How The Law of Parentage Got To Be Such A Mess

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.

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59 responses to “How The Law of Parentage Got To Be Such A Mess

  1. My parent's donor is my father

    I agree that the law is changing in favor of intention versus biology. I do not agree that that is (necessarily) a good thing but then again I don’t think the law is a very good tool in determining right and wrong (morals/ethics) and principles.

    Have you seen these articles re: the legal trend of parent = intent?

    “A sperm donor’s rights
    A bill in the Legislature would give men legal recourse to argue for parental rights in some cases.”
    http://www.latimes.com/news/opinion/editorials/la-ed-sperm-donors-rights-california-20130712,0,5664641.story

    “Gay man confirmed as legal father of girl — even though his former partner is her biological parent”
    http://news.nationalpost.com/2013/07/11/appeals-court-confirms-gay-man-legal-father-of-girl-even-though-his-former-partner-is-her-biological-parent/

    • My parent's donor is my father

      And sometimes legal parenthood does not = intent:
      “Ind. court takes side of surrogate mom, But it overrules decision on legal father.”
      http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20130713/NEWS/307139976

      • I think determining parenthood by intention remains fairly controversial–especially as you move it away from the situation of anonymous sperm donor where it basically grew up. One problem is that (as we all know) intentions can change over time. I intend one thing today and another tomorrow. To make parenthood by intention work you have to pick one critical moment in time and make that matter more than any other moment.

        Another problem is that intentions are sometimes (often?) not matched with actions. I mean to go to the library today but I might not actually make it there. This is what worries me most. I’ll go with actions over intentions (almost?) every time.

    • I’ve followed a bit of those stories but things are all now way too backlogged. It makes starting up again hard, I must say.

      I think you are right to distinguish between descriptive questions (how is the law changing) and what I would call normative ones (how SHOULD the law change.) But on that last point, it is not so much that law is good tool in determining what is right and wrong, it is (at least to me) that law tells us what is, in the view of the state at least, right and wrong. Law sets out the rules. If law makes something legal/permissible (say surrogacy) then one way to understand that is as a judgment on the part of the state that surrogacy is OK. If instead law makes it criminal or makes contracts unenforceable then it is a judgment on the part of the state that surrogacy is not OK. Maybe what I’d say is that law is a reflection of some sort of state view of right/wrong.

      But there’s a bit of a feedback loop that I think your original comment does point to. Once something is permitted by law that does tell people it is okay. Which is to say that we do use law as a tool (sometimes) of figuring out what is right/wrong. To be concrete–WA just legalized use of marijuana. Surely this does send a message to people that using marijuana is okay? And just as surely the approval of the measure was a statement by the electorate that using marijuana should be okay. Law is both a guide and a reflection–it works both ways.

      None of which addresses the question of whether the law is “good” at any of this.

  2. I had a xiscussion with a woman raising a child who is the offspring of her husband and an anonymous woman. You know this person actually i bet. Anyway she is adamant that she is the one who caused this person to exist befause it was her idea to create a child and she chose the donor and put the whole project together. So she thinks she is the one who intended to create a child and that shes the one who conceived a child. She said the donor did not intend to create a child with her husband but she did.
    So I said really? Who went to the clinic first with the idea or making babies? You or the woman who donated her egg,? Who aigned up for reproductive therapy first because the form she signs for egg retrieval is no different than when you yourself were undergoing retrieval and ivf.. And long before you ever knew you you had a problem conceiving when you were still making like bunnies with your husband…that woman that donor knew she wanted to reproduce and she told the clinic she did not have a partner and asked them to fins her someone to reproduce witj someone to create offspring with and she had them put her profile in a book. she intended to create that child your raising long before you ever sid.

  3. good point marilynn but as long as we’re playing what came first i vote for the clinic. the clinic probably advertised for egg donors. the woman saw the advertisement and only then did she come to the clinic. so as long as we’re talking intent, i vote the clinic administration as the true parent….

    • Ki
      My dear can anyone else sneeze for your? Poop for you? Hear for you? Learn for you? No as much as we can dispatch certain responsibilities we can’t really get anyone else to do stuff like reproduce our bodies for us. Or exercise our rights for us. We can get others to raise our kids for us but we can’t get anyone to actually HAVE our kids for us.

      So I asked this woman who showed up at that clinic looking to reproduce with a stranger first you or her? That clinic helped her find a man to reproduce with – not the other way around. They found her a man to reproduce with and then the clinic assumed responsibility for finding someone to raise that kid because the clinic understood that she did not plan to raise her kid once it was born. She intended to have a kid waaay more than your husband – after all your husband wound up having 1 kid with an anonymous person she on the other hand has had 20 kids with anonymous men. You want to tell the kid they were not an accident and you are right about that nobody has 20 kids with men they don’t know on accident she absolutely wanted to create that kid that you are raising she just did not want to raise him and so he will be left with wondering why she would not want to admit that he’s her son. He’s her son.

    • I think maybe I haven’t been clear enough about what I mean by intention. It isn’t the intention to create a child–which I think you are right is shared by many people–doctors, technicians, the people who provide the gametes. What matters is the intention to be the parent(s) of the resulting child. And the clinic, say, never intended to be a parent. Ditto the doctors.

