
payments to egg donors was oftenjustified by a commodification
argument.
(32:49):
one that should have beenequally applicable to sperm
donation, but the connection wasrarely made.
And the opposition to surrogacy,whatever its merits otherwise, I
think it's a very complicatedissue.
The opposition to surrogacyseems clearly to be tied up with
certain strong feelings aboutmotherhood and the idea that
good mothers should not give uptheir children or be encouraged
(33:11):
to do so, or to do so only as aselfless act, completely pure of
the taint of payment.
Also, as Sylvia Law pointed outbefore your time, there is much
a family law that both reflectsand reinforces a view that
mothers are deeply connectedwith their children while
fathers are uninvolved.
(33:33):
That occurs not only in theagreement context, but also
regarding the limited rights ofunmarried fathers to block
adoptions, the differing legalstandards for citizenship for
children of unmarried coupleswhere only one of the parents is
a U.S.
citizen, with differences if thecitizen parent is the father
rather than the mother.
SPEAKER_09 (33:55):
Thank you for that insight, Brian.
Next, we have a question fromNia concerning the rights of
surrogates.
SPEAKER_03 (34:01):
Hey, Brian.
Thank you for joining our classand writing such an insightful
piece.
My question is, critics ofsurrogacy arrangements disagree
with the commodification ofreproduction and argue that
allowing a surrogate's parentalrights to be waived or
transferred by contract iseffectively subordinating
women's status.
Yet most surrogates, like mostsperm and egg donors, do not
(34:21):
want the rights and obligationsof legal parents and might want
a legal standard that assignlegal parental rights to them.
To what extent, as alluded to byMartha Feynman, is the policing
of women by courts meant toperpetuate the control of
motherhood?
SPEAKER_01 (34:38):
So, thanks.
Martha Feynman's argument wasalso more general.
She argued that it seems to bejust in those areas where women
might be said to have a marketadvantage, and she included
prostitution along withsurrogacy, that market exchanges
are forbidden or sharplylimited.
And as Kim wrote about theefforts to cap the price paid
(34:59):
for egg donors, which we alreadytalked about, when part of the
justification was to reduce thehigh cost of IVF, no one had
suggested that there being anycap on the doctor's fees or the
agency fees for the process,even those fees contributed at
least as much and likely muchmore to the overall cost of IVF.
Of course, what percentage ofthe opposition to surrogacy and
(35:21):
egg donation is controllingwomen and women's sexuality?
What percentage is just what Kimmight label ingrained
repugnance?
And what percentage is genuineconcern about the
commodification of women's laborand the commodification of
children is never easy to say.
It should also be noted, ofcourse, that when the Alabama
Supreme Court earlier this yearin LePage versus the Center for
(35:43):
Reproductive Medicine used anAlabama statute to put IVF
practice at risk in that state,the response from even
conservative politicians toprotect IVF was surprisingly
strong and quick.
Of course, it's all politics.
IVF is very popular, but then soare abortion rights, and as
(36:03):
referendum after referendum hasshown.
But their conservativepoliticians are much slower to
adjust their views, perhapsbecause sexism, misogyny, and
control of female sexuality ismuch more to the forefront in
abortion than it is in IVF.
And IVF, of course, skews moreto the upper economic classes
than abortion does.
SPEAKER_05 (36:23):
Thanks for making this podcast about me, Brian.
I appreciate that.
SPEAKER_01 (36:28):
You know, it was that or a cash payment, and I'm
a little short.
SPEAKER_06 (36:34):
I myself am a little short on cash as a student, but
we'll see what we can do.
Alrighty, next we have AlyssaMarshall asking a follow-up to
Nia's question.
SPEAKER_04 (36:44):
I have a follow-up question to Nia's question and
was wondering, or a two-partquestion actually, and was
wondering, in previous classeswe have learned about nudging
and choice architecture.
And sometimes default rules maybe set to replicate what most
people would desire or wouldwant most of the time.
But sometimes they're designedin a way that they nudge people
(37:05):
towards a particular choice.
And here we appear to have adefault rule that is the
opposite of what the partieswant.
And I'm just wondering, what isthe public policy behind that
choice?
And then secondly, I'mwondering, based on what you had
said a few minutes ago, youmentioning that women kicking
men out if they're not suitable,it made me wonder, really, if
(37:26):
norms changed in society, wouldthere be more regulation and
enforcement of fatherhood thatdoes not currently exist?
Because currently, I guess I seethis trend where we make laws
and we create enforcement ofregulation based out of the
norms of society.
So how would that change things?
SPEAKER_01 (37:42):
Well, as you indicate, there's always a lot
going on with legislation.
And part of what's going on iswith legislation is sometimes
merely expressive, or maybe notmerely, it's expressive, right?
We want to express that we'reagainst this, but sometimes we
(38:03):
only go so far to express orenforce that.
And let me give you an examplefrom a very different context.
There's legislation on the booksin most jurisdictions still to
this day making adulteryillegal, but with no effort
whatsoever to have that crimecriminal law in force, and if
anyone did try to regularlyenforce it, they'd be fired.
(38:25):
The legislature just wants toexpress, as the saying goes,
that adultery is a sin andthey're against it.
Contrast both what is going onwith surrogacy in some European
countries and what's going on inabortion in parts of this
country.
In some countries, not only canone not do surrogacy, but if one
(38:47):
hires a surrogate in anothercountry, upon one's return, the
child will not be recognized asyours.
Even if the surrogate has noobjection, and even if the local
law where the surrogacy occurredfully endorsed your parenthood.
And in this country, of course,some states not only forbid
(39:10):
abortion, but threaten toprosecute anyone who seeks an
abortion in another state oranyone who helps someone to get
an abortion in another state.
In the diminishing number ofstates that oppose surrogacy,
the legislation is generallymuch weaker than that.
There's no effort to stopintended parents from, say,
hiring a surrogate inCalifornia.
And once you hire the surrogatein California, the child's born
(39:32):
in California, you will haveparental rights under California
law.
And constitutional full faithand credit and various pieces of
federal legislation willguarantee that those parental
rights will be recognized inevery other state.
And Courtney Joslin and othercommentators have pointed out
that every piece of legislationin American states on surrogacy
(39:53):
in recent years has been in thedirection of greater legal
enforcement and authorization.
And this is very different fromwhat's happening in nearly every
other country in the world,where the trend seems to be
mostly in the direction ofrestricting access and
recognition.
So, you know, the connectionbetween social norms,
(40:13):
legislation, what's actuallyenforced, the second tier and
second level of multi-staterecognition is, shall we say,
complicated.
SPEAKER_09 (40:23):
Great question, Alyssa.
And Brian, really interestingpoint on the enforcement of laws
opposing surrogacy versus thelaws opposing abortion.
Next, we have a question fromLiv about a New York law
regarding extra embryos.
SPEAKER_08 (40:35):
Hi, Brian.
Thanks so much again for joiningus today.
So kind of narrowing the focus alittle bit here, I was really
intrigued by the 2021 lawmentioned in the chapter in New
York regarding the dispositionof excess embryos.
And I'm really curious to hearany thoughts you have regarding
that requirement for each parentto consult with an independent
lawyer in that process.
(40:56):
I'd be interested in yourthoughts on kind of the wisdom
of that law, and moreimportantly, its workability and
practice, because these aremultifaceted issues.
And on the one hand, therequirement of independent
counsel can ensure that eachparty is protected.
