Parent by Marriage, Part II

I wanted to continue with yesterday’s topic (which you can find here) for a bit longer. Remember that it is nearly universal to start with a presumption that the husband of a woman who gives birth is the father of the child. You can see why we used to do this, when we didn’t really have access to the “truth” that DNA reveals. But why carry on with this presumption now? Because we can know with near certainty whether the husband is the source of genetic material, shouldn’t we go with that?

I can think of two intertwined explanations for our continued attachment to the presumption. First, it’s much more convenient to just presume fatherhood. To demand DNA testing at every birth would be burdensome and intrusive. That’s particularly true as we’d like to believe that in the vast majority of cases, the results would just affirm the “husband is father” presumption anyway. Of course, this rationale weakens as DNA testing becomes easier, cheaper and faster. “Convenience is really just short-hand for “it costs more than it is worth” and we might not always think that is so.

Second, perhaps we’d rather not test the accuracy of the assumption that underlies the first reason–that in the vast majority of cases we wouldn’t learn anything new from the DNA testing. We would very much like the husband to be the father of the wife’s child. (I’m thinking here about intact, on-going marriages. Where the couples are separating at or before the birth of the child, we might not have that wish.) There is an oft-voiced belief that it is best for children to be raised by their married parents. (A narrower varient of this belief–that it is best for children to be raised by their married and genetically related parents–has become a cornerstone of the argument against access to marriage for lesbian and gay male couples. But this takes me way too far afield for the moment.) Maybe we’d really just rather not know how frequently the husband isn’t genetically related to the child. And so perhaps it suits us not to actually inquire and to instead rely on a presumption.

You could look at it in a different way, I think, one that might be more affirming of the husband/father. Perhaps, based on his relationship with the mother and his care for her during the time of her pregnancy (yes, there’s a whole series of assumptions there, too) the husband really is the father, whether he is the DNA source or not. Or at least maybe he is better positioned to become the father of the child than any other person is.

Maybe what we really need to care about (and what we should really use as our rule for decision) is who is going to be there for the child, who has and will continue to invest in a relationship with the child and (ideally) in a cooperative relationship with any other parent the child might have. And maybe it isn’t too much to hope that in most cases, the husband of the mother could be such a person.

But even as I write this I worry about all the assumptions buried in there. How often are they not true? And of course, if the underlying assumptions are wrong, the argument based on them is baseless. I wonder, too, about whether, before the birth of the child, anyone can claim to be a parent beyond the woman who is actually pregnant. (Now there’s a topic I must come back to.)

 

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