      For all that intention can be messy and problematic, there are easy cases. (I don’t mean you need to like these–I just mean they are factually simple cases and they demonstrate who intention is supposed to operate in this area.) So for example a single woman uses a sperm donor. Sperm donor has no intention of being a parent but is wiling to help by providing sperm. Clinic staff has no intention of being a parent. The idea with intentional parenthood is that the child has only one parent–the woman who intended to be her parent all along. If she has a partner/spouse who also intended all along to be a parent, then that person also gets to be recognized as a parent.

      I don’t think there was any notion of using intention as a means of assigning legal parenthood before there was ART, but it is in fact necessary to make at least some ART–that using third-party gametes–workable.

  4. There is this insipid concept that people bring up when they want to defend their natural right to be the first recognized mother or father of a child that is not their own offspring – that insipid concept is that the child was ‘born-to’ them. Because they gave birth or because they are married to the person who gave birth or because they are the boyfriend or girlfriend of the person who gave birth

    • I don’t think you mean insipid (which means sort of cloyingly sweet) but perhaps insidious? I’m not sure it’s that either. (And I don’t think I’ve heard anyone invoke this as a natural right, though I’m not sure what you mean by a natural right, actually.)

      I’ll certainly agree that some people argue they should be recognized as a legal parent because they gave birth and some people argue that they should be recognized as a legal parent because they are married to someone who gave birth. And in fact, in a number of places the law does recognized people who give birth as legal parents and similarly recognizes those married to people who give birth. I don’t think the arguments in favor of these positions are particularly insidious, though.

      • I meant weak argument, there is no there there – there is nothing backing up the words but their fantasies and a desire to get others to buy the hogwash

        Synonyms: anemic, arid, banal, beige, blah*, bland,characterless, colorless, commonplace, dead*, drab,driveling, dry, feeble, flat, ho-hum, inane,innocuous, jejune, lifeless, limp, mild, mundane,nebbish, nothing, ordinary, plain, pointless, prosaic,prosy, slight, soft*, spiritless, stale, stupid,subdued, tame, tedious, tenuous, thin, tired, trite,unimaginative, vapid, watery, weak, weariful,wearisome, wishy-washy
        Notes: sipid – of pleasing taste, flavor, or character – isthe opposite of insipid
        Antonyms: exciting, exhilarating, interesting, pleasing
        http://thesaurus.com/browse/insipid
        insipid  [in-sip-id] Show IPA
        Part of Speech: adjective

        • Fair enough. I think of insipid as being banal and blah and characterless(among the definitions you’ve got) more than weak–though I see that there, too. It just through me. Never seen the word “sipid” used but I’ll surely tuck that one away.

  5. “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.”

    This is not correct. Because ART would have been considered adultery if it were challenged, the profession strove successfully to keep the law out of it altogether. They did this through shaming the parents into non-disclosure; coercive signing of unenforceable contracts to prevent them from identifying the genetic father; and effectively cutting off any legal remedy for donor conceived adults who want their right to know their origins. They operated outside the law as opposed to the adoption agency that formalized the change of parental status by adoption. ART relied on secrecy and deception alone, not the laws. That is the source of the messed up inconsistencies of ART and parentage.

    I would prefer some form of legal parentage only if it could include a definition that the children would attain the autonomy to have access to our rights to know our full genetic information when we reach maturity. This would have to exclude the consent of our parents, the genetic parents, or the clinics. Our right to know our origin as must be beyond their control. Otherwise, I don’t care about the legal definition as having any meaningful impact on our lives as adults, only as a sop for our parents during the time of our minority.

    Your concern for the parental definitions is limited to a relatively short period of the lives of both the legal parents and their minor children. My concern is that we have an inherent right to know our origins as a part of our birthrights, on an equal par with citizenship for my whole adult life.

    Maybe this should be part of legal reforms that regulate ART. However, the mere existence or DNA genealogy sites (that nullify the attempts to keep genetic parents anonymous) should give the ASRM pause. All their policies will be made powerless when sites like DonorSiblingRegistry, FamilyTreeDNA, etc. continue to have great success at defeating anonymity. Just recently, I identified my genetic father and one of my half-siblings through FTDNA; no longer will I have to beg for rights from the powerful ASRM, when I can get it through such accessible technology. The same is now happening for many adopted people.

    • My parent's donor is my father

      “Our right to know our origin as must be beyond their control. Otherwise, I don’t care about the legal definition as having any meaningful impact on our lives as adults, only as a sop for our parents during the time of our minority.”

      I’m so beyond what *the “law” says” in this, I’m principally against the practice completely and totally, but absolutely agree with you on this point Bill!

    • congratulations on your discovery bill

    • Bill I admire you so much for locating YOUR family through FTDNA. I’ve spoken with you off line about your techniques and strategies because I have so many donor offspring’s FTDNA results and progress is slow and steady. I build out all the cousins trees slowly and methodically knitting their trees together trying to triangulate my friend’s position amongst their relatives. For anyone reading who is contemplating raising donor offspring – FTDNA and DSR are not foolproof ways to find your relatives quick and easy. It is tedious, laborious, thankless often fruitless labor hour after hour of digging.

