In my last post I tried to set out the main strength of the de facto/functional approach to determining parenthood.   I do realize that the approach also has weaknesses–indeed, it is this awareness of weakness that started this particular thread. But I think it is also useful to compare the de facto/functional approach to other possible approaches and to look at the strengths of each.

In doing this kind of comparison i think it is essential to be as explicit about all assumptions/arguments as possible.   So, in the last post, I tried to really pull one argument in support of a de facto/functional approach apart so you could see the pieces.   It’s not so much that I expect this to persuade everyone, as that I figure we can at least know exactly where we disagree.

Here I want to try the same thing–pulling apart arguments–with one of the other possible approaches to parentage.   (As an aside, it seems hard to do this compare/contrast stuff well in a blog where I try to keep individual posts fairly short.  So perhaps I’ll have to take some other tack shortly.   But it’s worth a try.)

Because it is a simple idea, I’ll take up the genetic link approach first.   What I mean by this is that the people whose genetic materials create a child should be recognized as the parents of a child.  

One thing this means for sure is that every child would have two parents, one of each sex.   And if the genetic link is offered as the exclusive basis for parenthood, then you could go a step further and say that every child has two and only two parents.

You can certainly argue that the certainty that all children will have two parents is a strength of the genetic link approach.   It ensures that there will be no parentless children–and perhaps more specifically, no fatherless children.  Parenthood could be simply and clearly established by testing possible candidates for parenthood and ruling them in or out.

Of course, it still might be hard to find the right person (the right man) to test.  But once you found him, you’d know it.   And in this regard there’s a sharp contrast with the de facto/functional test.   Any sort of de facto/functional test will be more difficult to apply.   Someone could be almost, but perhaps not quite, a de facto parent.   Or facts about who did what with the child could be disputed.  DNA tests won’t have that problem.

I think this is a fine, pragmatic argument for the genetic link approach.   The question, in my mind, is whether that pragmatic sense–this is an easy test to apply–is enough to justify adopting it.   It’s probably obvious, I’m not persuaded of that.  There are lots of times in law that particular tests would be easy, cheap and certain, but still are not “right.”   (For example, in child custody cases, one could just flip a coin.  Think of the time and effort that would be saved.)

There needs to be a more substantive argument in favor of a genetic link approach.   And indeed, there are some arguments to be made.  Some are sketched out a little bit in earlier posts.  If you follow the thread that starts around here you can find them.   I’ll try to draw this part together next time.

As I said in my last entry, I prefer the de facto/functional parent approach to the determination of parentage over the other possible approaches I’ve discussed in this blog.  (You can go back to find the other approaches I’ve discussed–there’s the DNA/genetic relationship approach, which I’ve talked about a some length in the context of the one-night-stand guy, and there’s the marriage-to-a-parent approach, which has come up repeatedly, but perhaps hasn’t been such a clear focus for analysis yet, and there’s the intention approach, which I’ve mostly discussed in the context of surrogacy.)

My preference for the functional/de facto approach isn’t new.   It long predates this blog.  (You can see this from some of my academic publications, should you care to look.)   Given this long-standing, pre-existing preference its might seem striking that it is only now, over six months into this blog, that I’m actually getting around to systematically explaining the basis for my preference.  I suppose it is always easier to criticize rather than advocate–to display the weakness of other approaches rather than the strength of the one I actually prefer.

Be that as it may, I have finally worked my way round to the strengths of the de facto/functional test, which I briefly set out in the last post.   Having done so, I now see the need to do a more general comparison of the relative strengths of the various possible approaches.   While I think that I’ve touched on a lot of this in earlier entries, it will be clearer and easier of they are laid out side by side.  

That’s a task that will probably take several entries which, given the summer schedule, will last a bit.   And I’ll start now.  To the extent that I can I’m going to try to spell out all the assumptions I make along the way, because I think that makes it easier to see where the potential trouble spots are.

As I said yesterday, I think the strongest argument in favor of a de facto test for parentage is probably that it protects the well-being of children.  There are admittedly a couple of assumptions you have to make to connect up the argument, but they seem to me to be pretty solid ones.

