Parenthood and Its Modifiers

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!

 

 

 

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54 responses to “Parenthood and Its Modifiers

  1. Genetic parents must have presumptive legal rights granted to them at birth – Is that part not granted under the constitution and recognised in Supreme Court rulings? That there must be cause to remove those rights proven in court?

    • I’m taking this to be a real question about the law and the answer is no–genetic parents do not necessarily have legal parental rights. I understand that this troubles many people but our legal culture has never tied genetics to legal parenthood that way. Historically husbands have been legal fathers to children born to their wives. In many–maybe even most–places they still are. Unmarried men may or may not be legal parents when they are genetic parents. And children born to unmarried couples surely have two genetic parents but they may or may not have two legal parents. (HIstorically they had none for along time, but now amost everywhere they’ll have at least one.)

      We can fight about what the law should be of course, but it seems fairly important to me that we all start with an understanding that the point you being with there–about genetic parents having presumptive legal rights–is not an accurate description of where the law is or has been.

  2. Julie you act as if parenthood is random, as if our culture is just starting now with a blank state.
    the truth is that kin relationships evolve over ages and millennia in response to bioligical and ecological realities. they weren’t invented by whim.
    you could say they are continuing to evolve. maybe thats so. so let them evolve but don’t act as if they don’t exist.

    “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.”

    As long as we are simply choosing things at random why stop there? why make the birthing woman a legal parent? perhaps we should take all babies and assign them to the person who wins some sort of parenting contest?
    I agree its not too nice to someone who has gone through pregnancy and all that but is it about niceness, or do you also agree that their is something inherent about it?

    • I understand if you say that genetics isn’t everything and there could be other factors to take into account. But you are on this campaign, with no reason provided, to create a system where genetics counts for NOTHING. How is that remotely logical?

    • Sorry–i do not mean to act like we are starting with a blank state–you are right, of course, that we are not. The history of parenthood through the ages is very important to me. And that history shows variation and change over time and across culture. Legal parentage is a concept which has given different meanings by different human cultures at different times. If nothing else, history surely shows that genetic parenthood and legal parenthood cannot be equated.

      I think it is the case (and I stand willing to be corrected) that in Imperial China if the emperor fathered a child with a concubine who then gave birth to the child, the child was understood to be the child of the empress. That’s denying the legal parenthood of the woman who gave birth. I don’t raise this example to say that it’s a good idea. I don’t like it myself. But it’s been done–it’s not just your hypothetical.

      The key (to me) is that you have to justify whatever choices you make. Thus, if I want to assign legal parenthood to the woman who gives birth, I have to justify that choice. That means I have to identify some goals (well-being of children, stability of empire, whatever) and I have to explain how my proposed rules serve those goals. I’d say the same if you want to assign legal parenthood via genetics–you have to identify the goals you are seeking to attain and explain how that rule serves the goals.

      • Fine, you can bring examples of exceptions to the genetic rule and make a case that the law should allow for exceptions, and then we can discuss what those exceptions should be. But that is not what you are doing on this blog. You are attempting to remove genetics out of the equation altogether which is completely contrary to society as it stands. You say something like “assuming genetics is not a criteria, what should this case be”. That’s what I find illogical.

        • Where we differ is this: I don’t think there really is a genetic rule and then exceptions. I think there’s a complicated patchwork of rules. Genetics is important to a lot of people, but not in all situations and not to everyone. It never has been the be all and end all. Things are different now because we can so easily measure genetics and this throws a lot of new questions our way. Ditto ART–both the technology and the industry.

          I wonder if we have to agree to disagree in some way, as neither of us will adopt the others view.

          I don’t think genetics are entirely unimportant. I think they obviously matter to some people. And I think they may be important to some people as an element of identity, which leads me to think about ways to include genetic forebears as something other than legal parents. (I believe I’ve said this before.) But I do think (and this might be what you meant) that legal parentage should not be determined by reference to genetics. That is, if you have two people who assert legal parentage only one of whom has a genetic connection to the child, I don’t think the one with the genetic connection should “win” because of that factor.