      Everyone has a right to obtain their relatives birth marriage and death records – that is a positive right to know the identities of our relatives for health and other personal reasons. When parents fail to take responsibility for their children it interferes with the rights of every member of their family. There is no reason for anyone to have to go to such great lengths as you have gone just to be able to know who whour father and siblings are. Nor is there any reason for them to have obstacles to them finding you either. We need to make the law clear so that anyone who avoids being named as parent of their own offspring is breaking the law and anyone who allows themselves to be named as parent of someone else’s offspring is breaking the law. We have a court approved process for relinquishing parental control to guardians or adoptive parents and it needs to be followed if for no other reason than public health and to prevent human trafficking.

    • Why should you have to wait until you are an adult to know the truth about who your parents are when everyone else gets to know who their parents are from day one? Adopted people and donor offspring and anyone else with estranged parents have to wait to know who their parents are. Wait to know who their family members are. Why? What is wrong with simply recording each person as the offspring of the individuals that reproduced to create them? As parents go we know that everyone has a set of the genetic ones – the ones that are relevoant for medical purposes, the ones that establish who we are in relation to every other person on earth who ever lived or will live as either kin or non-kin. Should the CDC wait to collect accurate information on who your parents are too? At birth we’ll record the wrong people as parents and we will keep that information just long enough for it to undermine the validity of all kinds of research on birth defects and heritable disease and then after 18 years have past we’ll privately say who your real parents are. Privately so that you have no legal recognition of your relationship. If you were to take an ailing sibling into your home and care for them dutifully until they died you would not be allowed time off work under the family leave act you would not be allowed to claim your sibling on your tax return as a relative dependent and you would not be allowed time off of work to attend their funeral or grieve their death. That is not right. If your going to have to wait 18 years it had damn well better come with a brand new fully corrected birth certificate stating the name of your shared parent or listing the shared parent as unknown so that you would not be prevented from equal treatment as siblings under the law. I do not think any person anywhere should have to WAIT to have their medical records be truthful or accurate. They should not wait for their real identities until they’ve formed an alter ego that serves others in the capacity of child. These are people and their right your right to the truth starts the day you are born and nobody not even your parents should have the right to conceal the truth from you.

    • You might be right that it would have counted as adultery but what I meant to observe was that the way the law of parentage operated, a husband could readily become the legal parent of a child his wife gave birth to–and that’s true even if the child was conceived via adultery.

      I think you are right about the shame/secrecy points and the way the law was set up really assisted in this. If no one said anything–if the secret was kept–then undoubtedly and automatically the husband became the legal father of the child. As ART became more prevalent (and more commercially important?) the law changed to take more explicit account of it–to accommodate it.

      I’m not sure I understand your point about legal parentage. I think it matters greatly who the legal parents of a child are–they are the people who effectively control the child’s life, make the decisions, take the responsibilities. We need to clearly assign this to someone–the cases where it is in doubt are often heart-wrenching. When you say this is important only in a short period of time do you mean when the child is young? I suppose it is true that it is relatively short–15-20 years maybe–compared to a lifetime, but surely it is still critical.

      But none of that means I disagree with you about having access to the genetic information. That can be important to people throughout their lives, no doubt. And I think you are quite right to suggest that people will be able to gain access to a lot of this information one how or another in the very near future–or at least many will. So we do need to deal with the questions you raise. But doing that doesn’t (in my view) mean we have to say that identifying legal parents is unimportant.

      • “We need to clearly assign this to someone” – It shouldn’t be any of the people involved in crassly intentionally creating the child, even if they are related. Just like rapists never get to be a legal parent, neither should intentional unmarried parents. The child should be raised in some far away foster home like children of criminals are.

        • My parent's donor is my father

          John, you scare me sometimes. This is not logical or humane.

        • Thats incorrect. rapists are legal parents amd may sur fot custody or visitation upon release

          • Depends on the state. Some allow it, some do not. In my state a rapist can be TPR just for being a rapist unless it was statutory rape.

        • This would certainly be one approach although obviously a fairly extreme one. You know that my general project here is to try to articulate rules resting on principles rather than just outcomes? You could reach your result by having a rule that anyone who participates in the project is per se unfit to parent and hence, whatever rights they might have are automatically forfeit. That has the effect of meaning you have a lot of (legally) parentless children–all those born outside of marriage? I think that’s a touch result to justify from any sort of public policy perspective and I wonder where all those children end up–could your foster parents be unmarried?

          But really I think you’re proposal is just designed to startle and not to be taken that seriously? At the very least, I don’t think likely to be implemented.

      • “When you say this is important only in a short period of time do you mean when the child is young? I suppose it is true that it is relatively short–15-20 years maybe–compared to a lifetime, but surely it is still critical.”

        To me, I prefer to focus on the issues of adults, once we have become autonomous. However people work out the legal status of parents and children is critical of course, but this is something that people like me live with as adults long after our parents (all of them) are dead. I’ll leave the childhood focus and family issues to lawyers and sociologists to determine. My memories of my early life through my late teens are vague and probably revisionist. Everything since my mother’s disclosure is far more relevant to me and clearer in my memory. I can’t think how or presume to preach how it should be for others as children. I frankly think that attempts like Susan Golombok’s to understand the minds of DI children are presumptuous. If I were in her study as a child, she would have concluded I was very well adjusted but she would have been wrong. She could not have seen my inner turmoil as a teenager with deep doubts about my paternity nor have any clue how I would have become as an adult. I’ve been successful and quite happy. My legitimate anger about ART does not stem from any dysfunctional family issues, but simply from the injustice of the practices.