But on the other hand, it canalso increase costs and decrease
the efficiency of theseagreements, which could be
(41:17):
disfavorable to some of theparties involved.
SPEAKER_01 (41:20):
Thank you.
So I was a little self-promotionhere.
I was the reporter for theUniform Premarital and Marital
Agreements Act.
And there's a provision in thatact requiring each party to have
the opportunity to consult withan independent attorney.
You don't actually have to havean independent attorney, but you
have to have the time and ifmaybe the resources from the
(41:44):
other party to pay for anindependent attorney.
You can waive that.
You can say, no, I don't needone.
Anyways, there's a requirementthat you have an opportunity,
financial and time-wise, toconsult with an independent
attorney.
And I think that speaking to anindependent attorney, especially
for the poorer party, the partythat's not initiating the
(42:04):
premarital agreement, makesgreat sense with those sorts of
agreements.
Because parties often have nosense of what rights they might
be waiving.
And because those parties maybe, as they say, in love, right?
And so there are boundedrationality issues.
They can't imagine that thislove will ever end or this
(42:25):
marriage will ever end.
result in divorce, and theparties might benefit from being
forced to confront the realprobability that things might
end badly and to think aboutwhat should happen then.
I don't have quite the samelevel of fears for couples
entering IVF and thinking aboutthe disposition of unused
embryos.
(42:46):
These are couples who havealready thought a lot about the
IVF process.
It's not something you do on thespur of the moment, not for that
expense.
And they're likely far enoughalong in their married or
unmarried relationships toimagine that the relationship
might end.
And thus can think fairlyclearly about what they want to
do with embryos in that case orin the case of one of them
(43:08):
dying.
Also, in general, as we'vementioned and you mentioned as
well, IVF is a very expensiveprocess already.
A significant portion of thecouples who use it are not well
off.
They'll take out loans, they'lltake out mortgages, second
mortgages, third mortgages topay for the process that having
a biological child is thatimportant to them.
(43:31):
And to add to that expense, I'mless worried about the time, but
add to that expense for whatappears to be a relatively
limited benefit, I agree doesn'tseem a benefit worth the cost.
SPEAKER_09 (43:45):
Thanks, Brian.
Next, Nia has a questionregarding courts' attempts to
enforce parental obligationmandates.
SPEAKER_03 (43:51):
In your book, you note that the courts are
reluctant to allow parents towaive their parental
responsibilities, but frequentlycourt mandates to fulfill
parental obligations, forexample, child support, as you
mentioned earlier, areneglected.
To this end, how much of thecourt's attempts at enforcing
two-parent households areunworkable in practice?
SPEAKER_01 (44:12):
So, of course, the first thing to note is the
obvious point that courts onlyrespond to the cases that are
brought to them.
And the state has neither themotivation nor the resources to
seek enforcement of more than asmall fraction of child support
orders.
Now, there's a whole very longdiscussion, Professor Tenbrook,
(44:34):
brought this up, professorsCarbone and Kahn have written
about it.
The family law that applies tothe poor is very different than
the family law that applies tothe rich.
And certain norms of family lifeare enforced and supervised with
poor communities that aren'twith other communities.
(44:55):
And as also, as we've discussedhere this morning, There are
communities which seem to havedeveloped social norms about
parenthood support andvisitation, which vary from the
official legal standards.
And to be honest, I'm notentirely sure how I feel about
that.
I understand why mothers mightbe reluctant to share parenting
(45:16):
with fathers who they perceiveto be unreliable or worse.
But I'm also concerned aboutgiving mothers, invariably not
parents, at least some of whommay not be acting for the very
best motives all the time.
I'm a little concerned aboutgiving mothers full veto rights
over father's ability to seetheir children.
(45:38):
Professor Carbone and I areworking on an article about
thinking about the possibilityof creating community mediation
centers where parties would havesome limited ability to create
agreements about theirrelationships and their parental
rights that might vary somewhatfrom the official legal
(46:00):
standard.
But I think it's complicated andit's potentially risky.
SPEAKER_06 (46:04):
Thank you, Brian.
And to close this out today,Alyssa Lawrence has one final
question.
So without further ado, pleasetake it away, Alyssa.
SPEAKER_07 (46:11):
Thank you.
So my last question, withreference to Baby M and Johnson
v.
Calvert cases, you mentionedthat many have doubts about the
fullness of the consent of thewoman who agreed to be
surrogates.
Although I do believe that, yes,in some situations, surrogacy
can be coercive, I also believethat women should be free to
(46:32):
make their own decisions abouttheir bodies and that those who
want to and or cannot havechildren of their own should be
able to make these agreements.
Moreover, I worry that thosecommitted to having children and
those committed to providingthem for a fee would find their
way to transacting even in theabsence of a safe and regulated
(46:56):
market, would commercialsurrogacy not provide a safer
and more well-regulatedfoundation for these agreements
to make sure that all partiesunderstand the risks and terms
rather than having peoplenavigate this world on their own
through informal Reddit meetupsand the like?
SPEAKER_01 (47:16):
Okay, great.
Thank you.
Before I answer the question,let me just say it's been a
wonderful honor to be on thispodcast, and these questions are
really great and press me onjust the issues that should be
pressed.
I hope all of you arevolunteering to read my next
manuscript before the book comesout.
But returning to this question,I think your view is absolutely
(47:40):
correct, and it's supported— bya lot of scholarship, including
an article by June Carbone andJody Lene Madera in the
Washington Law Review Online,that shows that professional
commercial agencies are justbetter at having safeguards and
procedures that avoid most, ofcourse, not all of the worst
(48:02):
surrogacy outcomes that comefrom informal surrogacy
arrangements.
Also, I think If you look at thelegislation in states like
Illinois, Illinois' GestationalSurrogacy Act, they do a fairly
good job of avoiding some of thedangers of coercion, fraud, and
bounded rationality, thatsurrogates must receive
(48:22):
counseling and independent legaladvice, that they're only
eligible to be surrogates ifthey've had children in the
past, that surrogacy agreementshave certain protective
provisions.
regarding insurance for thesurrogate that also covers
post-pregnancy complications andso on.
So yeah, I absolutely agree thatas in many areas, and then I
(48:43):
assume this has come upregularly in your course, the
alternative, we shouldn't assumethat if we don't authorize
something, it doesn't happen,right?
When you don't authorizesomething, it happens, but it
happens in the black market withfewer protections And, you know,
with bad choices and no goodregulations.
(49:05):
I'm not saying that everythingof all kinds should always be
legal.
But, you know, especially withcases, you know, at the border,
I think there's a lot to be saidfor legal regulation,
professionalization, supervisiongoing forward.
SPEAKER_05 (49:25):
Thanks so much, Brian.
This was fun.
SPEAKER_01 (49:27):
I enjoyed it.
SPEAKER_05 (49:29):
And you're continuing your trend of being
concise.
Look, we didn't even
SPEAKER_01 (49:32):
take the entire time.
Everyone's invited over fordonuts right afterwards.
SPEAKER_05 (49:38):
Well, thank you so much.
And thanks to our co-hosts andthanks to all of you guys for
your fabulous questions today.
It's nice to kind of have afree-flowing exchange when we
have time, which we don't alwaysbecause not everybody is as
concise as Brian.
SPEAKER_01 (49:53):
And people speak slower.
SPEAKER_05 (49:55):
Well, thank you for doing this.
We'll
SPEAKER_01 (50:00):
let you go.