First, you have to assume that the well-being of children is a legitimate, perhaps even an important, social goal.   That seems to me to be pretty safe to say.  (Some might disagree, I suppose, but I’d just agree to disagree about that.)  Second, you have to assume that the well-being of children is generally served by protecting/continuing the established parent-like relationships that they have.   Perhaps it is better to put it the other way around–disrupting substantial relationships children have with those who act as parents is not good for the children.   Here, too, I feel fairly confident.   There’s lots of social science research that strongly suggests that stability in these relationships is beneficial.   That’s also my intuitive sense.

My next step (next post) will be to try and measure up these points against some of the other possible tests for parentage.

I do realize that all of this is, in a way, stalling for time.  Eventually I will work my way back to that sticking point.  I actually think I’m beginning to see a glimmer of hope there, but it’s going to take a while for me to think that through.   Meantime, stay tuned.

When I started this latest thread, I had hopes that with a little momentum I would be able to work through this one place that I always seem to get stuck in my arguments.   Alas, no such luck.  I have come to the place where I always stick and, once again, I am stuck.  

Here’s the problem:   

I am, as you will know if you’ve been reading this blog with any frequency, a proponent of a functional parent/de facto parent sort of test.   (I suggest you read back in this blog to really get the meaning of this, but the idea is that law follows and recognizes the realities of life–if a person acts like a parent of a child for a sufficiently long time, the law should affirm the relationship.)     

To really get to the problem I need to lay out the argument in support of a de facto test, which I’ve sort of done here and there, but perhaps not clearly and cleanly enough.   At least two separate and significant arguments support a de facto or functional approach and it’s important to spell them out separately.  

First, it is best for the children involved if the law supports rather than disrupts the networks of human care that surround them.   If a child has a child/parent relationship with an adult, then the law ought to recognize and protect that relationship in order to protect the child’s well-being.  The underlying assumption here–one which can be supported with lots of good social science stuff–is that stability and security in these core human relationships is a basic human need.   While there may be instances where the disruption of these critical relationships is necessary, it should hardly be the rule.  Thus, the argument would go, the law should generally recognize these as parent/child relationships and then employ the ordinary existing law to investigate whether disruption is warranted.  

The second argument in favor of granting legal recognition to existing relationships is grounded in fairness and equity.  This is an argument that stands independent of the “better for the child” argument above and is focused primarily on the adult’s perspective.   Generally, if I invest in and create the required relationship with a child, it is only fair to me to recognize that fact.   Let’s assume for the moment I didn’t kidnap the child or anything like that, but instead act openly and with the support of whatever other adults their are in the child’s life.   It’s not fair to just pull the rug out from under me in the end and say “hey, you’re no one special.”  This would most clearly be true if I acted with the encouragement of the child’s existing parent(s).   (That’s the situation you see in the lesbian other mother cases I’ve discussed from time to time.)   If a parent encourages me to assume the shared responsibility for parenting and if I do so for some significant period of time, then the original parent should be, in fairness, bound by her/his actions, which I relied on.  

I’ll stop here for now.  In order to understand my troubles you need to see first, why I like the functional/de facto test.   These are the reasons it’s hard to just abandon it and turn to some other mechanism.   Next time I’ll return to what the problem with it is.

I realize I’m not even managing to keep up with my quite leisurely summer schedule.  I can only hope that those of you who read this are also enjoying a leisurely time.   And I can invoke a minor back injury that has kept me from being quite so on top of it.   In any event, the schedule has slipped. 

I’ve not really been doing current events, because I cannot really get to a computer on line with any frequency, so there’s basically no chance my events would actually be current.   But this one is a bit hard to resist. 

From today’s (yes, actually today’s) New York Times comes this story about governmental efforts to encourage Russians to marry and have children–preferably sooner rather than later.   There’s really not that much that connects with my blog here, beyond the simple point that becoming parents can be understood as a political act–in this case, as a patriotic one.   Plus, it is interesting to see that the concern about two parent families, more particularly about the role of fathers in families, reaches beyond the borders of the US.

Really the political nature of parentage isn’t new at all.   The political nature of parenthood is readily apparent in the struggles over lesbian and gay parentage, some of which I’ve discussed here.  But at issue in Russia is the most conventional configuration of parentage–married male/female parents.   And as the story makes clear, even that can be, in the right place and time, political.