What Does It Mean That A Child is “Yours?”: Thinking About ART Mistakes

Here’s a thought-provoking piece from The Guardian, UK.   It ties back to some of my earlier thoughts about ART mistakes. (The most recent string was occasioned by the “wrong embryo” case featured on the Today show not so long ago.)  

As the article notes, while uncertainty about paternity has been around forever, uncertainty about maternity is a new problem.   Time was a woman gave birth and we knew she was the mother.   Now?  She may not be legally recognized as the mother of the child (because in a jurisdiction that enforces surrogacy agreements a woman who gives birth is not necessarily a mother).   And she may be legally recognized, but she may not be genetically related to the child.   In this brave new world, women as well as men may now need to ask ”Is this child mine?”   

This question–is the child mine-is a fascinating one.   To say that this thing or that thing is mine is to claim possession.   Children, of course, are not possessions, nor can they be possessed.   As it is used in this article (and in the Michael Jackson’s Billie Jean) the question is really one about genetic lineage–was my genetic material used to create this child

So Maybe Being A Parent IS All About Sex?

Under the laws of many states (including Washington) and in the Uniform Parentage Act the parental status of some men turns on the precise means by which the crucial sperm entered the mother’s body:  If sperm is introduced via intercourse than the man is a father while if it is introduced any other way, he is not.   I have commented in the past  that this seems a very odd place to draw a line. 

People of differing views might well share this opinion.   If you think genetics is the  crucial determinant of parental status, then the man is a father no matter how the sperm is delivered.  If you think intent is critical, then the man may or may not be a father–engaging in intercourse is no guarantee of intent to parent.   If you tend towards function (as I typically do) then the man may or may not be a father, but it has little to do with the actual delivery of the sperm.   And so on through the tests I’ve discussed.   

Even when I might disagree in substance (as I do with the genetics-is-fatherhood stance) I find it sensible that sex/no sex is not where a line is drawn.  

Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    

News from the UK: Gay Fathers Reflect

I seem to have allowed myself a de facto sabbatical from my blog last week.   My apologies to you all, but I suppose I needed the time away.   Anyway, I’ll gear myself back up now. 

Here’s a story about gay fathers in the UK.  It isn’t really a story, though. It’s six gay men/couples talking about their experiences adopting in the UK.   Not the sort of thing you see in the mainstream press all that often, really.  

I’ve been thinking a good deal about gay men and parenthood recently, though I haven’t had occasion to write about it for a while.   One so often lumps together “gay and lesbian” parents.  Yet parenthood is deeply gendered (surely I’ve said this thirty times?) and so lumping lesbian and gay parents together misses as much as it captures.   

CA Case About Hierarchy–Too Many Dads?

A few days back I wrote a couple of broad posts about the hierarchy of parenthood.  They were pretty abstract, not rooted in any case.  But here is a recent case  from California that shows what I mean. 

Maybe I should note first that hierarchy cases usually arise in a specific circumstance–when more people are claiming status as legal parents than can be allowed.   So here, for example, two men claim to be the father but only one can be recognized as a father.  

When this happens the court must choose among the contestants.   That might mean making an individualized decision about the best interest of a child, but for reasons I discussed earlier it more typically means reference to some hierarchy.   Just as in poker, a full house beats two pair, so in parenthood, some grounds for claiming parenthood will beat others.  

 I’d distinguish this from two other situations.  Sometimes we’re looking for someone to take on the status (and obligations) of  parent and we are short of volunteers.  When this happens, the court just needs to find someone it can assign the role and there is generally no comparison among possible candidates–after all, the premise of this is that we are short of volunteers.  

News From Australia: How Many Parents and Why?

I’ve been mulling over a recent news story from Australia that someone sent to me.  It’s a rather complicated tale.   

 Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years.  During that time, each of them gave birth to a child.   Ms. Halifax used sperm from a family friend, identified as  Mr. Dalton.  That child is now seven.  Ms. Fabian used sperm from an anonymous donor.   That child, a girl, is the subject of the litigation.  She is now three. 

The two women separated when the daughter was 20 months old.  At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales.    Ms. Fabian now wants to return to New South Wales.

Her request to move is being opposed not only by her former partner, Ms.  Halifax, but also by a gay male couple.   According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton.   An Australian court has determined that she should not move while the requests of the various parties are considered.     

Sperm Donors, Egg Donors or Gamete Donors?

Recently there has been a lot of conversation on the blog about anonymous donors.   Sometimes it’s clear that people have meant to use the term inclusively, to cover both egg donors and sperm donors.   But sometimes it seems to have been more specifically about sperm donors, as when sperm donors were compared with ”deadbeat dads.”  

It seems to me that in some respects whatever concerns there are about anonymous donors should be the same for sperm donors and egg donors.   In essence, they donate the same thing–genetic material necessary to create a child.   To the extent it seems like a problem, in both cases a child might not be able to trace back his or her genetic lineage.     

Despite this similarity, the conversation tended to focus fairly specifically on sperm donors from time to time, while it never migrated specifically to egg donors.

For the Good of the Children?

It’s hard not to pause to comment on this story, which is currently on the AP wire.   Keith Bardwell, a justice of the peace in Tangipahoa Parrish in Louisiana, won’t perform marriages for interracial couples.    His rationale?    

“I don’t do interracial marriages because I don’t want to put children in a situation they didn’t bring on themselves,” Bardwell said. “In my heart, I feel the children will later suffer.”

Now I admit to being shocked at his candor and at his views.   And I am sure he is being rightly pilloried in many places on the web.   His unwillingness to marry interracial couples is outrageous. 

That said, I’d like to pursue a different train of thought.  I want to try to consider the general argument that some people shouldn’t have children because it will be bad for those yet to be created kids if they do.   

News in Brief: South Carolina, Standing, and Lesbian Foster Parents

There’s a recent South Carolina case that is worth some discussion I think.   Nancy Polikoff has a discussion of it on her most-excellent blog.  She makes many good points, so do go and have a look. 

In January, 2007 a child was born with cocaine in his system.   The child was immediately placed in protective custody.   The state placed him in foster care with a Michael and Lisa P, a married heterosexual couple.  A year later, the state asked if the P’s wished to adopt the child.   They said no. 

In February, 2008 the child was placed with Erin S.   Like the Ps, she had been approved by the state as a pre-adoptive foster parent.  Erin S. is a single 43-year-old lesbian.

When the Ps found out where the child had been placed they were apparently quite unhappy.

ART Frontiers and Parenthood

Just as I was taking a step back to think more broadly about some of the issues I discuss here, the New York Times began a series on the promise and perils of modern reproductive technology.  There have been two articles so far, both on the front page, one yesterday and now another today.   They’re gripping and sobering, too.  Definitely worth a read. 

Today’s story opens with a harrowing account of the experiences of Thomas and Amanda Stansel.  They used intrauterine insemination (IUI) as well as drugs to stimulate super-ovulation.  This is less hi-tech, less expensive, and presumably more common that IVF.     I’ll just leave it to you to read the story, which recounts what followed from their choice.  

Assisted reproductive technology (ART) unquestionably offers new opportunities to countless people who are unable to reproduce without some sort of assistance.   At the same time it brings with it countless difficult decisions and wrenching stories, legal challenges and regrettably, some bad outcomes.   (I realize we probably won’t all agree on which outcomes are bad outcomes, but I think we probably all ought to recognize that there must be some.)