        What profoundly disturbs me about this discussion and countless others I’ve been involved with as an advocate for adults conceived through DI is that everyone keeps saying “what about the children” without bothering to extend those concerns to adults as they confront their issues for the rest of their lives.

        • Fair point–we ought not to ignore issues of adults. One complication is that there is generational change–as there is in many areas. Thus, the experience of a person who is donor conceived and is now 50 will necessarily be different than the experience of a person who is donor conceived and is now 20 because they grew up at different times. (You see this, too, with people who are lesbian and gay. Those who are 20 grew up in a different world.)

          I don’t say this at all to invalidate your point but in some ways to add emphasis. The problems are important and they are different.

  6. Here is inconsistent for you – A person who is the offspring of impoverished, unmarried parents is protected against identity theft and human trafficking and is protected against parental abandonment and is protected from the kind of black market adoptions and step parent adoptions that are within the purview of middle and upper middle class married couples who commission others to create and abandon children at birth so that they can be named as that child’s original parents. The government will hunt down every man a poor woman might have slept with in an effort to identify a child’s father. If he hides they will dna test his relatives to establish that if they are related to the child so must the missing man be. But the child of a wealthy single woman has no such protection from their Biological mother’s attempts at preventing them from receiving support of their father or a relationship with their father. The child of a woman who is married to someone other than their father is not protected from this kind of black market step parent adoption that prevents them from accurately being identified as related to their paternal family. Where is these people’s protection? Because they are seemingly born to people who are not needy not on welfare they then must loose their rights to be born free to have accurate medical records to know and be known to their own family to be correctly identified as the child of the people who reproduced to create them. We need some kind of backward affirmitive action to balance out the rights of seemingly privlidged people because they are owned and it does not matter if they are comfortable and loved and educated and should have nothing to bitch about….what happened to them should not happen to anyone its unfair and not an example of the equal protection this country is suppose to be famous for. Buying people and treating them well is still buying people its still wrong – being treated well and not being free to be who you really are is still wrong. It’s not OK just because have it easy in other areas of life. It seems nobody wants to listen because they are not starved ragamuffins hands out asking for chicklettes. Just because a guy has a white collar does not mean he’s above committing a crime. A lot of shady people have money and do their worst work in the light of day with a smile on their face.

    • the difference is not between wealth and poverty, the difference is ART. although ART users are more likely to have money this isnt always true.
      may i point out also that the state will not do dna testing for the poor, naturally conceived either, umnless their assistance is requested.

      • This is all I’m saying. The children we might consider the least advantaged in life with poor and unmarried parents are actually in the position most likely to have an honest accurate truthful birth record and a chance at actually being a legally recognized member of their own family. The laws are there about their mothers not opting out of support for them by their fathers but the state won’t get in there on behalf of the minor unless the mother requests financial assistance. If she never requests financial assistance because she’s married to someone who she’d like named as father or because she’s financially independent the child has no advocate on their behalf to obtain the truth for them, to set their record straight to help them become a legally recognized member of their own family for all time protecting them from being black market adopted by a step parent.

        I spend countless hours searching for parents of people in exactly that position. It’s incredibly frustrating to think that others in the same position having estranged fathers have the protected right to their father’s financial support and the protected right to a relationship with him for a sense of heritage and for medical purposes and the governments assistance searching for and testing and naming their fathers on their birth records.

      • Exactly, and the state does not do it out of the goodness… of… um… its heart? Well the expression doesn’t work out so well to refer to the state… but it’s being done to reduce how much government assistance the state will pay for. Not for fuzzy wuzzy reasons to make the child happier.

        • problem is Rebecca, and there is a legal term for this maybe Julie could lend a professorial hand – when execution of a particular responsibility has ancillary results that others come to depend upon such that there is a portion of the population that rely upon the execution of those responsibilities for something essential to their health or well being. Parent’s owe it to their kids first and foremost to be accountable for them but by virtue of doing so the center for disease control is able to obtain critical information about the reproductive health of its citizens and tax dollars pay for the collecting and managing of the information collected and for the medical research on birth defects heritable disease etc etc. Society as a whole benefits from the collection of biologically accurate parent identification and wastes money collecting biologically inaccurate information. Every single member of the biological parent’s family including the biological parent looses access to records about the relative the biological parent failed to be accountable for. The question is who really benefits from recording the names of people who are not actually parents on the original birth record of people? Why are we not requiring people to go through the normal adoptive process for the protection of not just the child but everyone involved when naming the wrong people results in a negative impact the the biological family members of the abandoned child and has a negative impact on public health truly undermining the validity of any research based on current vital statistics. Why would we entertain the idea that someone would legally not be responsible and accountable for the results of their own reproductive actions? I mean to the extent where they can not only offload their responsibilities as in adoption but I mean actually be granted carte blanche to pretend that they don’t have any children at all! Not a one! Not only that where else in law do we actually allow people to pretend that they did something they did not do – actually overlook people tampering with the facts of someone elses medical records for their own personal gain and enjoyment. Its nuts. The only motivation I can see is greed and egotism. It is a massive public health crisis and an unparallelled violation of human rights on a global scale

    • These are important inconsistencies and are worth thinking about.