          At bottom, I don’t think being genetically related makes you more likely to be a good (by which I mean effective/healthy for the child) parent. If you’ve got one person whose actually taken the time and effort to establish the bonds of pscyhological parenthood and who plays that role for the child and another who hasn’t but can point to genetics, I’ll pick the first person every time.

          • “If you’ve got one person whose actually taken the time and effort to establish the bonds of pscyhological parenthood and who plays that role for the child and another who hasn’t but can point to genetics, I’ll pick the first person every time.”

            NOT SO JULIE. THE EXAMPLES YOU HAVE BROUGHT UP RECENTLY ARE AT BIRTH, BEFORE ANYONE HAS DONE ANYTHING, AND YOU SUPPORT EXCLUDING GENETIC FATHERS WHO ACTUALLY DO WANT TO COMMIT TO THEIR OFFSPRING.

            • believe me you wouldn’t get any argument from me if you were talking about excluding a genetic parent who showed up out of the blue when the kid was ten. This is NOT what the debate has been about at all.

            • As a general matter, I do think the statement I made is accurate. IF you’ve one person who has taken the time THEN I’ll pick that person. I think I’m pretty consistent about that.

              But you are right to flag the at birth sitations (where you might say that there isn’t someone who has taken time?) At birth is certainly the hardest time for me to make this position work. In general, I will go with the woman who gives birth–it’s tricky because there isn’t (in my view) an actual child before birth but I won’t ignore the process of pregnancy and she has done something with the developing child that is akin to taking the time/energy. So I go with her.

              Has anyone else? Hard for me to say ,it is true, and probably way more complicated than I can answer here right now. But it is the case (as you suggest) that the genetics don’t matter to me. If there’s a person (male or female) who has been deeply involved in the pregnancy–to the extent some second person can do that–then I have a general preference for that person over the total-stranger to the whole thing who happens to be genetically related–the one-night-stand guy. There are reasons for this and I’ll try to remember to come back to them soon–but I think I did this years ago near the start of the blog with the one stand guy.

          • Julie to me this seems like some wierd denial because to me it is so obvious that genetics is the cornerstone of fatherhood for the vast majority of people. THERE IS ONLY ONE EMPORER OF CHINA. The covering up of illegitimacy, marital presumptions, etc arose not because genetics was unimportant but because it was SO important it could not risk being discovered. And the list goes on. In fact most people simply assume that the genetic father and the social father is one and the same unless specifically informed otherwise. You may not like the societal norm, but there is no sense in denying that it exists.

            • I do understand that to you this seems like denial and perhaps there’s an element of that. But I’m not convinced that to the vast majority of people genetics is the cornerstone of fatherhood. Surely being a father is more than that these days? I think you could make a better case that once upon a time fatherhood was all about genetics than you can make a case that is is today.

              But I will agree that for many people genetics and fatherhood are linked and as you know I think that is not a terribly good thing–either for men, women or children.

              Maybe this will help–I will also conceed that the world I imagine–where performance of parenting functions is what defines legal parentage–is not the world we live in. Neither has it been in the past.

              I think what we have (and what we have had) is a pretty complicated patchwork of rules about parentage that have included different rules for men and for women, for married and for single parents. Maybe both you and I are seeking a simpler set of rules–one that would be more general and overarching–so that there would be less of a patchwork. I think we ought to agree that both of our goals are deviations for both historical and current legal norms–and we advance different reasons why the systems we propose are best. So there’s common ground and there’s clear difference.

              I’m not sure whether what you want is for me to agree that history is on your side. I just don’t think that is an accurate depiction of the past, which is why I’m resisting that point. But I’m not sure our assessment of historical practices is really the core of our differences.

              • You and I may not agree to extent.
                But what’s your justification towards excluding genetics ENTIRELY?

  3. “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.”

    “contributing a gamete to the creation of a child” Splitting hairs here: Contributed is giving and we give things to people for purposes. So it sounds like the gametes are contributed to someone for their child creation project. No genetic parents are simply put: people with offspring. That is what genetic parents are. Or they are people who have reproduced themselves.

    Don’t drag conception into it. Don’t drag gametes and all that noise prior to the birth of the child into it because there was no child back then. Back then they were not parents, genetic or otherwise. Its the birth of their offspring that makes them a genetic parent. It goes without saying that a person with offspring must have at, some point, combined their genetic material with the genetic material of a member of the opposite sex or there would be no offspring.