It's been a great pleasure andan honor.
And you guys do a wonderful job.
And I look forward to hearingall of the podcasts except for
this one.
SPEAKER_05 (50:09):
Thanks, Ryan.
SPEAKER_01 (50:09):
I think this is going to be the best
SPEAKER_05 (50:11):
one.
It is the best one.
Hey, hey, everybody.
Welcome to the Taboo Tradespodcast, a show about stuff we
aren't supposed to sell, but doanyway.
I'm your host, Kim Kravick.
If my sister glances at anythingI'm doing, she just looks at it
and she's like, this is soboring.
Why do you do
SPEAKER_01 (00:20):
this?
I'm sorry, your stuff is boring.
Let's sell ourselves intoslavery.
SPEAKER_05 (00:29):
My guest today is Brian Bix, the Frederick W.
Thomas Professor of Law andPhilosophy at the University of
Minnesota School of Law.
He teaches and writes in theareas of family law, contract
law, and jurisprudence.
He joins us today to discuss his2023 book, Families by
Agreement, Navigating ChoiceTradition and Law, published by
(00:50):
Cambridge University Press.
I really, really enjoyed thisepisode.
It was both educational andentertaining.
Brian is not only a productivescholar But a generous one.
Just listen to his discussion ofother important scholars in the
field during this episode,including Martha Fineman, June
Carbone, Naomi Kahn, and JodiMadera, among others.
(01:11):
Also interesting is thediscussion with my UVA Law
student co-hosts, AlexaRothforth and Tanner Stewart.
Alexa is the seconddonor-conceived co-host to
moderate a discussion aboutgamete donors on this podcast.
That season three episode withMarianne Case and co-hosted by
Ryder Camposano and BrianBlaylock is linked in the show
notes below.
(01:32):
Ryder was also donor conceivedas he discusses in that prior
episode roundtable.
Welcome, guys.
Thanks for joining me today.
Thanks for having us.
Glad to be here.
Why don't you start byintroducing yourselves to our
listeners?
SPEAKER_09 (01:50):
My name is Alexa Rossworth.
I'm a 3L at UVA Law.
I'm from New York.
I'm really excited to be on thepodcast and host this episode
with Tanner.
Hi,
SPEAKER_06 (01:59):
everyone.
My name is Tanner Stewart.
I'm also a 3L at the UVA Schoolof Law, and I'm from Northern
Virginia.
SPEAKER_05 (02:05):
Great.
So as you both know, we aretalking today to Professor Brian
Bix, and we are discussing hisrecent book, Families by
Agreement.
And specifically, we're going totalk to him about Chapter 5,
Agreements About Parentage.
And both of you volunteered tobe co-hosts for this episode.
What made you choose thisparticular episode that you
(02:28):
wanted to be hosts for?
Alexa, why don't we start withyou?
SPEAKER_09 (02:30):
Yeah, so I'm actually donor-conceived myself,
so...
When I saw this topic come up, Ithought it was something really
interesting and something Ihaven't really explored through
a legal lens yet.
I've obviously seen it in apersonal context and seen the
questions and reactions thatpeople have when they find out.
So I'm really interested inlearning how the law navigates
(02:51):
these questions.
SPEAKER_05 (02:52):
That's really interesting.
Before we move on to Tanner, canI just like follow up on that?
Because you are the secondstudent that we've had who was
donor conceived, who hosted anepisode on donors.
Can you talk a little bit aboutwhether you always knew that you
were donor conceived, whetheryou found out at some point how
you felt about that?
(03:13):
This was a topic of discussionin our prior episode with
Marianne Case that I want toalert listeners to.
I'll put a link to it in theshow notes.
SPEAKER_09 (03:22):
Yeah.
So I did always know.
I grew up with a single mom, butI do have a lot of past siblings
that I've discovered through thepast years through the same
donor.
So a lot of people havedifferent stories about when
they found out how they reactedto it.
I think for me, I didn't reallyhave a reaction just because I
always grew up knowing.
So it was never something thatreally bothered me or made me
(03:44):
question my identity at all.
SPEAKER_05 (03:46):
That's really interesting.
And I'll have to say, consistentwith a lot of the sociological
research on how people feelabout this is often driven by
when they found out and the wayin which they found out.
How did you find yourhalf-siblings?
Was it through, like, I forgetwhat they're called, the DNA
(04:06):
registries of various types?
SPEAKER_09 (04:09):
Yeah, so I did a DNA test when I was in high school.
I did 23andMe.
I think at that point I onlydiscovered one half-sibling who
was a few years older than me.
But during COVID, a lot ofpeople started doing them, and I
think they became a lot morepopular.
So now I think we're at about 89half-siblings, which is pretty
crazy.
SPEAKER_05 (04:27):
Really?
Really?
89.
That is interesting in and ofitself.
This was a very popular donor.
Yeah.
SPEAKER_09 (04:37):
Yeah, very popular.
So yeah, it basically started inhigh school through DNA tests,
but I think people haveconnected in different ways.
There's also a donor siblingregistry online where people are
able to communicate also.
So
SPEAKER_05 (04:52):
this is giving me then some insight into one of
your questions that you had saidyou wanted to ask Brian today,
which we'll get to.
But essentially, to cut to thechase, it's about donor
anonymity and the practicalityof that given.
Yeah.
our current capacities to do DNAtesting, which we will come back
(05:13):
to that.
Let me turn to Tanner for just aminute.
Tanner, what about you?
What prompted you to want toco-host this episode?
SPEAKER_06 (05:20):
Sure.
So my first exposure to kind ofparentage and the law was in a
trust and estates class that Itook last fall.
And we kind of were learningabout the Uniform Partnership
Act and just how the law defineswhen someone is a parent to a
child.
This was, of course, in thecontext of wills and estates,
but it kind of sparked myinterest.
And the natural progression ofthat is now looking at like the
(05:43):
surrogacy agreements and otheragreements besides adoption that
will convey and take away theseparental rights.
SPEAKER_05 (05:49):
Was that class with Professor Naomi Kahn?
SPEAKER_06 (05:52):
It was, yes.
Fantastic class to anyonelistening.
SPEAKER_05 (05:55):
In addition to being an expert in trust and estate,
she's also an expert in familylaw.
So I'm not surprised that thatclass took your interest in this
direction.
Okay, so we've talked about whyyou're both here.
Let's talk now about what youhope to get out of our
discussion with Brian.
Alexa, what about you?
(06:15):
What do you want to talk to himabout and hope that you learn
from our conversation?
SPEAKER_09 (06:19):
So this semester, I'm actually also in an IOMECON
class.
I'm taking single people in thelaw with her, which we're
learning, obviously, about howthe law really discriminates
against single people.
And it's given me a new insightinto that.
And I think Both through thatclass and this class, I really
learned about how the law favorsa two-parent household.
So I think it's reallyinteresting looking at Brian's
(06:41):
book about when a parent isallowed to basically separate
from a child legally and notclaim responsibility and when
the law allows that and thedifferent policy reasons for
that.
SPEAKER_05 (06:52):
That's interesting.
So you actually do have a numberof personal connections to the
issues that he brings up in thebook, including, as he discusses
at some length, sort of thepreference for or the
presumption, right, of twoparent families.
Tanner, what about you?
SPEAKER_06 (07:08):
Yeah, so I think a lot of people hold the family
sphere as something very sacredand very kind of immune to
government intervention.
