Which Man Is Father To The Child?

There’s an excellent and fascinating article in the New York Times magazine (publication date tomorrow, but on-line now.)    It’s  a look at a problem that has arisen with comparatively easy DNA testing.   What happens when men learn that the children they are raising are not genetically related to them.  

I’ve written about this a bit before, but the article offers far more extended consideration than I’ve managed in a short post.   It also raises a number of different issues, primarily using individual stories to make its points and raise its questions.  

There are a few things that stand out for me.    First, as Ruth Padawer (the author) notes, in the cases discussed when a man finds out that the child he has been raising is not genetically related to him he also learns that the woman who gave birth to the child (in these cases his wife) has lied to him.  He learns she has been unfaithful to him.    

The Irresponsible Parent

(This is a continuation of the discussion begun in my last post.  You might want to go and read that first.)

In my last post I argued that it’s misleading to criticize some people’s choices to become parents as selfish, because all people’s choices to become parents are equally selfish.    However, I didn’t mean to suggest that no criticism of individual decision-making was possible.  I suggested that the better question was whether the decision to become a parent was responsible.    

Before I go further down that road, a bit of discussion is necessary.    There’s at least an argument that the decision to become a parent is personal and hence, shielded from public examination of the sort I am suggesting.  

To the extent this is true, it seems to me it ought to be equally true for all people.  Thus, it is as true for a single woman as it is for a married couple. 

Sperm Donors and Fathers

This story appeared in what was once our local paper and is now internet only.   (And it looks like they picked it up from Redbook.)  It’s a fine account of one’s man discovery that he and his wife needed to use a sperm donor and his thoughts about that process.  

I don’t suppose I have all that much to add to it, though it ties back to lengthy discussions on this blog about sperm donors (anonymous and otherwise.)     Like many people who have written here, Gary Blitt wasn’t sure how he’d feel about a child conceived with donor sperm.   But as time passes, there’s no question that he is his daughter’s father.  He’ll be the one to teach her to read box scores and change the diapers.  

Perhaps it is true, as he says, that his sperm wouldn’t even have been as good as the donor’s was.   But what is more important to me, at least, as that every day in real life he is the father of this child.  

So Maybe Being A Parent IS All About Sex?

Under the laws of many states (including Washington) and in the Uniform Parentage Act the parental status of some men turns on the precise means by which the crucial sperm entered the mother’s body:  If sperm is introduced via intercourse than the man is a father while if it is introduced any other way, he is not.   I have commented in the past  that this seems a very odd place to draw a line. 

People of differing views might well share this opinion.   If you think genetics is the  crucial determinant of parental status, then the man is a father no matter how the sperm is delivered.  If you think intent is critical, then the man may or may not be a father–engaging in intercourse is no guarantee of intent to parent.   If you tend towards function (as I typically do) then the man may or may not be a father, but it has little to do with the actual delivery of the sperm.   And so on through the tests I’ve discussed.   

Even when I might disagree in substance (as I do with the genetics-is-fatherhood stance) I find it sensible that sex/no sex is not where a line is drawn.  

Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    

The Hierarchy of Parenthood, II

Yesterday I began to consider whether there needs to be some consistent hierarchy among the various tests for who gets to be a legal parent.   It will be a good deal easier for you to follow this discussion of you read yesterday’s post first.    While some of what I have to say here today is repetitive, it’s a bit more organized and also expanded.  

Yesterday I laid out six possible tests for legal parentage, each of which is used at least some of the time in some places.   I’ve been thinking about the thought-process that has to accompany trying to develop an answer to the “do we need a hierarchy” question.  

Perhaps the first thing to do is to examine each test and consider the arguments for an against it.  I think for the most part I’ve done this in various posts over the last nearly-two years, so for the moment I’ll skip it.  (If you are interested, do feel free to poke around in the archives.  You can try using the relevant tags, which should be helpful.)  

Is There A Hierarchy of Parenthood?

My main purpose in starting and maintaining this blog is to consider the question of who the law should recognize as a parent.   I take individual cases and news events as they come and try to use them to illustrate various points–how the law is, how it might be, where it is good, where it is bad, and so on.   But from time to time I think it is useful to step back and think more broadly.   I’ll take this as one of those times. 

There are a number of different tests you might use to determine who the parents of a child are.  Each has strengths and weaknesses, which are discussed elsewhere on the blog.   Part of the challenge is that the question arises in so many different situations.   ART in particular gives us a whole range of new complications, but there are plenty even without that.  

Possible tests include :

–Genetics–that is, the people whose egg/sperm are used;

–Intent–the people who intend to be the parents of the child, at some identified critical point (presumably before the child is concieved, certianly before the child is born);

–Function–the people who act as the parent of the child for a some specfied period of time (could be fixed, like two years, or could be defined as something like “a substantial period given the age of the child.) 

But if you are not my father, who is?

Yesterday I discussed a new case from Maryland in which a married man belated asserted he was not the father of a 13-year-old daughter he’d acted as father to since her birth.   Here’s another case , this one from Indiana, that was decided at just about the same time.   It’s similar in the set-up, but quite different in the legal issue.

Barrington and Lisa Smith were married in 1985. While married, Lisa gave birth to four children.   PSS was born third, in 1992.   CWS was born in 1996.  

The Smiths divorced in 2001.  The paternity of PSS and CWS was apparently at issue in the divorce.   A guardian at litem was appointed to represent PSS in connection with the paternity inquiry.  The final divorce decree specified that Barrington Smith was not biologically related to CWS and shared custody was ordered for the other three children, including PSS.

In 2008 PSS filed suit to establish paternity.  

Wait…Maybe I’m Not Your Father After All

There’s a recent Maryland case that illustrates some of the problems that might arise if you use genetics as the sole marker of parenthood.   I light of the substantial discussion over the last couple of weeks about sperm donors, embryo mix-ups and parenthood, I thought it was worthy of comment here.  

Darren Gerard Kamp and Vicki Jo Duckworth  married in 1983.   While they were married Duckworth gave birth to four children, the youngest of whom was Julie Kamp. 

Julie Kamp was conceived in early 1992.    At the time, Kamp was working out-of-state and only visited his wife occassionally.  Perhaps even more importantly, he’d had a vasectomy in 1987.   For these reasons, even before Julie Kamp was born, both Duckworth and Kamp knew it was quite likely if not certain that Kamp was not genetically related to her. 

Controlling Mothers, Lesbian or Otherwise

I’m going to leave my last topic, though only for the time being, to pick up some things that piled up over the week.   I’ll start with a new case involving a lesbian mother from Tennessee. 

As is so often, you can read about the case on Professor Arthur Leonard’s blog.   The facts are fairly simple.   Angel Chandler and Joseph Barker had been married.  They had two children who are now 16 and 14.  An affair by Joseph Barker lead to a 1998 divorce.  By agreement, Angel Chandler was designated as the primary custodial parent for one child (a daughter) and Joseph Barker was designated as primary custodial parent for the other (a son). 

About a year after the divorce Angel Chandler began a relationship with a woman.  They now live together.   In addition, Joseph Barker married the woman he had had an affair with.   Over the years there were various modifications in the custody arrangement, generally by agreement of the parties.  In 2007, however, the parties ended up in court again.