Who’s A Parent and What About the Best Interests of the Child?

I wanted to take a step back from that lively discussion of the legal and social status of a sperm donor for at least a moment.    I want to think a bit about how the well-being of children fits into determining who is recognized as a legal parent. 

To start with, it needs to be clear that being recognized as a legal parent is very important.   The very first post for this blog, nearly two years ago, made this point.   And you’ll find it elsewhere on the blog, too.

What I want to explore here is what bearing the well-being of a child or of children generally have on the “who is a parent” question?   One possibility is that you could say that for any given child, you figure out who that child’s parents are by asking whether it would be good or bad for the child if each of the contenders was recognized as a parent. 

DC Lesbian Mother Law Enacted

A new law has taken effect in our nation’s capitol–one which establishes  lesbian motherhood in a way analogous to that in the recent Oregon case I’ve discussedat some length.   The law is noteworthy as it is the first of it’s kind.  It’s the result of long labor by a wide-range of people and organizations, among them the inimitable Professor Nancy Polikoff and the National Center for Lesbian Rights.  Unsurprisingly, you can find a useful discussion of the new law on Professor Polikoff’s blog.  

The new law accomplishes by legislation what the Oregon case did by judicial reasoning:   The law provides that when a person (note gender neutrality as this is critical) consents to the insemination of a woman, with the intention of being a parent to the resulting child, the person is a legal parent of that child.   Put more concretely, when a lesbian couple plans to have a child using assisted insemination, the child that results will be recognized in law as the child of both women.  

A Few Further Thoughts on Father’s Day

As I read through the New York Times this past Sunday I was impressed with the pervasiveness of the Father’s Day theme. Virtually every section of the paper  I picked up seemed to have at least one Father’s Day themed article—sports, business, style, and op-ed.  The Style section alone had two Father’s Day articles, plus a column reviewing a couple of books around single-motherhood thrown in for good measure.  

The pieces that struck me most were a pair of essays in the News of the Week by John S. and Jason Burnett, who are father and son.   They were separated for 27 years—from the time Jason was 10 to the time he was 37.   Though the essays are a bit sketchy on historical detail, it’s clear that John Burnet left his family.   He says, “I bolted down to the Brooklyn docks and signed on a merchant ship.”  

David Goldman’s Quest and the Passage of Time

Here’s a current case which, by chance, ties back to yesterday’s post.   There’s a version most recent developments here, and also a time-line, but I’ll summarize the facts.  

David Goldman and his wife, Bruna Bianchi, had a son (Sean)  in May, 2000.   In June, 2004, Bianchi and Sean went to visit her family in Brazil.   As far as Goldman knew, they were to be gone for two weeks.  

Within days of their arrival, Bianchi told Goldman they would not be coming back and that he would not be seeing his son again.   There’s an international treaty–referred to as the Hague Convention–that is designed to manage situations like this–where one parent tries to deprive another of contact with a child by fleeing to a different country.   As early as September, 2004, Goldman invoked the Hague Convention and began legal proceedings to try to regain access to his son. 

Judge Sotomayor, The Supreme Court, and Family Ties

This is a bit far afield for me, as I usually stick narrowly to issues of parentage.   But it isn’t every day a new Supreme Court nomination comes along.  This morning, President Obama nominated Sonia Sotomayor to serve on the United States Supreme Court.

Now although the United States Supreme Court is enormously important for many, many reasons, it does not do very much family law.   Instead,  family law has, for the most part, been left to the states.   In some instances, this is the result of deliberate litigation strategy–as in raising only state constitutional claims in on-going access to marriage cases.   (And yes, Proposition 8 was also decided today.   Some thoughts about that on another blog shortly.)  But it also reflects a long-held view that family law is and should be subject to local variation.  

Parental Rights and Access to Marriage for Same-Sex Couples

Recently there’s been a lot in the news about access to marriage for same-sex couples.   There’s a lot going on out there.

In the upper-right hand corner of our country, a block of states recognized actual marriage is emerging.   In the center of our country, the Iowa Supreme Court ruled unanimously (surely no one expected it to be unanimous) that access to marriage could not be constitutionally denied.  And on the left coast, people are waiting on a decision of the California Supreme Court on Proposition 8 (which amended the CA Constitution to bar recognition of marriages between those of the same sex) while Washington moves forward with an “all but marriage” version of domestic partnerships.

I’ve written before about how being a parent has gotten entangled with being married.  Recently I’ve been following invocation of  parental rights as a basis for retaining restricted access to marriage.  

Gay Father Entitled to Social Security for Kids

This is one of those cases that really shouldn’t be a case at all.   It’s also an instance where being legally recognized as a parent is critical.   Plus it shows something about the current situation of lesbian and gay parents.  All reason to note it here.   The case was litigated by Lambda Legal Defense and Education Fund and you can find both a press release and the actual complaint on Lambda’s website.

