Tag Archives: genetic link

The Problem With Hierarchies of Parental Rights

I’m returning to a theme I’ve written about before here.  I’m doing this for two reasons.  First of all, before is about four years ago and many readers may not have been readers then (or if they were, they may have forgotten about this).   In addition, I am a different person today than I was then (then being 2010) and so perhaps I have something different to say.

In fact, I think the same thing has moved me to write today as moved me to write in 2010:  Michael H vs. Gerald D.   I won’t discuss it in any detail here.  You can read the opinions (though it’s not an easy slog) or you can read the earlier posts about it.   But for today’s purpose a quick outline will suffice.

Carole was married to Gerald.  She had an affair with Michael.   She got pregnant and Victoria was born.   Victoria is (let us assume, as it was a 98% likely proposition) genetically related to Michael.   Carole and Victoria live for a time with Michael and for a time with Gerald, but eventually it seems that Carole and Gerald reconcile and settle down.   Continue reading

Musing on Marriage and Parenthood

The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child).   Over the years there’s been a lot here on the blog about the connections between those two relationships.    But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.

First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples.  There’s been a lot on the blog about the marriage cases and the role parenthood plays in them.   The very recent MI opinion is a fine place to see this.

On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage.   Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share.   And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion. Continue reading

Looking Back At Surrogacy

I’ve been working on a piece of writing–something a good deal more extensive than the blog generally allows–about surrogacy.   It’s an effort to look back and think about how views on surrogacy (and the practice of surrogacy itself) have changed over the years.   Imagine my surprise when this video appeared on the NYT website early this week.  It’s worth a look.

It’s nearly 30 years since Mary Beth Whitehead entered into a surrogacy contract with William and Elizabeth Stern.  Baby M is grown and has children of her own.  And the world has changed in oh-so-many ways.   Does any of this matter in how we think about surrogacy?

The New Jersey Supreme Court’s decision in Baby M shaped how we (as a legal culture) thought about surrogacy in a lot of ways, even though it was a decision binding in only one state.    But it was generated in a different time, against a different background.  That doesn’t mean that it is meaningless, but it may mean that our understanding of it has or will change. Continue reading

Update on UT/CO Unmarried Father Case

My thanks to TAO, who pointed me towards this story in a comment to the last post.   I had written about the case two years ago, but would surely have missed this chance to follow up on it.

I’ll leave folks to go back and read either the earlier post (I just linked to it) or the article for the facts.    They are rather long and complicated.   But the short of it is that Robert Manzanares is the genetic father of a six-year old girl who has been living with a Utah couple her entire life.   (The people raising her are actually the brother and sister-in-law of her genetic mother.)

Regular readers here will know that Utah is a state that is very hard on unmarried genetic fathers.    As a matter of policy the state would much rather have children raised by married couples.  Hence, it is easy for a woman to give birth and place a child for adoption in UT and it is hard for a man who is the genetic father of the child to stand claim a right to raise the child himself.    Continue reading

A Different Presumption–this one from Mississippi

I’ve got a couple of recent posts up about the marital presumption.  I thought I’d add another case–this one from Mississippi.  It’s not a marital presumption case, as you can see.   (If anyone can help me understand why it isn’t, I’d be grateful. Is it possible that MS no longer uses the presumption?   Do tell if you know.)  But the facts are similar to the recent CA case I wrote about and there is a presumption at work.

So here’s the story.   Anne and Jake had an intimate relationship before the married.   But during that time, apparently unbeknownst to Jake, Anne had a one-night stand with Tommie.  Anne got pregnant.  Tommie suspected the child might be his, but he knew about Jake, too.  Jake didn’t know about Tommie and so assumed that he was the father of the child.

Anne and Jake got married in June 2004 when Anne was 17 weeks pregnant. Continue reading

Another Instance of the Marital Presumption–this from CA

A little while back I wrote about a Michigan case involving the marital presumption.  (Briefly stated, the marital presumption means that when a married woman gives birth to a child her spouse (and these days that can  mean her wife) is presumed to be the legal parent of the child.    That’s enough for now (you can read up on it in the earlier post).  I’ll just also note that 1) all states have some form of the marital presumption and 2) it’s a presumption about LEGAL parentage–who is the legal parent of the child.)

As I’ve said, different states have different versions of the presumption.   It can be easier or harder to rebut, depending on where you are, for example.   MI, we now know, has a version that allows a husband to invoke it even if his (ex-)wife doesn’t want him to.  This means he can claim legal parentage of a child that is genetically related to his wife and another man.     Continue reading

And then there’s media coverage of studies……

I wrote a recent post about studies–social science studies about parenting, etc.   I sort of feel like I’m in a “can’t live with them, can’t live without them” sort of spot–they frustrate me in many ways, but I’m not prepared to say we don’t need them or shouldn’t consider them.

Perhaps the point I’d make (though you can just go read that post) is that we need to view them critically–all of them, even the ones with conclusions we like.   There are, after all, better and worse studies.  Continue reading

How Do We Find Parents At Birth, Part II

I’ve been meaning to get back to this thread I started so confidently with “part I.” Without a “part II” it seems sort of silly. This post will make more sense if you go back and read that other one first.

