In the course of the discussion in the comments on an earlier post, a question came up that does arise here from time to time. I’ve decided I should take the time to address the question head on and in a post all of it’s own. You do not need to read through all the comments there to go on with this post. I will do my best to set it all up here and I’m sure others will chime in to provide further context.
So from time to time in ART someone asks “Is it in the best interests of the child to (fill in the blank).” On this blog, the blank has something to do with the use of ART. So for example, it might be “Is it in the best interests of the child to use gametes from a third-party who will not play a role in the child’s life?
Now the best interests of the child test (which I’m going to abbreviate as “BIC”) is an important one in family law and it is quite alluring as a rhetorical device, I think. But I also think it is completely out of place and really quite incomprehensible in this context. Let me explain:
BIC is the test used to determine residence and decision-making for a child after the parents separate. A court makes an individualized determination, looking at the child before it and the options presented by the competing parents. The judge asks herself or himself “what is best for this child?”
Now the test is subject to really extensive criticism and analysis. If you think about it, “what is best?” is a pretty fuzzy question. There are widely varying ideas about what is good, nevermind best, for children. It seems pretty clear that in close cases different judges will make different choices and so the outcome in a close case might depend on who’s sitting at the front of the room. This, however, is beyond the scope of my blog so I won’t go further down that road here. For my purposes here the key things to realize are the BIC requires that a court to 1)focus on the particular child, 2) compare alternatives (the possible custody arrangements) and 3) choose the best one.
With that in mind, let’s think about whether this test can inform our discussion of the use of third-party gametes. Let’s suppose you have a single woman who is planning to have a child using sperm from man who will not be involved in raising the child. (I would like to set aside the question of anonymity for the moment, if I may. Remember I’m just using this question to examine use of the BIC in the context of ART.) Can we ask “Is it in the BIC to let this single woman use the sperm?”
I see two interlocking problems with this question. First, note that step one above requires that the court focus on the child. This isn’t incidental. It is a critical strength of the BIC. It is child-centered. But how do you think about a child that doesn’t exist yet? Remember that the idea of the BIC is that it is tailored to the specific child–we do not ask “what is best for children generally?” If you ask the question at the point where the child is at best an idea, I don’t know how you are supposed to individualize the inquiry.
Even if I can get myself past this hurdle, I run into 2 and 3, above. This is where the court compares the alternatives. Now in conventional custody cases, there are multiple alternative–different divisions of time and decision-making authority. What would it look like here? One alternative is that the child isn’t brought into existence. The other is that it is. So I think this means I’m supposed to ask “Is it best for this child to be brought into existence or not?”
Here’s where I get all metaphysical: Can it possibly be better for the specific child to never exist at all? This is an impossible question–impossible because it requires you to assume a child first, which requires you to bring the child into existence which means it is too late to ask about not bringing the child into existence. Or something like that. Whatever it is that is going on here, it doesn’t seem to me to be in the least useful in considering the use of ART here.
Let me close by observing that you can certainly ask whether the ART practice at issue here is a good idea. You can ask that “Is this a good idea” question on either of two levels. You can do the general (“Should single women (generally) be allowed to use third-party sperm?”) or you can do the specific (“Should this single woman be allowed to use third-party sperm?). Both of these are legitimate and important questions that I’m happy to discuss here (though perhaps not in this post as I’d like to keep this one focused on BIC. In fact, I think that both of these questions have been discussed here.) But I think the ”Is ART in the best interest of the child” approach is nothing more than a confusing bit of rhetoric.