      On the one hand, as a society we seem to be extremely resistant to supporting children. To the maximum extent possible, children should be raised privately and the costs born privately. (You have only to look at the unwillingness to provide food and medical care to poor children to see this at play.) So if a woman cannot support a child by herself, we want to find someone else–another private individual–to bear the cost. So for that purpose mere genetic link is plenty–it serves our purpose to make it so.

      On the other hand, if a woman can support a child by herself and doesn’t need assistance, then we may well support her right to make her own choices and so the genetic link won’t do to restrict her rights–by giving her another parent to deal with I mean.

      So yes, you are right about inconsistency and you’re right that it is all about money. Not at all saying I like this, but I think it springs from our unwillingness (as a society) to support children generally.

  7. Back to my point about long searches. I found out about my conception at age 37 in 1983. There had already been a century since the first DI was purportedly performed in the USA. In all that time the ART profession operated outside the law, and still does, without regulation or the governmental oversight that occurs in adoption. ART is much more public now and subject to pressure from recipients but still a tightly paternalistic system enforced under the ruse of “medical privacy.” Adoption anonymity was, and still is in most states, kept under public control as part of the process through the laws of states that sealed the records. ART simply ignored any need to record these conceptions/births and kept the power of self-regulation. My genetic father was not recorded since he was my mother’s OB. My search was indeed long, thirty years in fact. But the search through FTDNA was relatively quick, once I upgraded to autosomal testing. So, even if DNA searching can be long and tedious, it is nowhere nearly as long and futile as pleading for the clinics for information, digging for clues in public information, or pushing for legislation. I would have loved to have known the truth from an early age, but at age 68, finally knowing the truth is still liberating.

    Family law, determined through States Rights, is inherently messy and inconsistent. I don’t want to waste my remaining years trying to make the ASRM bend to the will of the people via legislation, given the factional gridlock at the state level. All you get is compromise as we see in those states that have a limited access to identity for adopted people with restrictions like contact and information vetoes.

    To me, it seems obvious that the DNA genealogy web sites and Wendy Kramer’s Donor Sibling Registry will continue to put pressure on the ASRM to face the reality of a regime that “guarantees” anonymity. That is now an illusion. My only hope is that the Ethics Group in the ASRM will eventually see the futility of anonymity and start to recommend policy changes based on that.

    • What if we stopped engaging in debate about regulating ART and started trying to legislate the behaviors that cost you your rights once you were born? I’m convinced that keeping the focus on reproductive behavior is a loosing strategy because we are talking about a time prior to the birth of anyone with a right to anything. If we focused on laws that equalized the obligations of all people with offspring so that all offspring had identical legal rights then NOBODY’S intentions matter. The rulse need to be the same based on things that all minors have in common at birth and that certainly cannot be the wants needs or desires of anyone or you will end up with one person getting information or contact with bio family that others do not have. Take it out of the realm of the psychological and focus on the boring concrete losses that you all experience but will obviously all feel differently about. The losses are real the violation of rights is real and frankly it does not matter if only one of you is unhappy about the losses, they are unfair and as such should not occur in a country that considers equal rights to be so important.

      I cannot encourage people with estranged parents enough to begin referring to yourselves using terminology that the rest of us use so people get use to thinking of you the same as they think of themselves. Then talk about why you have these various obstacles to everyday things like accurate medical records and try and get that fixed, not for donor offspring but for anyone with an inaccurate birth record. Honestly there was nothing remarkable about ya’lls conceptions 2 people reproduced. You really are not donor conceived you fall under an umbrella of people whose parents failed to take responsibility for them and in the end there is little you can do about that other than to say its illegal for anyone with offspring to do. Its still going to happen. We just owe it to anyone that suffers such a loss to treat them respectfully and protect them from opportunistic individuals that want to buy them or sell them or pretend to be related to them or give them false identities and make them participate in a charade.

      I believe with all my heart that these abuses can be stopped but only if we stop trying to regulate art and focus instead on the rights and obligations of people who are born. Donate sperm all you want your still the parent of your own offspring. No exemptions.

      • We need to have (I think) two different sets of rules. One is a set of rules for who gets to be a legal parent. The second is a set of rules for when those who are legal parents lose that status. In general, every state has the two sets of rules, although they can be confusing and incomplete. I tend to focus here on who is considered a legal parent in the first place rather than who gets disqualified later.

        The thing about all children being treated the same is tricky for a few reasons. Perhaps we agree that we will not penalize children for the acts of others. (I’m trying to avoid the word “parents” there.) This leads us to say that children of unmarried parents should be treated like children of married parents. And to a point we follow through here–but not fully, not really, because married people may be presumed to be parents where unmarried ones aren’t.

        But actually we clearly accept that children will be treated quite differently as a result of events far beyond their control. A child born into a poor household will not have the same life as a child born into a rich household and the kids have nothing to do with the household’s wealth.

        Where I’m going with all this is here: You can say that all children should have the right to contact with their genetic parents or you can say that all children should have the right to information about their genetic parents or you can say that all children should start with an entitlement to be raised by their genetic parents. These are all plausible stances and they all have the virtue of treating all children the same in at least this one regard. But it doesn’t seem to me that the “treat all children the same” stance necessarily leads to this conclusion given all the ways in which we do not treat all children the same. I can just as well say “we should treat all children the same and have them raised by the people who are most emotionally/psychologically connected to them.” That’s a different axis of sameness.