So for this podcast, I'm reallyexcited to explore any concerns
raised by kind of allowing thecourts to come into the space
and define the duties and rightsin regards to parentage for
others.
SPEAKER_05 (07:27):
Great.
Yeah, I'm interested in what hehas to say about that, too.
So let's join the others.
Okay.
Welcome, Brian.
Thank you for joining us.
SPEAKER_01 (07:35):
Thank you so much.
It's a great honor to be here.
I'm a big fan of the podcast.
SPEAKER_05 (07:41):
I would say my mother, but my mother doesn't,
in fact, listen to the podcast.
SPEAKER_01 (07:45):
My mother and my wife used to read all my stuff,
and then they gave up.
So, you know, I just read it tomy stuffed animals.
SPEAKER_05 (07:53):
Well, okay, so let's talk about your book, Families
by Agreement.
I just wanted to start withgetting your take on sort of why
you wrote the book, what yourgoals were, and who the intended
audience was.
was what inspired you?
SPEAKER_01 (08:08):
Well, you know, I've written in this area for a long
time and having written a lot ofpieces about what I also call
private ordering and family law.
I thought it was time to try tobring them together, to try to
think about the topic in a moregeneral and sort of comparative
(08:30):
way.
And I wanted to do it in a textthat might be useful at multiple
levels that I hope is of valueto actual practitioners, a lot
of digging into the statutes andthe cases, but also that
considers the policy argumentsthat come forward and sort of
(08:52):
the moral or philosophicalissues to the extent they're
different from the policyarguments.
And I recall...
I sent the manuscript around forcomments, and one of my more
libertarian friends wrote backand said, well, of course the
agreements are enforceable.
There's nothing, you know,agreements in family law is no
different than agreements on aTuesday, right?
(09:14):
There's no particular reasonsyou'd want to treat it any
differently.
And then, you know, there areother people I sent it to, and
it's like, God, no, you can't.
You can't enforce these things.
It's family.
Yeah.
And in some ways, the book isabout trying to find a
comfortable place in betweenthose positions, that there is
(09:34):
something special aboutfamilies, that there are
concerns that we reasonably haveabout enforcing agreements in
this area, but at the same time,that if families if the area is
sufficiently regulated, if thereare sufficient safeguards, then
the real benefits of agreementsapply here as well.
SPEAKER_05 (09:56):
Thank you.
That's very helpful to thinkabout situating it between the
two extremes, both of which onesees in the literature, right?
Yeah.
Okay.
So let me turn this over toTanner and Alexa, who, as I
said, are the co-hosts thisweek, and they're going to
really run the show from here.
SPEAKER_06 (10:15):
Awesome.
Thank you again, Brian, so muchfor being here today and being
here to speak with us.
I'm leading us off with ourfirst question, so I'll just get
right into it.
So when discussing agreementsthat grant and waive parental
rights, you mentioned that theminority courts that do enforce
such agreements consider ifenforcement is in the child's
best interest.
And while that makes sense,there is also a presumption in
(10:37):
other areas of family law of adeference to parents.
parental determinations aboutthe child's welfare within
limits, things like schooling,vaccinations, other things.
Are there concerns raised byallowing the court to kind of
step into this zone of privacyand define what the child's best
interests are by choosingwhether to enforce an agreement?
And in particular, are weconcerned that this might allow
(10:59):
biases, societal or otherwise,to infect or shape
determinations that are sointegral to the family sphere?
SPEAKER_01 (11:06):
Well, you know, family law is complicated.
And there are lots of movingparts and always potentially
conflicting values andprinciples.
The one relative constantthroughout family law is best
interest of the child.
If you had to say, what is theone, you know, tort laws,
corrective justice, contractlaws, promises, what is the one
(11:29):
principle of family law?
The most consistent thing isbest interest of the child.
And while courts will regularlysay that this trumps all other
considerations, and that islargely true, but it's not
entirely true.
As you indicate, certain aspectsof parental rights and
prerogatives will trump bestinterests, at least up to a
(11:50):
point, to the point where theharm is great enough to
constitute abuse and neglect.
And it's also true for certainpolicy judgments, as when the
courts declare that they willnot take into account community
prejudice or not taking intoaccount the potential advantage
of home care over even mediocrechild care and making child
custody determinations.
(12:11):
Some theorists like Jim Dwyerbelieve that family law should
take the best interests of thechildren even more seriously
than it currently does, and thatthe task of determining best
interests should be left to apotentially interventionist
court.
But the view of the courts andmany commentators is that the
better policy is for parents, atleast at first, to be the ones
(12:32):
who determine what's in the bestinterest of the children, with
social services agencies,prosecutors, and courts as
backups only when the parentsget things badly wrong.
And if nothing else, thisapproach certainly saves our
badly overburdened family courtsfrom an onslaught of cases that
might be brought by advocatesand activists on behalf of
(12:52):
children.
Now, you talked about the biasand Family law is full of
open-ended, vague, andmulti-factor standards, which
invites bias and prejudice,unfortunately.
And family law historically hasgone back and forth between more
open-ended deference to judgesusing their best judgment and
(13:15):
creating strong presumptions andcreating guidelines and creating
standards.
And There are obvious advantagesto presumptions and guidelines
to avoid inconsistency and avoidprejudice and bias.
But especially in family law,where it's very hard to bring
child custody down to a simpleset of factors, at least to do
it fairly, we keep moving backto more discretionary standards.
(13:41):
And we just hope that we do abetter job of creating a diverse
and representative set of judgesand a competent set of appellate
courts.
SPEAKER_05 (13:51):
Brian, I just wanted to follow up on this, if it's
not too far outside of the scopeof this chapter.
Often when I talk to family lawpeople, they're quite hostile to
the best interests of the childstandard for some of the reasons
that Tanner alluded to.
And I just wanted to get yourtake on that.
Do you count yourself as amongthe people who are either a
defender or hostile to it?
(14:12):
Or I don't know, I would justlike to get your take on that if
you're willing.
I'm ambivalent,
SPEAKER_01 (14:16):
right?
So we used to have in family lawand at various times have had in
custody matters strongpresumptions, right?
There was a maternal presumptionfor at least for tender years
for the younger children.
Then we had psychologicalparents.
We had primary caregivers.
And part of the advantage ofthis is that, you know, the
(14:39):
standards were clear.
The outcomes were relativelypredictable.
I mean, part of the problemabout, if nothing else, one of
the problems about bestinterests is it means that
things are less predictable.
And you get situations whereit's often the case where one
parent, more often the mother,is very concerned.
(15:00):
This parent's primary concern isgetting custody.
They want to make sure they getcustody.
And since best interest leadssome uncertainty, they're
willing to give up a lot toavoid that uncertainty.
So I think Scott Altman, amongstothers, has also written about
this, the problem of parents,again, more often mothers and
fathers, giving up you know, alot of financial rights and
(15:22):
entitlements and propertydivision, spousal support, et
cetera, even child supportlevels in order to make sure
they got custody in a separationagreement.
So, you know, in custodymatters, I think primary
caregiver wasn't a bad idea.
If we moved off the genderedmaternal profits to a primary
caregiver or psychologicalparent, I think there were cases
(15:45):
where it would lead toproblematic results, but at
least it would avoid that sortof uncertainty.
There are other contexts where,I mean, best interest at least
gives the court a backstop,right?
A backstop from saying thingslike, no, I mean, I know this
comes up in questions later.
