The Trouble With Bright Lines

[I am leaving this post here for now, but I have decided that I made some mistakes in my use of language.  Those are discussed here.  Thus, there is essentially a new and improved version of this post here.]

I’m going to continue with this last thread for a bit longer.   The last post I wrote called into question one of the underlying assumptions of family law and, I suppose, of this blog–that there is a bright line separating legal parents from those who are not legal parents.

I’ve been thinking about this with regard to the one-night-stand problem.  That’s something I discussed at some length (did it seem interminable) a while back.   This is as good a place as any to jump back to that conversation.   (You might want to read a few of the entries to get the gist of what I was thinking.)

Anyway, from my point of view, part of the problem with saying that the genetic link, the DNA, makes the one-night-stand guy a father is related to the bright-line.   If you make me choose between assigning him to the category “parent”, with full attendant legal rights and obligations or assigning him to the category “not parent” with no legal rights and obligations, I’ll pick “not parent” every time.   It seems unreasonable to me to assign him to the same category as the people I know who undertake to raise children in a deeply committed way.   They are just not in the same class.   So if you give me two and only two categories, starkly separated, I slot him in as not-parent.   

Do We Really Need a Bright Line?

I want to take a moment to raise a question that really lies at the heart of my enterprise.  From the beginning on, probably more times than I can count or link to, I have noted how important it is to be recognized as a legal parent.  It is precisely the importance of being a legal parent that drives so many of the cases I’ve noted.   (See here and here, just to pick two places.)

The reason it matters so much whether one is a legal parent or not is that we draw a very bright, very broad line between legal parents and the rest of the universe.   Legal parents have all sorts of rights and obligations.  Everyone else has nothing at all.   When you move out of the category “legal parent” it is as though you fall off a cliff.   Those who are not legal parents–be they step-parents, second parents, grandparents honorary aunts and uncles, or whatever–generally have no legal rights (or at the very most extremely limited legal rights) vis-a-vis legal parents.

The Future of Fertility

This is a bit of catch up.   A story in the Independent (UK) a little while ago:  In honor of the thirtieth anniversary of successful IVF, asked fertility researchers to look thirty years into the future.  Here is what they came up with.

It seems to me that much of this is in the realm of science fiction, but perhaps it always seems that way right up until the moment it is real.   What’s interesting to me is to think about the ways the developments discussed here might challenge us to think about parentage.    One development was particularly thought-provoking.

The artificial womb. 

A few final thoughts on NC case

A few final thoughts about that NC case–I’ve written about it twice already–start here.

In all the North Carolina cases there is simply no question that the woman who gave birth was a mother.   I’m not saying there should be, I suppose.  But why exactly is it so clear that we take that as a given?   In fact, three things align to support her claim–DNA, pregnancy/birth, and function.   That makes it easy.   But you can see how unwilling the courts are to rely on function–after all, that would make the other woman a mother, too.   So the claim really rests, I think, on what we could loosely call biology.  

News in Brief: NC Case, Part II

This picks up from the last post.  Do read that first or you’ll be at sea here.

The bottom line, you’ll remember, is that Heatzig is not a parent to the children.   Not being a parent, she has no special right to see them, spend time with them, make decisions about them and so on.   Not being a parent, she is essentially deemed to be a stranger–with about the same legal relationship to these children that I have.

Now just on a non-legal, visceral level, that seems absurd and, frankly, offensive.   To say that I shall have no role in these children’s lives is quite reasonable.   It does nothing more than protect a parent from interference by outsiders.   That’s a good thing.  (For those of you who are parents, think about a world where any stranger could second-guess your discipline choices, provide suggestions for schools and so on.)

But Heatzig is in quite a different position. 

News in Brief: NC Appellate Court Rejects Lesbian Mother Claim

Yet another fight between lesbian mothers in the news.   This one is from North Carolina (thir case this year) and you can read the opinion here.

Even in the time I’ve been blogging, which isn’t all that long, there have been a bunch of these cases.  Maryland, North Carolina, Kentucky, I’m sure there are more back there, and then there are the ones I skipped or missed.  You get the idea, I trust.

I guess on one level it is not so surprising that these cases arrive so frequently.  With fifty different states (and then the District of Columbia and territories) there are a lot of places that need law on this question.   And lesbian parenting is still, at least as far as the courts are concerned, a new enough phenomenon so that law has to be made.   But it is also terribly discouraging.  These aren’t simple fights over custody. These are instances where one woman challenges to others status as a parent.  I realize I don’t know the underlying circumstances in these cases.  Still, I find resort to this tactic (typically by the woman who gave birth to the child) extremely problematic.    And that results vary so, state to state, is also troubling.   Should whether or not you are a parent depend on where you live?