    • Yeah, good points. The birth of offspring is what makes someone a parent. (It no longer goes without saying that it required combining with someone of the opposite sex, any day now we may read about someone born using stem cell derived gametes combined with a same-sex person).

      And we don’t even have to use “genetic parent” to describe progenitors, the word “parent” is assumed to mean genetic parent unless we are asking who the person with legal responsibility is.

      Look at this find: I did a web search for “paternity tests” because I wanted to see the language used, and sure enough, the wikipedia entry on paternity testing is part of the larger topic called “Parental Testing” and begins as follows:

      “Parental testing is the use of genetic fingerprinting to determine whether two individuals have a biological parent-child relationship. A paternity test establishes genetic proof whether a man is the biological father of an individual, and a maternity test establishes whether a woman is the biological mother of an individual. “

      • john u and I are on the same page to the extent that a person with offspring did reproduce and is a parent and it goes without saying that at bear minimum their genes reproduced with that of another person’s genes or it was not them who reproduced. If they were cloned, it was their parent that reproduced – yet again. The clone would be the genetic offspring the same parents as the person they were cloned off of. Right?

        PS love parental testing because it proves whether they are parents or not.

        • Right, cloning would produce another offspring of the person’s parents, a twin. But then, when people reproduce, they are joining a subset of their 4 grandparents chromosomes together, including unexpressed recessive genes, not all of their own expressed genes together.

          But anyhow I’m not talking about cloning, did you see I mentioned “stem cell derived gametes”? That’s the key, that’s what I am always talking about. Should we let people try to reproduce with someone of the same sex somehow? The idea is, if it were a lesbian couple, they would take one woman’s skin cell or bone marrow cell and induce it to become a sperm, growing it in a man’s testicles perhaps, or in a hormone bath, so that the epigenetic imprinting becomes complimentary to the other woman’s egg and they could join to create a viable embryo. It hasn’t been done yet, but it could be possible. But would that mean both women reproduced together? One could say that, as that is as close as they could come to doing so, but at the same time it was really a non-existent “male-version” of one of the women that reproduced, and it’d be the lab workers that would be most proud of their creation.

    • If you want to say that genetic parents are people with offspring then i we have to make sure we share the same understanding of offspring which it seems to me is going to lead back to the same conversation.

      I just want to get on the same page in terms of usage/definition. For myself, I’d rather take a stab at removing the word “contribute’ as this seems to be your hangup here? I chose “contribute” because i wanted a word that covered conception via intercourse and ART, but it sounds like you find it too heavily tilted to the ART usage? I think we basically agree that whether you are a genetic parent has nothing to do with manner of conception.

      I don’t, however, see how you can avoid dragging gametes into it. If my egg is fertilized and, in the fullness of time, a child is born from that fertilized egg, then I am the genetic parent of that child, right? if a man’s sperm fertilzes the egg, then he will be a genetic parent when the child is born, right? Isn’t the key thing about my relationship to the child as a genetic parent that it was my gamete? What am I missing?

      Would it help if I broke it down further? A genetic parent is either 1) the woman whose egg was fertilized and subsequently developed into a child or 2) the man whose sperm fertilzed that egg? I do want to make the definition expansive enough to be clear that the location of fertilization (in utero or in vitro) and the manner of sperm-delivery (ART vs. intercourse) makes no difference to status as a genetic parent.

  4. In the UK family law is based on statute and precedent, so society’s definition of parenthood matters quite a bit to the way the law is interpreted. This means that new technologies really challenge the boundaries of the law since there is neither statute nor precedent in some cases. It’s an interesting time to be a family lawyer.

    For centuries the legal parent of a child was expected to be the genetic parent (given the absence of genetic testing this obviously didn’t always work out). Like kisarita I think the context of how most people’s families are created is what sets the expectations of what is or isn’t important. And if that’s malleable that’s no bad thing – views are changing about the validity of gay relationships and I strongly support that. I think the law is being led by what people are already doing, though, not the other way round.

    We can apply any law we like but laws that don’t reflect the values of the society they apply to will just be ignored.

