I put up a post a few days back about my views on the importance of stability/consistency in fashioning a test for legal parentage. The topic came up because of a Canadian case I had commented on earlier. To be clear (and I’m not sure I was) I meant my comments on stability/consistency more generally, though. I was thinking about how these factors should be weighed generally in devising a test for who is a parent, not specifically in the Canadian case or a case like the Canadian case.
Anyway, my point, in a nutshell, was that I think there can be tensions between valuing stability and consistency on the one hand and genetic connection on the other. I do not by any means suggest that these will always pull in opposite directions, just that sometimes they will. Focusing on circumstances where they do that helps you figure out what you think is more important. This is a staple of law school teaching–it is what hypotheticals are for.
So here’s my hypothetical for us all to think about: John and Mary wish to be parents. They use a gestational surrogate–Susan. What this means is that the baby Susan carries and gives birth to is not genetically related to her–it is genetically related to John and Mary. Let’s call the baby Calvin.
Unfortunately, there is a mix up at the hospital and Calvin is switched with some other infant. When Calvin is one day old, he is sent home with Olivia, who gave birth to a baby in the same hospital. Time passes. (I’m not saying how much because I think this will be an interesting variable.)
At some point, the error comes to light and we realize that Calvin has been raised by Olivia for however long has passed, but Calvin has no genetic relationship to Olivia. Let’s assume that Olivia wants to continue to be a parent to Calvin but John and Mary would also like to be Calvin’s parents. Now what happens?
John and Mary’s claim for parentage is clear–it’s the genetic link. (If you are wondering why I’ve got a surrogate stuck in there, it’s so that John and Mary do not have the period of the pregnancy to add to their side of the equation. If you want, you could think about what difference it might make if they did.) Olivia can invoke the consistency/stability values.
To me, it matters a great deal how much time has passed. If the mistake is discovered twenty minutes after Olivia leaves the hospital, this is easy. Calvin goes back to John and Mary. Indeed, as long as the time is short, I get to the same answer. (Someone might want to press me on why it’s obvious to me that John and Mary win and whether this is consistent with what I’ve said in the past about genetics.)
But suppose the mistake isn’t discovered for six months? Or two years? Or five years? In these cases I worry about the effect of moving the child–about the disruption of the Olivia/Calvin relationship. I’m inclined to hope that John and Mary will agree to be interesting and important people in Calvin’s life but not seek to assert that they should be his legal parents and Olivia should not be a legal parent. But if everyone insists on the all or nothing approach–the zero sum game–then I think consistent with the value I place on consistency/stability I have to go with Olivia, or at least a presumption that Olivia is the right choice absent some special showing from John and Mary.
What I’m effectively saying here, I think, is that I think there should be a general rule favoring consistency/stability over genetics. Obviously you can (and many of you do) disagree with that.
Some of you may also disagree with the idea that there should be any sort of general rule–you may wish to argue that each case needs to be decided individually based on what is best for that specific child with no assumptions made. I think this is actually a hard position to stake out–because how do you weight the value of the genetic connection, say? I don’t think you can do it without making some generalized assumptions.
I don’t mean to assign any particular view to anyone, but it seems to me that if you think that genetics is the essential attribute of parenthood than perhaps Calvin goes back to John and Mary no matter how long it has been. And it’s worth noting that under current law, whoever is found to be the legal parent gets to decide whether the loser has any contact with the child at all.
Food for thought.