Now, on to the new decision.

Finding Families

There was a fascinating story in yesterday’s New York Times.    It’s about a man–Mark Cellura–who was adopted as an infant.  At fifty, he learned he had been born a twin.   Sadly, his twin, who had also been adopted, had died over twenty years earlier.  But he was able to make contact the woman who adopted his twin, including his twin’s mother, Doris A. Weiland.  She and her daughter have embraced Mr. Cellura as a member of their family.   (Indeed, Mr. Cellura now refers to Ms. Weiland as “Mama D.”)   Mr. Cellura also located the woman who gave birth to him, but she has not responded to his efforts to establish contact.

There’s a fine story of modern family.  I don’t think we have an accepted term for the relationship between Mr. Cellura and Ms. Weiland–though I do not mean to dispute for a moment his right to call her Mama D.  Legally, of course, they are strangers.   But the law should hardly guide us or constrain us here.   They are clearly bound together.  She was the mother of his twin brother.  It’s easy to understand why for each of them the other is a very important and special person.  

Two Dad Families on the Rise

Now where did that last week go?  Oh well.  It’s August.

Just a quick note about a new AP story (not sure why it is news.  Perhaps see the above–it is August?)  about gay men embracing parenthood (and also, notes the headline, marriage.)

The focus of the article is surrogacy.   It’s true that lots of gay men use surrogacy, but many also adopt.  The article notes, however, that surrogacy is becoming easier while adoption is not seems rather a sorry commentary on the world, at least to me.   By the way, I’ve written quite a lot about surrogacy–much of which will show up here.

It seems to me there are three main factors that might influence the choice to use surrogacy (assuming, given the cost, that it is an option.)

One is the genetic link thing.   If a gay man (or any single man, for that matter) wants to have a child with whom he shares a genetic link, then surrogacy is likely the best way to do this, assuming he doesn’t want the child to have a mother.   He donates sperm, the egg is typically purchased, the surrogate is hired and off you go.   (I’ve noted elsewhere the gay men may be more comfortable with the surrogate in some ways then are women.  After all, the surrogate is doing the job of a woman, and so might threaten a woman.  But for a man, it’s not so complicated.)    

The Global Fertility Market

Here’s a story from the Guardian (UK) that details a slightly different aspect of the global fertility market.  This is not an instance of outsources surrogacy, which I’ve discussed a bit before.   In this instance a German woman living in the UK purchased sperm from a Danish donor (via and New York seller, it appears) and had it shipped to India.  There it was used along with eggs from an Indian woman to create embryos that were then implanted in the German woman.  Both donors are and will remain anonymous.

The story details why she ended up going to these lengths.   It is not just about doing it cheaper.   It seems there is “acute” shortage of women donors (egg donors, that would be) in the UK.   That means long waits.   Also, she had five embryos implanted, which would not be permitted in the UK.

Apart from the fact that it is yet another glimpse of the brave new world in which we live, does this story have the potential to teach us anything?   What does it matter that this involves global travel as opposed to working strictly locally?   Is the concern about exploitation different when it is inexpensive egg donors India provides rather than low-paid surrogates?  It seems that difference might matter, as egg donation is more like sperm donation (which does not seem exploitative to me) than it is like surrogacy.   Still and all, there is something that makes me uneasy about stories like this.

What Remedy and Why?

I’ll follow my current thread (this is the last entry) one more entry.   It may seem that it is a bit of a stretch from my general concern about defining which people are parents.   But it ties in for me.  I’ll show how first and then turn to thinking about sorting things out.

I’ll stick with a hypothetical where a child is stolen from her mother and then placed with another family.  And to make it difficult, I’ll make the second family unwitting.   That’s the scenario that started this particular musing.   The original woman is a parent, at least at the time the child is stolen.  I’m not going to worry too much about the basis for her claim–I’ll give her all factors–she gave birth to the child, she is genetically related to the child and she cared for the child.  I’ll assume pretty wide agreement thus far.

Whether the second set of people are parents is a different question.  I’m going to assume that they acted as parents and did a good job at it.  The critical question for me would be “for how long?”   The longer the time, particularly relative to the age of the child, the more likely I’m going to call them parents, too.   So if you suppose that the child lives with that second set of people from when she is 4 months old to when she is five years old.  I would say they are parents.