    • The last point is a great one to remember, but I think the relationship between law and values is somewhat complicated. Law reflects our values but law also constitutes are values. One place you can see this is in the struggles over same-sex relationships. The lack of legal recognition for these relationships surely reflected past value judgments that they were at best worthless. As the value judgments have changed, the law has followed along. But at the moment I think it’s also true that recognizing the right of same-sex married couples to marry changes the way people think about those relationships. Legal inclusion in marriage makes people see the relationships as more valuable. Thus, the law reflects the changing norms but is also part of what shapes the changing norms.

  5. I thought the presumptive legal parents were the ones whose name was on the birth certificate? That may or may not be the genetic parent. Then the issue of determining legal parenthood only arises when there is some dispute. In that case, I think we all can agree that primacy should be given to what is in the best interests of the child. People may disagree on what is in the best interests of the child. I think the defining factor should be the commitment shown to the child upto that point. This is easier shown in the mother’s case than in the father’s case when the child is newborn. She has carried and grown the child in her body. That takes commitment.(*) Having had sex that results in the conception doesn’t meet that criteria, in my opinion. That is why I hesitate to assume that it is in the best interest of the child to give legal parenthood to the genetic father by default in that case, unless he has shown commitment in some way by taking care of the mother while she was pregnant. I would be more confident about the welfare of the child if the legal father was someone who had taken care of the mother during pregnancy and the child upto that point in time.

    (*) For the same reason, I think surrogate mothers should be allowed to change their minds at least for the first few months of the baby’s life.

    • The problem with that is a lot of the times when there is a dispute like that (particularly in adoption cases) the mother has actively prevented the father from helping during the pregnancy by refusing money or hiding from him. This makes it easier to push the adoption through without the father’s consent. I couldn’t support that legal standard unless there was an exception when the mother thwarted the father’s efforts.

      • On the other hand it is dangerous to force every pregnant woman to notify the father. The man could be abusive.

        • But if we take only the word of the mother (who may lie out of spite or to guarantee an adoption she wants even if the father is in no way unfit) that violates the rights of fathers who want to care for their children but are thwarted by the mother. There should have to be some evidence of unfitness or abusiveness before terminating the father’s rights if he has not been given the opportunity to care for the child because of the mother’s actions.

          • Thank you Rebecca

          • This discussion highlights an area where the biological differences between men and women with regard to child-bearing are crucial. I know it makes people frantic, but I’m willing to give the woman–who is pregnant–quite a bit of leeway. If the only tie the man can assert is the genetic link that seems to me to be notably less important. So when it comes to balancing rights, I’ll tip her way, because I think she has more of them.

            This is actually one of the things that bothers me about the heavy reliance on genetic relationships. From a genetics point of view the role of the man and the woman are identical. I think that rather misses something crucial.

            And there’s been a long discussion on the treatment of unmarried fathers generally and when they have rights–if you search “Utah” on the blog you’ll find a lot about that.

            • so people should only ave a right to be recognized as a legal kin to
              their genetic mothers family

              • The extent to which I agree with you is going to depend on what “legal kin” means. As I just wrote in a different reponse to a different comment–it might make sense to have some form of registration for genetic parents, too, and some set of rights that flow from that. We could call this relationship “legal kin.” But what exactly will that mean?

            • The thing is, often the only tie the father can assert is genetic because the mother actively prevented him from doing anything else like help with pregnancy expenses, buy stuff the baby would need, help care for the baby from birth, by hiding from him. Why should the father lose the opportunity because the mother is a dishonest person?

              • I know this is frustrating but i can ask why a man should get a chance at legal parenthood just because he had sex with a woman and his sperm happened to fertilze her egg? I think a lot of people start with the assumption that the default should be he has the opportunity because it is his sperm, but why does that make sense? I think it’s just where a lot of people start without thinking about why they start there.

                If the only tie he has is this genetic connection then maybe it is better for the child if he doesn’t have legal rights equal to the mother’s. Maybe we’d like to impose some obligations on him, maybe he should have some role in the child’s life, but asking the mother and this man to coparent when there’s no basis for that save for one sexual encounter doesn’t seem all that great an idea to me. I’m not all that sympathetic to him because after all, no one made him have sex (I’ll assume) and he could have used birth control.