    • I think you may well be right that changes in reality will drive changes in legal policy around ART or legal policy will be left in the dust. The reality is that promising gamete providers permanent anonymity is increasingly difficult. Nothing makes me think that will change.

      What’s interesting is that there is change within the ART community, some of it driven by the technological realities and some of it driven by what’s been learned–from adoption and from people who must needs be open about using third party gametes–single women and lesbian couples. Using known or at least knowable providers turns out to bring other changes with it–the people willing to provide gametes under new conditions are somewhat different. Things will look different a year from now and five years from now and ten years from now.

      • ID release donors (where the child can learn the name and/or contact donor at 18) seem to have become a lot more popular. When I was reading single mom by choice boards most of the women posting about how they chose a donor considered it an absolute requirement that the donor must be open ID. I wouldn’t be surprised if they become the majority of donors.

        • Why is it necessary to wait 18 years for them to be in contact with their biological father when other people get to know the identity of their biological fathers right off the bat? These are the inconsistencies that are so striking to me? Why are we trying to cut some kind of compromise between having their fathers be involved and responsible for them, and having them be anonymous for all eternity? He and his relatives are either important or they are not important. Evidence weighs heavily on the important side and I’m not talking about the touchy feely psychological stuff that can be dismissed by someone saying that everyone feels differently, I’m talking about the cold hard plain facts of having accurate medical records, full rights to be recognized legally as his child allowing them access to their relatives vital records and vice versa, not to mention the financial benefits of support and inheritance and having a whole and authentic identity on the record, right now – not at some point in the future. The willing to be known donors are are super but – not such a great deal for the kid though, its not like their birth records get corrected. Its not like their parent is ever legally their parent, legally connecting the parent to the child and the child as kin to all the parent’s relatives. They remain officially, historically non existent and not worthy of having their existence as a living breathing member of their own family and descendant of their own family. The willing to be known donor is hardly just or fair considering there is absolutely no reason why they should not be held to the exact same standard of care as anyone else who has offspring. Really willing to be known I use to think was enough. 4 years into helping families separated by these completely out to lunch parents that donated their genes and I cannot say emphatically enough that ending anonymity or choosing wtbk donors is just insulting its all just insulting. It’s like saying “How can I make you more comfortable while I abuse your human rights and demean your existence as a human being and member of your own family? Cause I’m gonna keep doing it so you might as well get use to it and be grateful for the bones I toss to assuage my guilt and to stop that incessant whining about your rights”.

          • Except not all naturally conceived children get to know that either. A minor can’t request their birth certificate to find out information on an absent parent. There isn’t a right to an accurate medical record there either. If the mother doesn’t know, or just says she doesn’t know, and the father never returns, that space will be blank forever. And the state won’t try to find a known/possibly known but absent parent unless the other parent or the guardian of child asks them to do so. And not everyone shares your views of what is important. I feel the knowledge is what is important, not the legal relationship. Not everyone would define family the way you do either.

          • It isn’t necessary to wait, or at least, it isn’t always necessary. Depends on the conditions under which you get the gametes. Parents may have access to the information and may provide it to their kids as they think their kids want/need it. There’s a host of possibilities out there. Some kids grow up always knowing where the gametes came from. Some kids grow up knowing the people. Some kids (and/or their parents) don’t want the information until their older.

            Perhaps we can agree that it is better to have a wide range of options but I think the actual delivery of information to a child (and I mean “child”–like under 18) is really up to the parents. I know I have a lot more faith in people who use third-party gametes than you do, but I am quite convinced that they do want what is best for their kids and if they have the info will figure that out.

        • It seems clear to me that this is the way things are heading and I would think that, as with the move towards open adoption, we could all agree that it is a good thing. The move towards knowable donors is, I think, in part fueled by experiences from open adoption and also by the articulate calls from those who are donor conceived and do not have access (or easy access) to the information. People using third-party gametes do, after all, for the most part want what is best for their children, just as most people contemplating parenthood do.

          I think it helps if the choice to use third-party gametes isn’t stigmatize. (Would it be more clear to say it hurts when we stigmatize the use of third-party gametes?) Stigma means that people feel shame and hence, look for concealment–to hide. Just as it is better for adoptive parents to be honest and open with their children, so it is better for those with donor conceived kids. Or so I think, anyway.

          • Never forget this Julie that adoption is one solution to the problems caused by family separation; the terms of gamete donation cause family separation.

            Parental abandonment is a requirement of the gamete donation agreement. Adoption is a way to legally obtain parental authority over another person’s offspring. A parent has to fail to take care of their child in order for an adoption to occur. There are adoptive parents raising the children of donors too. Look at Beth who is a commentator on the current Huffington Post Live clip about donors. She and her wife are raising her wife’s child that she conceived with a man who ultimately gave his child up for step parent adoption. Beth refers to him as a known donor and she is quite proud of the fact that the child she’s raising will have an opportunity to talk to him at some point if they so choose. This is a hollow shallow nod to the loss experienced by that person. These kinds of adoptions should not be allowed to go through because Beth and her spouse actually wanted this child’s father to abandon her to relinquish her for adoption. They in fact paid him to do that but it is neither here nor there. Even if he did it for free he still is treating his child like an object – in fact his child is the object of a private contract where he promised to give up his parental obligations so that Beth could take over. Adoptions should never be allowed if there is any evidence that the child is the object of some kind of agreement or that the child was commissioned by a couple. There should be no adoption by people who actually wanted the child to be separated from his or her parents. Adoption should only be allowed to people who had nothing to do with the reason the parent is relinquishing control.