No, we won't let you waive yourrights to visitation and in
(16:09):
exchange for giving upobligations of their child
support because we're here toprotect the best interest of the
child.
There are other contexts where,you know, as always, discretion
depends on how you use it,right?
There's a context of openadoption, where open adoption
agreements are subject to courtapproval for the best interest
(16:29):
of the child.
And in Minnesota, the statutesays, and this is, I think, in
Washington state as well, or atleast some other states, and the
court will be willing to alterthese open adoption agreements
in the best interest of thechild.
And The problem is, again, thatthat creates unpredictable
situations.
If you get to a judge who's nota fan of open adoption, and
(16:53):
they're certainly out there,right?
You'll get cases where they'llrestrict or try to entirely end
the open adoption agreement,which the birth parents have
entered into a reliance, right?
I'm willing to give up the childbecause I've been guaranteed
ongoing contact.
If you undermine...
You know, part of the advantageof enforceable agreements is
(17:17):
that people can rely on them.
And if you have a best interestbackstop, then that creates
unpredictability.
And again, on one hand,unpredictability may make a
parent give up financial rightsto get custody.
Unpredictability may lead abirth parent not to give up a
child that they really don'twant to raise, but they do want
to stay in contact with tointended parents who might be
(17:37):
better parents or at least moreinterested parents.
So, you know, I'm deeplyambivalent, but then again, I
don't seem to have firm opinionson anything.
That makes for longer articles.
SPEAKER_05 (17:50):
Thank you.
Thanks for that answer.
SPEAKER_06 (17:51):
That's a really good point, kind of talking about how
the best interest will result indifferent outcomes on a
case-specific basis.
Next, we go to Laura, who has asimilar question about how this
best interest might be applieddifferently in practice.
SPEAKER_10 (18:05):
Hi, Brian.
Yeah, so you mentioned how wedon't allow bargaining to waive
child support in exchange forthe father not seeing the child,
for example.
So I'm curious, why do we viewsperm donors so differently?
It seems that this best interestof the child standard should
apply equally even to a singlemother who goes to a sperm bank
(18:29):
wanting to be a mother, but wetreat this case very
differently.
So I'm curious to Does this meanthat courts have determined that
the public policy in favor ofencouraging reproduction through
sperm donation outweighs thebenefits of support from the
biological father?
SPEAKER_01 (18:45):
So here is another area of conflicting or
overlapping principles.
So the starting point, as youindicate, is a preference for
the child to have two legalparents, or at least two, and to
not allow parents to waive ortrade away their parental
obligations.
At the same time, there arepeople who cannot have children
(19:08):
without the help of gametedonors.
And to encourage their use,especially in the early days
when these were being usedalmost exclusively by married
couples, the inducement to thegamete donors as well as the
intended parents was that thedonors would have neither rights
nor obligations in relation tothe resulting child.
Of course, now it's increasinglycommon for the intended parent
(19:31):
to be an unmarried singleparent.
And there's a more obvioustension between wanting to
encourage donors by assuringthem that they will have no
obligations towards the childand leaving the child with only
one legal parent.
But I mean, I'm, for what it'sworth, happy to stay with the
original bargain.
Now, we have this situation now,and the states are a little
(19:56):
complicated in this.
I talk about it elsewhere in thebook.
where, you know, especially incases of informal gamete
donation, the sperm donor andsometimes the egg donor can
remain a part of the child, canhave ongoing contact, ongoing
connections with the child, ifthe parties so choose.
And there are cases like inKansas, where the important
(20:18):
thing was the statute says youcan do this if you put it in
writing.
And then someone came to an oralagreement and didn't put it in
writing, and they then wanted toknow where their rights were,
and they went up to the stateSupreme Court, who took a year
and a half to decide, butbasically said, you know, it may
be unjust in this case, butthere's a good reason why, you
(20:40):
know, an agreement of this sortshould be in writing, and we're
going to enforce it.
But, I mean, the point is, GAMIdonors can be added to the
people who have rights andobligations.
But we're very reluctant to takeaway legal parents unless there
(21:01):
is a good reason.
And the good reason, as I said,originally was gamete donors in
the context of married couples.
The policy arguments areslightly different with single
parents, but still we believethat we would want to encourage
gamete donors who don't want tohave rights and obligations
while leaving options in contextwhere the parties do want them.
(21:22):
that have rights andobligations.
SPEAKER_09 (21:23):
Hi, Brian.
Thank you again for being herewith us today.
And thanks for the question,Laura.
I also have a question on spermdonation and the policies
surrounding that.
So in the chapter, you discusshow state laws often ensure that
sperm donors have no legalrights or obligations toward any
children resulting from theirdonation.
Another key aspect of theseagreements is the anonymity
clause, which prevents theunborn children from knowing
(21:44):
their biological father'sidentity.
How does the law approach thisaspect of the agreement,
particularly in terms oflimiting a child's ability to
discover their parentage?
And given the rise of internettools and DNA testing, how might
this legal landscape shift if ithasn't already, as it becomes
easier for donor-conceivedchildren to independently
uncover a donor's identity?
SPEAKER_01 (22:05):
I mean, to be honest, this is a developing
area where I'm not currentlyentirely fluent with all the
changing case law andlegislation.
I should first note thatanonymity with donors, as with
adoption, has never been a fullguarantee.
It's always been open to a courtto require revealing the
information if there was astrong enough reason, usually a
(22:26):
deed to get medical information.
And as you indicate, with theprevalence of genetic snooping
available through 23andMe andlike services, children of
gamete donors are increasinglyable to track down both their
donor biological parents andtheir biological siblings being
raised in other families.
(22:46):
And I should note that in theparallel world of conventional
adoption, anonymity for birthparents appears to be
disappearing.
under pressure both fromadvocacy groups and from
commentators on one hand, andthe greater availability of
genetic testing and tracing, asalready discussed.
So I think you're right.
(23:06):
I think whatever clinics try tooffer, whatever legislation
tries to offer, is beingundermined by the reality on the
ground.
SPEAKER_09 (23:16):
So I actually was donor-conceived.
So I have donor half-siblings,which I found through 23andMe.
And We also did discover theidentity of the sperm donor
through that.
So I think that was whatdefinitely prompted my question.
So do
SPEAKER_01 (23:31):
you guys get together or at least have like a
Facebook page or something?
SPEAKER_09 (23:35):
Yeah, there's an Instagram group.
I met a few of them a few yearsago.
How
SPEAKER_01 (23:41):
similar are you to your genetic siblings?
SPEAKER_09 (23:45):
I don't know if I'm that similar.
I think a lot of it's obviouslynature versus nurture, but a lot
of People look a lot alike,which is interesting, and have
similar traits.
So it's cool to see that.
SPEAKER_05 (23:56):
There's 89 of them, Brian.
Is that
SPEAKER_01 (23:59):
right, Alexa?
SPEAKER_05 (24:00):
89?
89.
SPEAKER_01 (24:00):
Yeah.
I mean, there was this articleabout the donor who had 230
genetic children.
But yeah, 89.
SPEAKER_05 (24:07):
Wow.
That's
SPEAKER_09 (24:08):
a lot.
SPEAKER_01 (24:09):
Yeah.
That's a person who must havebeen going through medical
school or something.
Engineering.
Engineering.
Okay.
Yeah.
Wow.
No, I mean, and this, of course,brings up a whole different set
of questions.
When there are that many genetichalf-siblings running around,
there are real issues aboutaccidentally dating or marrying
(24:31):
someone who you're related to.