                If instead we want to think about cases where there is more than a genetic link–where there is some relationship between the individuals involved–then there are different points to make but it’s no longer just about genetics.

                • Most of the adoption cases in the news where this came up involved a relationship (sometimes a very long term one) that went bad due to disagreements about what to do with the child. The one-night stand guy probably wouldn’t even know the woman’s name if he wanted to look for her and/or a possible child.

                • I think that for the system to be fair, there needs to be a balance between the rights of the child and the rights of the biological parents. I disagree both with an entirely child centric system (removing or denying parental rights just because another home would be “better”) or an entirely adult centric one (parents could take forever to fix their problems, resulting in no permanency for child). Unless there is some proof that allowing the biological parent(s) to raise the child will be harmful to that child, they should have the first opportunity to do so.

                  So for me, the fact that half of the child came from him, that he took part in creating that child and without him it could not have existed, means he should always get an opportunity to be his child’s father that can not be unilaterally thwarted by the mother, unless he chooses to give up those rights or is some kind of dangerous criminal.

                • Because there is a great possibility the child will grow up wondering who his genetic father is and even more, hoping for a connection. Because the man may feel the same. THIS IS NORMAL. It need not be universal for it too be normal.
                  What’s more, not only is it normal, it’s good. for genetic fathers to feel bonded to their offspring. You keep saying parenthood should be more about genetics. But then you insist on restricting those genetic parents who actually agree with you- they want to be more than just genetic parents. Yet another example of contradictory logic grounded in denial of social norms.

                  • I thought about this contradiction a lot and stickler for phrasing that I am, I realized that your phrasing may have been innaccurate, resulting in the contradiction.
                    You have been using quantifying, limiting words a lot. “I don’t want it to be JUST about genetics”. “It should be about MORE THAN genetics.” These words are innaccurate because they make it sound like you want it to be about genetics + care, when in fact you don’t want it to be about genetics at all. It would be more accurate to write “I don’t want to be about genetics,” period, and “It should not be about genetics/ something other than genetics. ” I believe that would be a more accurate expression of your position. Because when genetic fathers do express interest in care you often are not very sympathetic to them either.

        • Well then she can prove in court that he is abusive your using one of those debate tactics from the list of falacious arguments – your arguing based on something that may never even happen. If she has been horribly abused by him and wants the child protected from him how about trying an order of protection a restraining order. And what abusive men don’t have to pay child support? Just beat your kid soundly and no more having to buy them food or school clothing? Should the state just take over the abusive father’s duties for him? Those kids sht out of luck when it comes to being a legally recognized member of their father’s family? Nothing else to gain there? Kids who are abused by their fathers don’t deserve his social security death benefits don’t deserve any inheritance from him? No why? Why not? Why does a kid whose mother got beat up by his dad not deserve to inherit from his fathers estate? Even if Dad is a dead beat that never paid a dime of child support the grandparents can die, leave him their house and then the kid can take that house in back child support payments. Anything that man has he owes to his offspring and you think the kid does not deserve that? You think the mom should just leave his name off the certificate like she gets to be the judge? Who the hell does she think she is? And frankly lots of women hate the men that get them pregnant that does not mean they are abusive and it does not mean they will be bad fathers. Lots of men are dirty no good cheaters but are perfectly fantastic fathers what kind of wretched woman would deny her child his father because of her own egocentric trip. The idea that she can’t name the father out of fear is malarkey. If he is dangerous he goes to jail or has no custody but he should always be named father too much is lost by the child without him named as father.

          • If the case goes to court, then a potentially abusive man has already been notified. You are suggesting that a man should be notified in order to determine in court whether he should be notified. In a he-said, she-said situation, I would much rather err on the side of the safety of mother and child rather than upholding the rights of a man whose only involvement upto that point has been having had sex that led to conception. Correct me if I am wrong, Julie, but isn’t that one of the reasons why the current law doesn’t force a genetic test of both parents to record on the birth certificate? Are the commenters here suggesting that should be done? Because that is the only way to get what they want.