            The openness in adoption is fantastic and it solves any resentment problems between the adopted person and their adoptive parents only if the adoptive parents had nothing to do with their family being separated. Of course if they wanted them to be separated from their family the way that happens when people mate with gamete donors all that openness does is make it be so that they know the truth – they have one parent who thinks the world of themselves and their partner and does not give a damn about the family they separate the child from. People who want to separate a family in order that they can build one for themselves are able to do it by convincing themselves that there was no family in existence to separate because no caregiving ever occurred and the only connection is genetic inheritance. It is easy to diminish the significance of being someone’s biological child when you have no biological children yourself. It was so hard for some people to come to terms with never being able to have their own genetic child they say they mourn the loss of their genetic children before moving on to having to ‘use a donor’. The children of donors have to say goodbye to their genetic family that actually Its the height of arrogance.

            • I think one could say that adoption in a solution to the problem of an unplanned pregnancy. Gamete donation doesn’t result in an unplanned pregnancy–quite the contrary. It results in an extremely planned pregnancy. Is this important? I think it can be. It’s a way of looking at it that makes adoption and use of donor gametes quite different. But of course, one can say that the difference isn’t important–that it doesn’t matter.

              I’m not sure what you mean when you say that adoption is a solution to family separation. What is family separation? You could have a man and a woman who together conceive a child but conclude they cannot raise that child. They could decide, together, to place the child for adoption. I don’t see quite how adoption is a solution to family separation in that instance. (I do see that you can say that the child placed for adoption is separated from the family, but then it seems to me that adoption is the cause of family separation rather than the solution to it.)

              I don’t mean to go round and round on this again, so I’ll just say that I don’t agree that being a gamete donor requires parental abandonment because I don’t agree that the donor is a parent to begin with. NO parent/no parental abandonment. Maybe if you say “genetic parent”–but even then you know I’ll quibble about “abandonment.” This is the core thing we disagree about revisited again.

              Beyond this, there are many aspects of your comment I could respond to and that are worthy of discussion, but I am afraid I do not have the time just now. To note just a couple–I don’t know the Beth story you refer to but I’m pretty sure I’d read it differently. I don’t think it is true that you have to fail to take care of a child in order for the child to be adopted. You could make a decision that you won’t be able to take care of a child and decide to place them for adoption before you fail.

              Finally, it is true that adoption and use of donor gametes both end up with people raising kids who are not genetically related to them and are therefore related to someone else and might therefore be described as someone else’s offspring. That’s to agree that there are similiarities. There are also differences, of course. And even within the two categories (adoption/donor conception) there is wide variation. While the noted similarity is important I don’t think it means that the two practices are essentially the same. Again, I think we’ve been over this in some other posts. And I must move along to get through comments because I really do mean to try and get a post up today. (Fingers crossed.)

  8. i read a sperm-recipient contract which doesn’t actually promise anonymity but the recipient sign that she will not make any effort to discover the donors identity and if so she will be legally liable for any embarrassment or other adverse effects. sound threatening enough?

    • It certainly could sound threatening, but I suppose if the woman is sure she’ll never want to inquire (or at least believes she is sure) it seems reasonable enough. What I wonder about (it’s the irrepressible lawyer thing) is whether such an agreement could possibly be enforceable. I mean, suppose time goes by and she changes her mind and finds the donor’s identity–could he really sue? (This doesn’t speak to your point about whether it sounds threatening, I know, but rather to whether it would really operate that way.)

      I’m not sure about the answer there but I am sure that she cannot bind her child–no matter whether the contract is signed before conception or after. The child has its own rights on this point. Thus, the donor’s guarantee is at best limited.

  9. Dan in Tennessee

    The original question here is “how the law of parentage got to be such a mess.” Most of the comments have focused on ART, which accounts for a relatively small number of pregnancies (relatively speaking of course). I understand that many of the comments are from folks who have a lot invested in ART, but the bigger issue goes back to what Julie wrote about the historical perspective, i.e. the two categories of children born in marriage as opposed to those born out of marriage. In my opinion, the law of parentage became very complicated after Watson and Crick discovered DNA because it was then possible to state with 99% probability who a person’s true biological father is –no matter the marital status. Most of the big US Supreme Court cases on this topic from the past 40 years, even the ICWA decision this summer involved fatherhood, i.e. paternity with people who are having sexual relations outside of marriage.

    • I think Dan you make an important point. ART is actually a pointless thing to talk about. We should be talking about actual born people and what their obligations are to their own offspring and to society if they have offspring.

      • I don’t take his point to be that it is pointless to talk about ART. Rather I think it is about keeping things in perspective and not giving more weight to something than it is due. When we talk about ART we do actually talk about born people–who are the legal parents of a child conceived by a couple using third-party gametes, say?

        It is true that some ART–the techniques that use third-party gametes–would be much less interesting to people if legal parentage were always determined by genetic connection. I take it this is your underlying point. If a sperm donor, say, were the legal parent of a child who would use a sperm donor? This, too, is good to keep in mind–ART only works as an industry because we do not use genetics as the test for legal parentage.