Gary Day has two children.   There’s a boy (identified as “CDG”) born in 2000 and a girl (“EDG”) born in 2003.   The most critical fact is actually lurking in the first sentence of this paragraph, though you could certainly miss it.   Day is unquestionably the legal parent of both of these children.

Note that I wrote “Day has two children.”    That’s actually a tad ambiguous, even though it is a common enough usage.   The thing is, common usage doesn’t tell you legal status.   What does it mean to “have” children.  Sometimes we mean a person gave birth to a child.  Sometimes we mean that the person occupies the role of parent in the child’s life.  In this case, Day doesn’t simply occupy the role.  He has legal recognition as a parent of these children.  

Being Suspicious of Nature

It should be clear from the last couple of posts (as well as a number before that)that I am somewhat suspicious of the invocation of nature, especially in the context of the discussion of family forms.    There are really third main reasons for this.

First, these invocations are usually accompanied by (an often unarticulated) assertion that “natural” is good.   As the last post points out, sometimes the natural is good and sometimes it is not.  We need to be very careful not to stop thinking critically just because nature is invoked.

Second, I’m not at all convinced I or anyone else really knows what actually is “natural”  in these contexts.   Is it natural for a man to love or feel protective of or feel responsible for children who are genetically linked to him?  I think reasonable people could probably differ on this.   At best, what I’d say is there’s a wide range of observable conduct in this regard.   Some is more socially desirable and some is less so.    Given that I don’t know what is natural in this context, I’d rather spend my time trying to figure out what is socially desirable and how to encourage that behavior, be it natural behavior or not.   These questions are quite hard enough for me without working on the “what is nature” question as well.   

Doing What Comes Naturally?

There’s an interesting column by Anna Quindlen in this week’s Newsweek.   Her point is, in the main, a modest one:   Many of us can be much better parents if we are actually taught something about how to be parents.

What’s interesting to me is that I think there is another underlying assertion here as well–that parenting is not something that we all just naturally know how to do well.   It’s not instinctive, as learning how to walk is.   No one teaches us to walk–we are just programmed to do it.   Parenting isn’t like that.  We don’t just know how to do it.    It does not just come naturally.

I think this ties into my general skepticism about the importance of a genetic link in determining who a parent is.   Parenting isn’t something one knows how to do automatically and that’s true whether one is genetically related to a child or not.  I am quite sure that many people feel deeply bonded to their children because of the genetic link, but I’m just as sure that many people feel deeply bonded to their children where there is no genetic link.  I’d bet (though I confess I have seen no studies) that the presence of a genetic link does not cause one to be a better parent.

We sometimes speak about the “natural parents” of a child.   By this we usually mean the people genetically related to the child, and it often stands in contrast to “adoptive parents.”   But while the creation of children may follow naturally from certain acts, actually living the role of a parent does not.   That’s what Anna Quindlen is writing about.   People become parents–parents in a true sense of the word–when they take on the obligations and responsibilities for a child.    They may do this in the presence or the absence of genetic linkage.    When they do this, if we are all lucky, the put the time and effort into learning how to be good parents.   (I don’t, by the way, mean to suggest there is one right way to be parents.)

In the end,  I think we live with a powerful myth about the naturalness of parenthood.   It has two aspects.  First, that a child’s parents are naturally determined, by virtue of the genetic link.   And second, that parenting comes naturally, rather than being both taught and learned.    It’s worth thinking hard about whether these things are true.

Sperm’s a product–who’s liable?

Here’s a recent case from PA that poses some interesting questions.   That link is to the actual opinion, but I’ll discuss the case in some detail here.  There’s also news coverage here and here.

The facts at this point are those presented by the plaintiff.  Brittany Donovan is a 13 year old girl who lives in Pennsylvania.  She was conceived in Pennsylvania using sperm from a New York sperm bank.  Her mother selected the sperm bank at least in part based on various assurances that the sperm had been very well screened.

Brittany Donovan suffers from something called fragile X syndrome which constitutes a severe disability.     It seems that the donor was a fragile X carrier and the allegations in the complaint are that the sperm bank should have known this and therefore screened out the donor.

There are particularly interesting legal points here, one of them probably a bit obscure.    First, the allegedly defective sperm is treated as a product–akin to a defective can of paint or a defective automobile.   That’s consistent with a regime where sperm is routinely bought and sold and so shouldn’t really be surprising.  At the same time, it’s worth noting.

The more interesting question to me is the court’s consideration of what law to apply.   In this case New York law would allow the plaintiff to proceed with her case while Pennsylvania law would not.   The court must choose which law to apply .   This is known as a “choice of law” problem.