    • Really? So if he had not taken care of the mother up until that point then he should simply be let off the hook and not held accountable for the child he created? Does the child not deserve to be physically and financially supported by both biological parents? Do children of unmarried biological parents then not get legal recognition in their fathers family because he was not together with the mother when she was pregnant? Should the child just not get the ability to have access to his birth marriage and death records and that of his parents and other children just because he was not there during the pregnancy before they were even a person to abandon? If he is not named as the legal father of his own damn offspring who in sam hill should be? Why should they be? Why should it be assumed that having the child’s own biological father named would be damaging just because he was not around during the pregnancy. I have been pregnant 13 times and it is nothing like taking care of a baby and does not prepare women at all for the task of raising a child – mothers and fathers are equally inept at raising a newborn to adulthood and in my book neither of them gets preferential treatment they are equally responsible for raising the child once born. It should not be the mother’s choice to pick or choose whether or not the father does his job and raises his child. Anyone that stands in the way of a parent doing their job for their kid is in the wrong especially if its the mother she should know better.

      • I’m just going to offer a quick reminder that we could structure law so that the obligation to support a child is not tied to the powers of a legal parent. What I mean is we could say that a person has an obligation to help pay costs without saying they have the right to make all the critical decisions that a parent gets to make.

        • OK this time I’ll run with you on this approach. Besides the right to be supported by both genetic parents, also lost is legal recognition as being kin in their own genetic families. This flows from not having their genetic parent or parents named on their birth certificate as parents. They would have the right to his birth marriage and death record and his parents and those of all his offspring if his name were only on their birth record as father and on the birth records of his other offspring. Much is lost here the right to know who all the members of their immediate genetic family are and also who they are all married to what their health was at birth and at death. This is crutial stuff. Many other rights are lost by not being legal kin like family leave act and bereivement leave and being able to help siblings immigrate and having siblings and other kin qualify as relative dependants on taxes. The donor sibling registry does not help with that and neither does known donorship so far only being named as a legal parent makes people legal kin. That would need to be erradicated for me to be on board. They could be a member of the second family without loosing the first it would not be such a wretched selfish act Julie. Can you fix that can you find a way to manage that so there is no loss of legal recognition in the genetic family. Dying to hear your answer.

          • If you could make a person legal kin and entitled to physical and financial support from both genetic parents and also should’nt you have to prove that the genetic is too dangerous to care for their child’s safety before not allowing them to help raise the kid? Or should’nt the non genetic parent need to prove that they are at least on a par with the genetic parents before being able to usurp their position? I mean if there was no man able to be caught could the non genetic parent pending just boot the genetic mom to the curb and keep the kid all to his/herself? I would imagine you’d need something more than romance with the mom to qualify them to be a parent rather than step parent.

          • I’m not entirely sure what you are asking, but I’m going to try to respond anyway. (I’m not sure what legal kin are–you mean like next of kin?)

            To me the key thing about legal parents is that they get to make all the really important decisions about a child. We rely on them to do this and we assume they will do it well (better than the state) because of their intimate knowledge of the child and their commitment to the child’s wellbeing . So I want the legal parents to have that authority and I want to identify them based on their actual role in the child’s life–not based on their genes.

            There is, however, a set of rights I can imagine assigning to genetic parents. So, for example, genetic parents might be assigned an obligation to provide health information to the legal parents and/or to the child. Children might (at the request of their legal parents or when they reach a certain age) be allowed to ask for information about extended family or lineage. I don’t see why you couldn’t throw in an entitlement to information about marriages, deaths and so on.

            But there are things on your list I think I would withhold. Children would not have immigration rights based on genetic connection alone–I’d attach those rights to the legal parenage side of the equation, I think. A child would not inherit from a genetic parent who left no will, but would inherit from a legal parent who left no will. (Intestate succession is designed to mimic what we think people would choose if they had made a will.) You wouldn’t get bereavement leave or sick leave to care for a genetic parent but you would get it to care for (or mourn) a legal parent.

            Of course, a person could be both a legal parent and a genetic parent. Many people are both. And to make it really stark–the key thing I’m not giving to the genetic parent is the power to make decisions–because I see no basis for assuming they’d make good decisions for a child absent a close psychological relationship with and deep commitment to that child. I want to see those factors before awarding legal parentage and the accompanying decision-making power.