So half the state you have toavoid.
SPEAKER_09 (24:37):
Yeah.
Well, thank you for that answer.
Thank
SPEAKER_01 (24:40):
you for sharing the information.
I think you should start workingon that article.
SPEAKER_09 (24:45):
Well, yeah, I'm looking forward to keeping an
eye on all the policy changes inthe future.
And next, we have a questionfrom Lauren.
SPEAKER_02 (24:52):
Hi, Brian.
Thank you so much for beinghere.
I'd like to continue with aquestion about genetic
privileging in the landscape ofgamete donation and surrogacy.
So egg and sperm donorcontracts, as well as
gestational surrogacy contracts,tend to be pretty heavily
favored by the law, whiletraditional surrogacy contracts
seem to be very disfavored.
But if we were to breaktraditional surrogacy into its
(25:14):
constituent parts, it's one, eggdonation, followed by two, an
agreement to carry a child toterm, the only difference being
that the carrier is also thegenetic parent of the child.
Why is a genetic connection tothe birth mother considered such
an important distinguishingfactor here, especially as the
focus has shifted from geneticsas defining parenthood to intent
and willingness to be a parentas defining parenthood?
SPEAKER_01 (25:37):
So there certainly is a greater move towards
recognition of parenthood byfunction and by intent, but
genetic parenthood is stillincredibly important.
Gamete donation is theexception, but That is due to
the strong policy in favor ofhelping out infertile couples,
(25:59):
historically, especially marriedinfertile couples.
And note that even here, therecontinues to be cases, as I
mentioned, where the gametedonor and the intended unmarried
parents do not follow all thelegislative procedures.
And there are cases where thedonor may be declared the legal
parent of the resulting child.
Even if mere genetic parenthoodis not enough on its own, let's
(26:23):
say under Lehrer v.
Robertson to allow an unmarriedfather to block an adoption,
note that it is enough to grounda child support obligation
should the mother or the stateseek it.
But you're right that there's aworld of difference in both
court decisions and legislationbetween the treatment of
traditional surrogacy andgestational surrogacy.
But note historically one littletrick.
(26:44):
I don't know how...
The case that introduced themore favorable treatment of
gestational surrogacy, Johnsonv.
Calvert, in that case was one inwhich the intended mother was in
fact also the genetic mother ofthe resulting child.
A situation which does occurfrom time to time, but which was
(27:07):
then and still is unusual ingestational surrogacy
situations.
And in the case, the CaliforniaSupreme Court emphasized the
presumption for parenthood bygenetic connection was just as
strong as the presumption basedon gestation.
And they then used intent as thetiebreaker.
(27:28):
But then in later cases, themore usual factual case where
the contest was between agestational carrier and an
intended parent who was notgenetically related, the courts,
the California courts, continuedto say intent is a standard to
be applied.
So it's interesting thatgenetics was part of the power
(27:51):
persuasion of Johnson versusCalvert, but it drops out.
SPEAKER_05 (27:56):
I had forgotten, Brian, that that was the
original facts of Johnson v.
Calvert.
I'm glad it could be of some
SPEAKER_01 (28:02):
value.
SPEAKER_06 (28:04):
Awesome.
And just a quick follow-up tothat, Brian.
I was just curious, from my ownknowledge, have the majority of
states adopted the UPA or somevariation of it?
SPEAKER_01 (28:13):
Yeah.
Again, UPA comes in many, manyflavors.
I don't know the exact numbers,but I think the majority have
adopted either the most recentversion 2023 and then the one
before is 2018 or something likethat.
I've adopted one of the two morerecent versions of the UPA.
SPEAKER_06 (28:32):
Awesome.
Thank you for that.
Next, we are going to AlyssaLawrence with a question about
when this selective enforcementof parental agreements might be
beneficial.
SPEAKER_07 (28:41):
Thanks, Tanner.
Hi, Brian.
So my question is in situationswhere the relationship between
the biological parents of achild are not amicable or ideal,
I can understand entering intoan agreement where one parent
waives their parental rightsentirely and that being the
preferred situation because theywant to be independent, can
support themselves and theirchild fully and do not want to
(29:04):
feel controlled or obligated torely on someone who does not
want the responsibility of thechild.
I would like to know youropinion on these types of
situations where a completewaiver of parental rights by
contract might be ideal for boththe child and the parent who
would like to maintain theirparental responsibility.
SPEAKER_01 (29:22):
Yes, thank you.
So as in much of the law,there's a great deal of
difference between the law andthe books and what happens in
the real world.
Family law doctrine takes a verystrong line that legal parents
have at a minimum a duty to paychild support, and they have a
right to some level of contactwith their children, and that
(29:45):
these are also in part therights of the children
themselves to be supported andto have contact with both of
their legal parents.
So for that reason, it's heldthat the parents have no power
to waive those obligations andrights or to trade them away
without the consent of thestate.
But the reality of the ground isoften different.
(30:06):
With divorced or unmarriedparents subject to court orders
of child support and visitation,a large number of non-custodial
parents are, in particularnon-custodial fathers.
These parents see their childrenless and less over time.
And simultaneously, and perhapsindependently, many child
support obligations are notfully paid or not paid at all.
(30:30):
And if the custodial parent doesnot go into court seeking
enforcement, then the couplehave in effect, even if not
expressly, even if notofficially, traded off no child
support payments for novisitation, even though if the
parents had gone in the court,the court would not allow this
to happen.
They don't allow lack ofvisitation to be a defense for
(30:54):
not paying child support, or bythe way, the other way around.
Also, my colleague, JuneCarbone, working with Kim's
colleague, Naomi Khan, havepublished books and articles
documenting and discussing theway that in poorer communities,
women often choose not to getmarried in part to control
access to children, that motherswill throw unreliable male
(31:16):
partners out of the house andraise the children without them,
and that this is accepted in thecommunity, even though if the
fathers had gone to court, thecourt would have ordered access
to the children along with childsupport.
Though in these communities, thefathers rarely do go to court,
not least because going to courtis time consuming and can be
expensive.
And a court order of childsupport will bring its own
(31:38):
risks, including potential jailtime for nonpayment.
SPEAKER_06 (31:42):
That was really interesting.
Thank you, Brian.
On a similar vein, John Henryhas a question about how some of
these factors play intoselective enforcement,
particularly notions offatherhood and motherhood.
SPEAKER_00 (31:53):
Thanks, Tanner.
Yeah, so...
Thanks, Brian.
As you outlined in your book,you map out a pattern of
selective enforcement offamilial agreements.
So some are tolerated by courts,others are not enforced.
We've discussed throughout thispodcast about the roles of
parenthood vis-a-vis the bestinterest of the child, but I
kind of want to dive into kindof the gendered aspects of this.
(32:15):
How do conceptions of motherhoodand fatherhood and the
differences between those twoconcepts affect the selective
enforcement of familialagreements across the court
cases that you cite throughoutyour book?
SPEAKER_01 (32:27):
So one area where this may well be an underlying
part of the legal and socialresponse is the new reproductive
technologies in general andsurrogacy in particular.
As Kim has written about, theattempt to regulate and cap the
payments to egg donors was oftenjustified by a commodification
argument.
(32:49):
one that should have beenequally applicable to sperm
donation, but the connection wasrarely made.
And the opposition to surrogacy,whatever its merits otherwise, I
think it's a very complicatedissue.