        • No no – we do do confirm the identity of people’s parents based on tests and criteria that are suppose to establish who caused the child to exist. We just do it inconsistently which is why this area of law is such a mess and it needs to be universal so that it is always the same criteria for confirming who the parents are

    • It is very striking how ART–which is surely the exception–has exerted such a destabilizing influence in the law. (Actually, even as I write that I wonder if I’m overstating the facts. Has it really been so destabilizing?)

      And you are quite right to identify the understanding of DNA coupled with the rise of the simple DNA test as equally (if not more) destabilizing. Some certainly would say the marital presumption was used in lieu of DNA and thus serves to purpose anymore–so that all should give way to DNA.

      In fact, I think there are three twined developments that have lead to our current mess. One is ART–which is perhaps part of a larger move towards fully planned families–deliberately created when/where wanted by/with those who want them. A second is the DNA stuff you raise. And third is the increasingly tolerance of (and therefore proliferation of) family forms–from lesbian/gay families to single parent families to blended post-divorce families, etc. When the law tries to accommodate all three (and it does try), it gets messy. Not really surprising that it does, either.

      There’s this book I’m meaning to write and that paragraph I just wrote is my thesis statement. (That’s just so you all know I’m saving a spot in the queue.)

  10. Dan in Tennessee

    Marilynn: I did not mean to imply that ART is unimportant, only that it is symptomatic of the bigger issue. Before the discovery of DNA, the question of a child’s parentage would have been “to whom is the mother married” or “is the mother married?” Now the question seems to be “who is the parent?” That’s a lot murkier.

  11. Dan in Tennessee

    I look forward to reading that book Julie. It seems to me that another important issue must be the balance between best interest of a child (which is, admittedly, an extremely subjective and vacuous topic) and parental rights, i.e. the right to the care and custody of a child, which includes the right to keep others away from a child. On some level the courts are constantly hashing this out and the pendulum sometimes swings one way and sometimes another. I ask myself which way it swung as a result of the latest Supreme Court decision?

    • Indeed, the question of where the best interests analysis (subjective though it may be, as you say) fits in is critical. In general I think we (in the US) try not to let the best interests analysis determine parentage in any given case. So for instance, in the ICWA case (Baby Veronica) the court doesn’t think “what would be best for Veronica” and use that as a way of assigning parentage. Instead, we try to make general rules for parentage with an eye towards the well-being of children and then just apply those general rules to specific cases.

      There’s a good reason for doing this. We (again, in the US) have an idea that there are parental rights–that parents have some special status with regard to their kids and the state cannot unduly interfere with their judgment and decisions. If you let the state interfere anytime some judge or some other person thought there was a better way of doing things, that would essentially gut parental rights. So the judge cannot reassign parentage just because she/he thinks someone else might do a better job for that child.

      It’s complicated and confusing, I think, and I’ll try to come back to this again soon. But you’re right that it is tricky to get the balance right and the pendulum does swing.

      • “There’s a good reason for doing this. We (again, in the US) have an idea that there are parental rights–that parents have some special status with regard to their kids and the state cannot unduly interfere with their judgment and decisions. If you let the state interfere anytime some judge or some other person thought there was a better way of doing things, that would essentially gut parental rights. So the judge cannot reassign parentage just because she/he thinks someone else might do a better job for that child. “
        Unfortunately I have to agree with this. Who decides the best interest of the child is a huge question. I say unfortunately because of the foreseeable consequences of probable abuse, even when a severely abused child is released by a hospital back to its parents. SCOTUS (CJ Rehnquist) said that “the Due Process Clauses generally do confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” [DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)].
        In that case, the mother of Joshua DeShaney sued Wisconsin, Winnebago DSS, and a hospital for releasing her four-year-old son back to the custodial father. He later beat his son so severely that he ended up in an institution with a permanent vegetative state. Social Services often deprive the rights of abusive parents, sometimes on flimsy evidence, but the child has no “positive right” that guarantees Social Services has an obligation to do so. Tragedies often result from their decision to send a child under their temporary custody back to its parents. Rigid rules are not just tricky, they’re unworkably sad. Just ask any attorney that acts as an advocate for children in Social Services.

  12. I’ve boiled it down to this; genetics is not what is important ethics in obtaining control of a child is what is important. Biological parents are not necessarily good parents but the origin of their parenthood is not one that can be considered unethical they did not get the child or their parental relationship from someone else therefore there is nothing toinvestigate – they are the begining of the chain of custody and as such are very important to document as parents because their actions are either ethical and responsible or unethical and negligent. Anyone raising a child that is not their offspring should have to demonstrate that they obtained possession and control of the child without having enticed anyone into giving up their responsibilities either before or after their offspring is born. Any private contracts and any evidence that someone commissioned someone else to create their offspring as a gift or for sale or for trade should exclude them from raising the child. The state should have to find people who did not know the bio parent and who paid nothing etc. Also bio parents should not get any reimbursement for their pain and suffering associated with reproduction and relinquishing their parental obligations. Like donors could only be reimbursed if their contracts were for research purposes only and not reproduction any clause where they agree not to raise the offspring born of their donation should preclude any reimbursement for suffering since its a ruse.

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