        • we do in fact do that on occasion in cases of messy divorces when the parents absolutely can not get along, one parent may end up with all the custody rights but the other one still has support obligations. but Julie it goes without saying that this is a bad, bad situation, not one we like to promote.

          • once again you are acting as if we have just arrived from another planet and are developing the laws in a vacuum. We could structure the law so that support is not tied to the legal rights of the parent??? No we can’t. We can’t just start structuing and unstructuring things at random simply become some so-called feminists think that women should be completely autonomous of their children’s father’s decision making but not completely autonomous when it comes to taking money from him.
            (I say so-called feminists because to me this is not feminism. Feminism to me means equality).
            The obligation to support a child arises out of a kin relationship with that child. economic support is one of the functions of the relationship. no relationship, no basis for support.
            nobody has an obligation to support any random person.

            • nobody has an obligation to support any random person.

              Not any random person, but a genetic child.

            • It’s actually not feminism for me either so perhaps we can drop the word out entirely as I didn’t call it that.

              Maybe we cannot structure things at random but we can structure things to encourage particular behaviors and law does that all the time. We often hold people accountable for their actions and require them to pay costs of those actions. Child support can be understood as a specific instance of that well-accepted principle. I’m not talking about child support for a randomly selected child, but rather child support for a child who exists because the man enaged in voluntary intercourse with a woman and wasn’t careful enough about birth control.

              We could assign the power to make decisions for children with an eye towards what will ensure the best result for the children–in which case there may not be any reason to tie it to child support. I’m really not convinced it is best for a child to shackle two people together as codecision makers when they have no history of cooperative decisions making. I’d rather give the decision making to just one of the people and if she (and my default is she–because she’s pregnant) wants to share it, that’s all good. If not, well, I don’t know that I’d force her to do so.

              By the way, I’m hardly alone in this stance, though I suspect that doesn’t matter to you. A number of child pscyhologists think it would be better for a child to deal with the loss of one parent and be done with it than to be the ping-pong ball in a bad divorce.

    • Your right surrogate mothers are just plain old ordinary women who give their kids up for adoption and I think they should be able to change their minds when ever they feel like it until the child is 18. Adoption should be a temporary solution to a temporary problem. As soon as parents are capable of supporting their own offspring the state should make them do it and their offspring should always remain legally recognized members of their families even when they no longer have authority to direct their offspring’s daily activities because their offspring are being raised in an adoptive family.
      Gestational carriers however should never be named as mothers on birth certificates to begin with it opens the door for kidnapping and opens the door for them being stuck as mother if the real mother ditches out.

      • Wait–did I miss this before? You think someone who gives a child up for adoption should be able to change their mind until the child is 18? That, it seems to me, is a terrible idea. It seems to me that once you (the parent) have gone through some deliberative process and decided to give up your parental rights you need to be done and gone. (Let’s assume you have good process for the moment–because it sounds to me like your assertion isn’t dependent on the process.)

        Now I’ll grant you that my response is based on an assumption I make–one that I think I can back up–that children need stablity in their relationships. That means that the relationships between child and adoptive parents need to be accorded the same degree of respect and dignity as the relationship of other legal parents and their children. And that means that the original parents cannot just waltz in ten years on and take the kids back. I think that would be disasterous all around.

        • i will have to disagree with Marilyn on this one. People must live with their decisions. that’s life.

          • I do believe the time period to sign away rights/change mind needs to be longer than it is now in some states – 24 hours from birth for an irrevocable signing away of rights has too much potential for abuse when the woman is likely to still be physically and emotionally exhausted from birth, and may be on a lot of heavy painkillers if she needed a c-section. But 18 years is way too long.

          • No waltzing in and taking. Remaining obligated to certain minimum standards of care for having brought a child into the world like you are medically that child’s parent and your kin is their kin – you remain responsible for being named that way on medical records and have to make yourself available to communicate with physicians and what not and if you come into a bunch of money maybe you have to kick down or once your on your feet you have to contribute financially when you die they are not disinherited and they are still officially a member of your family and are officially still your child but are additionally their adopted child which means you have no legal authority to make decisions on their behalf. I don’t think that is waltzing in at all its holding people permanency accountable for the permanent reality of another persons existence.

