The rise of assisted reproductive technology (ART) as a social practice and as an industry has introduced new tensions into the law defining parents. I’m thinking particularly here about the arrival of “intended parent” as a legal construct. Add in heightened demands for recognition of a diversity of family forms, and you can see that we live in a time of legal uncertainty. This may help to explain why, as I’ve said before, the law on parentage varies dramatically state to state.
Given all the tensions and inconsistencies it’s a fine time to re-examine some of the old assumptions. So let’s think about why, in the scenario I described yesterday, the man might be a father at all.
To recap briefly, imagine a man and an unmarried woman meet at a party and spend just a few hours together. They engage in intercourse and pregnancy results. The woman elects to carry the pregnancy to term (for the moment I’m going to assume that she has a meaningful choice) and so a child is born. Under virtually all existing legal doctrine, the man would be identified as the legal father of the child. (Note that it may be important that she is unmarried, because if she were married, her husband would start with the presumption of fatherhood.)
Should we just assume that he is the father? Why should he be?
I want to be clear at the outset–Questioning his entitlement to the status “father” is not the same as completely denying his importance. Maybe he should have some obligation to support the child because his actions helped to create the child. Maybe his identity should be filed away somewhere so the child could locate him in the future. This does not mean he should be accorded all the rights/obligations (as well as the social status) that go with being a parent.
It is terribly tempting to start with the assumption that he really is the father and that the law ought to recognize that. That’s because of the weight we accord the genetic link. Indeed, we might even call him the “natural” father–the implication being that he is the father just in the nature of things, rather than by operation of some legal regime.
Of course we could do this. The real question is whether we should do this. To do that one should probably think about this idea systematically, from different points of view–from the perspective of the child, from the perspective of the woman, from the perspective of the man, and from the collective perspective of “society.” And I’ll try to do just that, starting tomorrow.