I’ve been reading over comments that piled up while I was away from the internet–responding to a few, but only making a beginning on that task. Several of the discussions revolve around the basic themes of this blog, which I suppose is hardly surprising, and I am reminded that the idea of legal parentage as a constructed or created status is one that is unsettling to many people. For that reason I thought I’d take time out to revisit it here.
Parent is one of those words that can be paired with many modifiers. So, for example, one can talk about a genetic parent. A genetic parent is (I think I’m on solid ground here, but stop me if I’m not) a person who contributed a gamete to the creation of the child. This means that every person has two genetic parents, one male and one female. Thanks to the wonders of modern science we can pretty much establish with certainty whether a person is or is not a genetic parent.
I think I might even go so far as to say that a genetic parents exist by virtue of the laws of nature. By that I mean that it is nature that dictates that you need the gametes to create a child. I can say I do not like that, but I cannot make it be other than it is (at least for now). Just as a stone will fall if I hold it at shoulder height and let go of it (like it or not) so to create a new person, I need those gametes. It’s just the way things are.
Now sometimes you might also read about biological parents. I think this term is a bit less precise and I’m not always sure what it means, so I try and stay away from it. In particular, I think I could make a case that a woman who is pregnant and gives birth to a child is a biological parent even though she may not be a genetic parent. But I know that not everyone will call her a biological parent. I don’t see any virtue to the uncertainty the term introduces, so I’m going to let that modifier (biological) go.
The other modifier it might seem to make sense to talk about now is natural, as in “natural parent.” However, what seems to make sense doesn’t actually always make sense so I’m going to defer this one for a moment and instead get to what is really my main focus here.
And that would bring us to legal parentage–as in who is a legal parent. And more generally, this means you have to think about law and where it comes from.
If you think about it, law is just a set of rules devised by humans to make society run nicely . To take a trivial example, we need a law about which side of the road you drive on. It could be either, but it cannot be both and it cannot be left up to each individual, so we need to make and enforce a choice.
More generally, criminal law tells us the things we are and are not allowed to do. Are we allowed to drink alcohol at 19? There’s no predetermined answer to this–there’s only whatever law we happen to have settled on for the moment. You cannot divine the answer by doing research, though you may be able to concoct arguments in favor of one result or another.
And we’ve decided to organize child-rearing in a particular way–with the main responsibilities assigned to individual households. The people in charge of a particular child are called the child’s legal parents. Under our system of laws they (the legal parents) get rights and they get obligations.
But who are they? How do we assign legal parentage for a specific child? There’s no necessary answer to this–by which I mean, nature does not decree any particular answer. We could say that the genetic parents are (generally or always) the legal parents, but there’s no particular reason why we have to. We could say that a woman who gives birth to a child is a legal parent, for instance, and stop there.
To put it bluntly, we can define legal parenthood as we want to–it’s a category created by society to serve society and society can give it meaning and substance. The question (which comes up all the time here) is what meaning and substance it should be given and (critically) why. If you want to say genetic parents should be presumptive legal parents then you have to tell me why. If I want to say that a woman who gives birth should be a presumptive legal parent then I have to be prepared to say why. If I want to say that the people who commission the creation of a child via ART are the presumptive legal parents, then I have to say why that rule makes sense. Those critical “why” questions lie at the heart of the discussions here.
I’m not going back to “natural parents” right this minute–I’ve gone on long enough. And now I have something to do tomorrow!