I wrote about a recent Utah case yesterday and that post has attracted a lot of comments. I haven’t had the chance to read them all (and I’m a bit worried about the tone of some) but the ones I have read have gotten me thinking more about the case. I thought I’d do a second post on it partly because reading through too many comments becomes unwieldy. This way people can spread them out. But I will write here assuming you have already read yesterday’s post, so if you have not you should go do so.
I’m sure it is the contrarian in me, but first I want to think about this from the Frei’s point of view. These are the adoptive parents who are seeking to keep the child and everyone has jumped all over them in the existing comments.
I actually can imagine why their side of the story appeals to some people, and if you all can’t I think you should try harder. It’s important to try and take other people’s points of view even when you don’t like them. I don’t think it’s fair to conclude that the Frei’s are malicious or evil without trying very hard to construct what their arguments might be.
I see at least two fair points that they might raise. First, the Freis are a stable and intact married family. For some people–many people–this is seen as by far the best setting in which to raise a child.
By contrast Achane will raise the child either as a single parent or with a stepparent. Both of these alternatives can be criticized. Indeed, a number of people here have made fairly negative comments about step-parents. (I recall something about the Cinderella syndrome?) And I don’t have to strain to recall arguments against single parents, either. Lots of people think that both of these circumstances are compromised or fraught with peril. (I should be clear that I do not think this, nor do I mean to advocate it. I just recognize that a lot of people do think either or both of these things.) If you take this perspective than the Freis are a better home for the child than is Achane and their efforts to keep the child are defensible on that ground.
Second, the child here is now nearly two. She has known only one set of social/psychological parents–the Freis. She does not know Achane. He has not been allowed to establish a meaningful relationship with her which means he has no meaningful psychological bond with her. Under these circumstances, there is no doubt in my mind that she will experience real loss in moving from one family to another.
Now we can all vary in how we weigh that loss vs. whatever gain there is, but some people surely see the loss as more important. Indeed, if you did this weighing purely thinking of the best interest of the child it might be close. As it happens I think there are other things to be weighed in the balance–like the apparent bad conduct of the adoptive parents and/or adoption agency. But for some people the desire to punish or deter bad conduct might take a backseat to thinking only about the well-being of the child.
Similarly, I think about the wrong done here to Achane and to the whole structure of parental rights. I’m probably biased in favor of law generally and so it isn’t surprising that I want to vindicate rights both for the individual and for systemic reasons. But I know that some people think it is wrong to place the rights of adults ahead of the rights of the children involved in cases like this. If you took that view, than the injury to Achane, while regrettable, doesn’t belong in the analysis where you consider what is best for the child. Again–I want to stress that this is not my view, but I can see that it is a not uncommon view out there in the world.
Finally, there’s something I’ve been wondering about. Imagine if you had exactly this case but if Achane and Bland had been unable to conceive on their own. Suppose they had turned to ART and had ended up using sperm from a third-party. The law here would be the same–Achane would be a legal father. But the genetics would be different–he’d have no genetic tie to the child. This would not change my thinking about the case, but I wonder if it might change the view of some of my readers? Just asking.