The opposition to surrogacyseems clearly to be tied up with
certain strong feelings aboutmotherhood and the idea that
good mothers should not give uptheir children or be encouraged
(33:11):
to do so, or to do so only as aselfless act, completely pure of
the taint of payment.
Also, as Sylvia Law pointed outbefore your time, there is much
a family law that both reflectsand reinforces a view that
mothers are deeply connectedwith their children while
fathers are uninvolved.
(33:33):
That occurs not only in theagreement context, but also
regarding the limited rights ofunmarried fathers to block
adoptions, the differing legalstandards for citizenship for
children of unmarried coupleswhere only one of the parents is
a U.S.
citizen, with differences if thecitizen parent is the father
rather than the mother.
SPEAKER_09 (33:55):
Thank you for that insight, Brian.
Next, we have a question fromNia concerning the rights of
surrogates.
SPEAKER_03 (34:01):
Hey, Brian.
Thank you for joining our classand writing such an insightful
piece.
My question is, critics ofsurrogacy arrangements disagree
with the commodification ofreproduction and argue that
allowing a surrogate's parentalrights to be waived or
transferred by contract iseffectively subordinating
women's status.
Yet most surrogates, like mostsperm and egg donors, do not
(34:21):
want the rights and obligationsof legal parents and might want
a legal standard that assignlegal parental rights to them.
To what extent, as alluded to byMartha Feynman, is the policing
of women by courts meant toperpetuate the control of
motherhood?
SPEAKER_01 (34:38):
So, thanks.
Martha Feynman's argument wasalso more general.
She argued that it seems to bejust in those areas where women
might be said to have a marketadvantage, and she included
prostitution along withsurrogacy, that market exchanges
are forbidden or sharplylimited.
And as Kim wrote about theefforts to cap the price paid
(34:59):
for egg donors, which we alreadytalked about, when part of the
justification was to reduce thehigh cost of IVF, no one had
suggested that there being anycap on the doctor's fees or the
agency fees for the process,even those fees contributed at
least as much and likely muchmore to the overall cost of IVF.
Of course, what percentage ofthe opposition to surrogacy and
(35:21):
egg donation is controllingwomen and women's sexuality?
What percentage is just what Kimmight label ingrained
repugnance?
And what percentage is genuineconcern about the
commodification of women's laborand the commodification of
children is never easy to say.
It should also be noted, ofcourse, that when the Alabama
Supreme Court earlier this yearin LePage versus the Center for
(35:43):
Reproductive Medicine used anAlabama statute to put IVF
practice at risk in that state,the response from even
conservative politicians toprotect IVF was surprisingly
strong and quick.
Of course, it's all politics.
IVF is very popular, but then soare abortion rights, and as
(36:03):
referendum after referendum hasshown.
But their conservativepoliticians are much slower to
adjust their views, perhapsbecause sexism, misogyny, and
control of female sexuality ismuch more to the forefront in
abortion than it is in IVF.
And IVF, of course, skews moreto the upper economic classes
than abortion does.
SPEAKER_05 (36:23):
Thanks for making this podcast about me, Brian.
I appreciate that.
SPEAKER_01 (36:28):
You know, it was that or a cash payment, and I'm
a little short.
SPEAKER_06 (36:34):
I myself am a little short on cash as a student, but
we'll see what we can do.
Alrighty, next we have AlyssaMarshall asking a follow-up to
Nia's question.
SPEAKER_04 (36:44):
I have a follow-up question to Nia's question and
was wondering, or a two-partquestion actually, and was
wondering, in previous classeswe have learned about nudging
and choice architecture.
And sometimes default rules maybe set to replicate what most
people would desire or wouldwant most of the time.
But sometimes they're designedin a way that they nudge people
(37:05):
towards a particular choice.
And here we appear to have adefault rule that is the
opposite of what the partieswant.
And I'm just wondering, what isthe public policy behind that
choice?
And then secondly, I'mwondering, based on what you had
said a few minutes ago, youmentioning that women kicking
men out if they're not suitable,it made me wonder, really, if
(37:26):
norms changed in society, wouldthere be more regulation and
enforcement of fatherhood thatdoes not currently exist?
Because currently, I guess I seethis trend where we make laws
and we create enforcement ofregulation based out of the
norms of society.
So how would that change things?
SPEAKER_01 (37:42):
Well, as you indicate, there's always a lot
going on with legislation.
And part of what's going on iswith legislation is sometimes
merely expressive, or maybe notmerely, it's expressive, right?
We want to express that we'reagainst this, but sometimes we
(38:03):
only go so far to express orenforce that.
And let me give you an examplefrom a very different context.
There's legislation on the booksin most jurisdictions still to
this day making adulteryillegal, but with no effort
whatsoever to have that crimecriminal law in force, and if
anyone did try to regularlyenforce it, they'd be fired.
(38:25):
The legislature just wants toexpress, as the saying goes,
that adultery is a sin andthey're against it.
Contrast both what is going onwith surrogacy in some European
countries and what's going on inabortion in parts of this
country.
In some countries, not only canone not do surrogacy, but if one
(38:47):
hires a surrogate in anothercountry, upon one's return, the
child will not be recognized asyours.
Even if the surrogate has noobjection, and even if the local
law where the surrogacy occurredfully endorsed your parenthood.
And in this country, of course,some states not only forbid
(39:10):
abortion, but threaten toprosecute anyone who seeks an
abortion in another state oranyone who helps someone to get
an abortion in another state.
In the diminishing number ofstates that oppose surrogacy,
the legislation is generallymuch weaker than that.
There's no effort to stopintended parents from, say,
hiring a surrogate inCalifornia.
And once you hire the surrogatein California, the child's born
(39:32):
in California, you will haveparental rights under California
law.
And constitutional full faithand credit and various pieces of
federal legislation willguarantee that those parental
rights will be recognized inevery other state.
And Courtney Joslin and othercommentators have pointed out
that every piece of legislationin American states on surrogacy
(39:53):
in recent years has been in thedirection of greater legal
enforcement and authorization.
And this is very different fromwhat's happening in nearly every
other country in the world,where the trend seems to be
mostly in the direction ofrestricting access and
recognition.
So, you know, the connectionbetween social norms,
(40:13):
legislation, what's actuallyenforced, the second tier and
second level of multi-staterecognition is, shall we say,
complicated.
SPEAKER_09 (40:23):
Great question, Alyssa.
And Brian, really interestingpoint on the enforcement of laws
opposing surrogacy versus thelaws opposing abortion.
Next, we have a question fromLiv about a New York law
regarding extra embryos.
SPEAKER_08 (40:35):
Hi, Brian.
Thanks so much again for joiningus today.
So kind of narrowing the focus alittle bit here, I was really
intrigued by the 2021 lawmentioned in the chapter in New
York regarding the dispositionof excess embryos.
And I'm really curious to hearany thoughts you have regarding
that requirement for each parentto consult with an independent
lawyer in that process.
(40:56):
I'd be interested in yourthoughts on kind of the wisdom
of that law, and moreimportantly, its workability and
practice, because these aremultifaceted issues.
And on the one hand, therequirement of independent
counsel can ensure that eachparty is protected.
But on the other hand, it canalso increase costs and decrease
the efficiency of theseagreements, which could be
(41:17):
disfavorable to some of theparties involved.
SPEAKER_01 (41:20):
Thank you.
So I was a little self-promotionhere.
I was the reporter for theUniform Premarital and Marital
Agreements Act.
