I’ve been thinking, while not able to be on-line, about why this area of the law is as it is–a total mess, full of inconsistencies and contradictions. Wouldn’t it be nice if it were tidy and neat, as many areas of the law actually are?
There’s no simple answer to the “why” question, of course. Why would there be a simple answer? But I do have some ideas.
There have always been parents, of course, by which I mean two things: First, that men and women have engaged in sexual activities with resulting birth of genetic offspring and second, that the young creatures require care and someone has provided that care, at least to some of those offspring. Sometimes the people providing that care have been the same as those who engaged in the sexual activities and sometimes not. Sometimes the caregivers have acted at the direction of those who engaged in sex and sometimes not. Sometimes there is no connection of any sort between the caregivers and the people who engage in sex.
For better or worse, organized (civilized?) societies tried to set up rules for these sorts of things. There were (and are) rules about who can and who cannot engage in sex. And there were (and are) rules about who is responsible for/who controls children. That last set of rules are the laws around legal parentage and they are the ones that concern me.
At some point a lot of these rules began to revolve arrange marriage in two important ways. First, it was lawful to have sex with the person you were married to and it was unlawful to have sex with anyone else. All non-marital sex was illegal. (It was either fornication or adultery, depending on the marital status of the people involved.)
Second, children born into the marriage (which is to say, born to a married woman) were legally assigned to the husband. (Except in extraordinary cases.) Children born to unmarried women were treated completely differently. (I should note that I’m really dealing here with western traditions because that’s what generally shape US law today, which is really what I know best.)
What all this means is that for a very long time, parentage law was divided into two parts–that for married people and that for unmarried people, or maybe more precisely, that for children born to married women and that for children born to unmarried women.
In the latter part of the 20th century there was a serious challenge to this regime. After all, children are blameless–they don’t pick the marital status of their mothers. So how can it be fair to treat those born to married mothers differently (and generally better) than those born to unmarried mothers? Not really a good answer to that and so the law started to shift and we tried to treat all children equally, no matter what the marital status of their mothers. This, as other discussions on the blog should make clear, turns out not to be easy.
Now what really makes this complicated is that at about the same time a totally other set of changes were occurring. Infertility of various sorts (medical and situational, perhaps we could call them?) has doubtless always existed, but an industry (medical and technological) grew up around addressing issues of infertility. This lead to what has come to be called ART–assisted reproductive technology.
One early ART technique was actually pretty simple. If a married couple couldn’t conceive and if the problem was the man’s sperm, then you could get sperm from another man and use that and presto–a child could be conceived. Further, the already existing law provided that a child born to a married woman was the child of the husband (see above) and so it all was quite tidy. Thus, the use of third-party sperm for married women didn’t really complicate much, legally speaking. It fit within existing law.
But it was the thin edge of the wedge–which is easy to see looking backwards. It’s only a tiny step from using third-party sperm with married women to using third-party sperm more generally and then it turns out you can use third-party eggs and then it turns out you can use third-party wombs, as it were. So in fairly short order there’s an astonishing array of mixed and matched situations and the existing law–the part about husbands being presumed parents–doesn’t cover any of it.
To make ART work a new set of laws were devised. Many–I think most–states enacted at least some of them. Generally speaking the ART-based parentage laws all revolve around parenthood being determined by intention. ART is all about the process of intentionally creating children and those who drive the creation–those who intend to create and intend to parent those children–become the legal parents.
This idea–that those who intend to be the parents should be the legal parents–is not one that had a place in the law before ART. And so in most places there are two separate sets of laws about parentage–one for children of ART and one for children not of ART. This inevitably causes trouble because, of course, children are blameless and aren’t responsible for whether they were conceived via ART or conceived any other way and thus, it’s hard to justify treating them differently. (Curiously, I’m not sure it’s always clear which group of kids gets treated better.)
This is, of course, only one way to slice it. But it is what I’ve been thinking about.