Just the same I’m doing a brief recap.  Maybe it’s like a running start.  Maybe I’ll say something slightly different.   I’ll try to summarize some principles and then go forward.

I generally support the legal recognition of functional/de facto parents.  What I mean is that I think the law should recognize the people who actually function as the social/psychological parents of a child as the child’s legal parents.   My primary reason for endorsing this approach is that it is, in a general way, good for children.   I believe that children need stability in those primary relationships.  (I think I could back this up with a lot of studies, by the way. )   So the law should protect them.

Now there is another thing about the functional/de facto approach.  Continue reading

A Return to the Larger Project–How Do We Find Parents At Birth? Part I

I’m going to turn away from the current discussion (which might have run its course or gotten out of hand) and return to something I’ve thought about for a long time. I’ve also written about it here and elsewhere–with something less than totally satisfactory results.

This is rather a large topic to tackle–perhaps not so well suited to the blog format (where believe it or not I try to keep things in manageable bites). The best I can do is to put it in parts, I think, and to try to make each part enough of a whole to serve. But I have taken the liberty of calling this one “Part I” because of my firm conviction there will need to be a “Part II” and very likely more parts beyond that. (And no, the Roman numerals are not an homage to the Superbowl, but since I’ve brought it up–Go Hawks!).

Okay–so here we are. As I trust everyone knows, the main topic of this blog is how we do and should determine legal parentage. And as most/all of you also know, I have a pretty firm view on this: I’m inclined towards using something at least akin to a functional or de facto parent test. In other words, if you have acted like a parent–if you have in fact created a parent/child relationship (defined psychologically and socially) with a child, then the law should recognize and protect that relationship. It should do so primarily because this will generally serve to advance the well-being of children who must be able to rely on those relationships which sustain them. You can see some cases discussing this if you look back to a couple of posts about new cases from WA that I put up in late December. (It’s hard for me to link to them just now. I’ll do that later today when I’m on a different machine.).

Now this approach–the functional or de facto approach–works fine with kids who have been around for a while. If you’ve got a ten-year-old you can see who her/his psychological/social parents are. You can do that for a three-year-old, too. And even a six-month-old. But what about a new-born? Who are the legal parent(s) of a newborn?

Let me start by noting that I do see that we want newborns to have legal parents. Maybe I should examine this proposition more closely than I am right now–I could always come back to it. But given that legal parents are those charged with both responsibility and decision making for the child, it seems to me we want someone in the goal from the get go.

Now it’s easy for me with my functional test to get to 1 legal parent for the newborn–the woman who was pregnant/gave birth. I won’t say there is a child before birth (note there’s a big issue I’m skipping over–when is it a child–but I want to go forward here). During the course of the pregnancy the woman who is pregnant bears enormous responsibility for future well-being of the child-to-be. She stands in a unique relationship to it. And I’d bet that if you took a newborn and put her/him in a room with four women, one of whom was the woman who gave birth to him, you’d find some signs that the newborn distinguished her from the other women. (Anyone know if this is actually true? I haven’t seen a study, but I’m still convinced it’s likely so.).

I do understand that even this point–which for me is a simple starting point–is controversial. It means that pregnancy matters. It is not the position taken by most (all?) of those who advocate for the use of surrogacy. But I find it impossible to say that pregnancy doesn’t matter. Indeed, consider what women go through to be pregnant/give birth–sometimes to children they will have no genetic connection to.

Anyway, let me move off of that starting point (with the understanding that anyone can drag me back there to discuss further.). The question for me is whether there can be a second legal parent at birth and, if so, how is that person identified.

I see the appeal of having two legal parents at birth. Partly this is about meeting people’s expectations–lots of time pairs of people want to be parents together. Partly it may just be copying the traditional (and generally biological/genetically based) model. But I’ve had trouble getting there. One obvious way–to count the genetic father as the second legal parent because he is the genetic father–is entirely unacceptable to me. (I don’t mean that a genetic father cannot be the second legal parent. I just wouldn’t award him that status based on his genetic connection alone.). So I wrote an article that is called “Counting from One” that actually suggests that maybe we should just start with one.

But I’ve never found this wholly satisfactory. And so I’ve been trying to work out a different approach. Again, there’s an obvious candidate–the intentional parent. Suppose there is a second person who had intended to be a parent to the child and that intention was shared by the women who just gave birth. A doctrine recognizing intentional parents could give that person legal status at the birth of a child.

But I have problems with intention alone (and “alone” is a key word here) being a marker for parenthood. And that’s where I’ll take up next time.

Thanks for bearing with me.

A Timely Essay on How DNA Might Matter

Here’s an essay that I think is a nice complement to the last couple of posts.   It’s from the NYT Motherlode blog and is part of a series by Amy Klein.    In this one (published a week ago) she considers whether using a donor egg would matter to her.

There are several things about the essay that I think are noteworthy given the recent discussions here.   Most obviously, this is an instance of an individual making precisely the sort of calculation I think one needs to make–weighing the pros and cons before proceeding with something obviously serious.

You can also see consideration of both sides of the balance.  Continue reading