And there's a provision in thatact requiring each party to have
the opportunity to consult withan independent attorney.
You don't actually have to havean independent attorney, but you
have to have the time and ifmaybe the resources from the
(41:44):
other party to pay for anindependent attorney.
You can waive that.
You can say, no, I don't needone.
Anyways, there's a requirementthat you have an opportunity,
financial and time-wise, toconsult with an independent
attorney.
And I think that speaking to anindependent attorney, especially
for the poorer party, the partythat's not initiating the
(42:04):
premarital agreement, makesgreat sense with those sorts of
agreements.
Because parties often have nosense of what rights they might
be waiving.
And because those parties maybe, as they say, in love, right?
And so there are boundedrationality issues.
They can't imagine that thislove will ever end or this
(42:25):
marriage will ever end.
result in divorce, and theparties might benefit from being
forced to confront the realprobability that things might
end badly and to think aboutwhat should happen then.
I don't have quite the samelevel of fears for couples
entering IVF and thinking aboutthe disposition of unused
embryos.
(42:46):
These are couples who havealready thought a lot about the
IVF process.
It's not something you do on thespur of the moment, not for that
expense.
And they're likely far enoughalong in their married or
unmarried relationships toimagine that the relationship
might end.
And thus can think fairlyclearly about what they want to
do with embryos in that case orin the case of one of them
(43:08):
dying.
Also, in general, as we'vementioned and you mentioned as
well, IVF is a very expensiveprocess already.
A significant portion of thecouples who use it are not well
off.
They'll take out loans, they'lltake out mortgages, second
mortgages, third mortgages topay for the process that having
a biological child is thatimportant to them.
(43:31):
And to add to that expense, I'mless worried about the time, but
add to that expense for whatappears to be a relatively
limited benefit, I agree doesn'tseem a benefit worth the cost.
SPEAKER_09 (43:45):
Thanks, Brian.
Next, Nia has a questionregarding courts' attempts to
enforce parental obligationmandates.
SPEAKER_03 (43:51):
In your book, you note that the courts are
reluctant to allow parents towaive their parental
responsibilities, but frequentlycourt mandates to fulfill
parental obligations, forexample, child support, as you
mentioned earlier, areneglected.
To this end, how much of thecourt's attempts at enforcing
two-parent households areunworkable in practice?
SPEAKER_01 (44:12):
So, of course, the first thing to note is the
obvious point that courts onlyrespond to the cases that are
brought to them.
And the state has neither themotivation nor the resources to
seek enforcement of more than asmall fraction of child support
orders.
Now, there's a whole very longdiscussion, Professor Tenbrook,
(44:34):
brought this up, professorsCarbone and Kahn have written
about it.
The family law that applies tothe poor is very different than
the family law that applies tothe rich.
And certain norms of family lifeare enforced and supervised with
poor communities that aren'twith other communities.
(44:55):
And as also, as we've discussedhere this morning, There are
communities which seem to havedeveloped social norms about
parenthood support andvisitation, which vary from the
official legal standards.
And to be honest, I'm notentirely sure how I feel about
that.
I understand why mothers mightbe reluctant to share parenting
(45:16):
with fathers who they perceiveto be unreliable or worse.
But I'm also concerned aboutgiving mothers, invariably not
parents, at least some of whommay not be acting for the very
best motives all the time.
I'm a little concerned aboutgiving mothers full veto rights
over father's ability to seetheir children.
(45:38):
Professor Carbone and I areworking on an article about
thinking about the possibilityof creating community mediation
centers where parties would havesome limited ability to create
agreements about theirrelationships and their parental
rights that might vary somewhatfrom the official legal
(46:00):
standard.
But I think it's complicated andit's potentially risky.
SPEAKER_06 (46:04):
Thank you, Brian.
And to close this out today,Alyssa Lawrence has one final
question.
So without further ado, pleasetake it away, Alyssa.
SPEAKER_07 (46:11):
Thank you.
So my last question, withreference to Baby M and Johnson
v.
Calvert cases, you mentionedthat many have doubts about the
fullness of the consent of thewoman who agreed to be
surrogates.
Although I do believe that, yes,in some situations, surrogacy
can be coercive, I also believethat women should be free to
(46:32):
make their own decisions abouttheir bodies and that those who
want to and or cannot havechildren of their own should be
able to make these agreements.
Moreover, I worry that thosecommitted to having children and
those committed to providingthem for a fee would find their
way to transacting even in theabsence of a safe and regulated
(46:56):
market, would commercialsurrogacy not provide a safer
and more well-regulatedfoundation for these agreements
to make sure that all partiesunderstand the risks and terms
rather than having peoplenavigate this world on their own
through informal Reddit meetupsand the like?
SPEAKER_01 (47:16):
Okay, great.
Thank you.
Before I answer the question,let me just say it's been a
wonderful honor to be on thispodcast, and these questions are
really great and press me onjust the issues that should be
pressed.
I hope all of you arevolunteering to read my next
manuscript before the book comesout.
But returning to this question,I think your view is absolutely
(47:40):
correct, and it's supported— bya lot of scholarship, including
an article by June Carbone andJody Lene Madera in the
Washington Law Review Online,that shows that professional
commercial agencies are justbetter at having safeguards and
procedures that avoid most, ofcourse, not all of the worst
(48:02):
surrogacy outcomes that comefrom informal surrogacy
arrangements.
Also, I think If you look at thelegislation in states like
Illinois, Illinois' GestationalSurrogacy Act, they do a fairly
good job of avoiding some of thedangers of coercion, fraud, and
bounded rationality, thatsurrogates must receive
(48:22):
counseling and independent legaladvice, that they're only
eligible to be surrogates ifthey've had children in the
past, that surrogacy agreementshave certain protective
provisions.
regarding insurance for thesurrogate that also covers
post-pregnancy complications andso on.
So yeah, I absolutely agree thatas in many areas, and then I
(48:43):
assume this has come upregularly in your course, the
alternative, we shouldn't assumethat if we don't authorize
something, it doesn't happen,right?
When you don't authorizesomething, it happens, but it
happens in the black market withfewer protections And, you know,
with bad choices and no goodregulations.
(49:05):
I'm not saying that everythingof all kinds should always be
legal.
But, you know, especially withcases, you know, at the border,
I think there's a lot to be saidfor legal regulation,
professionalization, supervisiongoing forward.
SPEAKER_05 (49:25):
Thanks so much, Brian.
This was fun.
SPEAKER_01 (49:27):
I enjoyed it.
SPEAKER_05 (49:29):
And you're continuing your trend of being
concise.
Look, we didn't even
SPEAKER_01 (49:32):
take the entire time.
Everyone's invited over fordonuts right afterwards.
SPEAKER_05 (49:38):
Well, thank you so much.
And thanks to our co-hosts andthanks to all of you guys for
your fabulous questions today.
It's nice to kind of have afree-flowing exchange when we
have time, which we don't alwaysbecause not everybody is as
concise as Brian.
SPEAKER_01 (49:53):
And people speak slower.
SPEAKER_05 (49:55):
Well, thank you for doing this.
We'll
SPEAKER_01 (50:00):
let you go.
It's been a great pleasure andan honor.
And you guys do a wonderful job.
And I look forward to hearingall of the podcasts except for
this one.
SPEAKER_05 (50:09):
Thanks, Ryan.
SPEAKER_01 (50:09):
I think this is going to be the best
SPEAKER_05 (50:11):
one.
It is the best one.
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