        • Yeah I’ve come to this more recently in really committing to the idea that the law needs to be fair and give all minors the same rights and when things go wrong and their genetic parents cannot for whatever reason meet the physical and financial obligation to raise them that they really need not loose their original inherent right to be supported physically and financially by them in order for someone else to step in and be granted authority overthem until they turn 18. There is no need to disinherit them from their genetic family or to completely change their identity or to not recognize them as being the sister of their sister or niece of their uncle or grandchild of their grandparent. Many rights stem from simply maintaining their original identity as their parent’s child and there is no need for their identity to change just because their parents are too poor to raise them or are incapable of it or whatever. Why should they not still be entitled to their social security death benefits the way they would be had they been sent to live with a brother or foster family or anyone else. They are also entitled to that person’s death benefits as well as their parent’s if they were claimed as dependent on that caregiver’s taxes. There is no reason why the relinquishing parents should simply be let off the hook entirely as if they never had a child at all, its not the truth and their offspring and all other relatives loose a lot by trying to re-write history and change the whole identity of the adoptee rather than simply having the adoptee be legally recognized as the same person with a new adoptive last name like women take a married name. The adopting parties can still be legally treated with all the same respect as a genetic family like they are now but there is no need for adoptees and their relatives to have to live as if they are not kin and loose so many rights in order to facilitate that in happening. I am not talking about “Parental Rights to the Child” I’m talking about the child’s rights never being taken away as a result of their parent’s failure to fulfil their obligations. We don’t do that in the rest of law do we? I have a right not to be mugged by you and if you fail to abide by the law and then mug me, the law does not come along and say well since he broke the law and mugged you, you loose your right not to be mugged and we are going to let the mugger off the hook for breaking that law. No the right to be safe is what should be protected always and never taken away, the reality is I won’t always be safe, people do break the law but when they do there is some recourse against them for it. There is dignity in having the simple rights protected even when they won’t get to be universally enjoyed there is an expectation that all people have that right to life liberty and the pursuit of happiness. When life sucks and they get dealt a bad card we don’t go well then you loose your right to liberty. So I’m saying your parent’s failed to do what they needed to do it does not mean you stop having a right to expect that of them and as soon as they can contribute financially they should – why should they be excused as if their child never existed? Why does their child not deserve their support? How can someone else helping to support them really erase what the parent owes the child. Anything anyone else ever does for the child is truly in addition to what ever they should have done because those people don’t owe it to the kid the way the genetic parent does.

          Like in joint custody arrangements where one parent has full physical custody or whatever the other one does not stop having to support the kid or stop being a parent they just stop having legal authority to make decisions on behalf of the child every day. That would mean in my developing opinion that Adoptive parents would call the shots on the child’s daily life but could not put their names as parents on the child’s medical records, but rather as adoptive parent to make absolutely clear who is and who is not genetic kin.

  6. Julie said: “We can fight about what the law should be of course, but it seems fairly important to me that we all start with an understanding that the point you being with there–about genetic parents having presumptive legal rights–is not an accurate description of where the law is or has been.”

    Julie – I was trying to use your definition “genetic” to infer the mother who gave birth and the husband (father). I realize the husband may not be the father but wasn’t going there with that. Simply that the wife (mother who gave birth) and the husband (presumptive father) have had the right to be the parents under law.

    • Okay–but now I’m worried I’ve been unclear. The woman who gives birth is typically a legal parent–nearly always. Her husband often is. But I don’t mean to call either of them genetic parents. They migth be, but they might not be, too. I’d like to try to use genetic parents to me people who are direct genetic forebears of the child–and they may or may not be the legal parents. Sorry for muddling this. I find it hard to keep my language clear and consistent–as do many others. (That last is not exactly comforting–it can make things even more complicated.)

  7. Julie said: “Okay–but now I’m worried I’ve been unclear. The woman who gives birth is typically a legal parent–nearly always. Her husband often is. But I don’t mean to call either of them genetic parents.”

    Julie don’t worry about being unclear – I have had a stroke so I sometimes much to my dismay confuse things…my issue – not yours. It is good for my brain to think and I try always to be on the same page.

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