Everything in moderation…..

I am moderating comments.   I’m not trying to censor viewpoints but trying to keep things both civil and tidy.   I’ve come to think this makes for a better reader experience.

If you want your comments posted, try to be short, on point, and respectful.   If you think I am being unfair, write to me.   But first be a little patient.   It may take a few days for me to get to comments.

Once Again–On Birth Certificates

In the past, the question of birth certificates (what they say/do not say) has been extremely controversial here.  I suppose what this means is that it is controversial out there in the world.    I didn’t really plan to address this topic quite yet, but as it is in the news, here goes.

Today The New York Times reports an important decision from a judge in Texas.  In some ways the topic may seem far afield as this is really an immigration issue.    It seems that Texas decided to require very specific documents in order for women giving birth there to get a birth certificate.    This mean that those who did not have proper documentation of legal entry into the country couldn’t get birth certificates.   Forms of identification that had been accepted were being rejected.   (So you had been able to get a birth certificate with a passport, but then it changed so that you could only use a passport if it had a valid US visa.)

The point of this policy was to make it difficult (if not impossible) to get birth certificates for the children being born in the US.   Continue reading

Intention and Point of View

This links up with the earlier post about intentions.   That’s such a big topic that I have to take it in pieces.   You might want to read that to start, but it’s not crucial for the moment.

There’s another big topic that relates to intention that I want to open up here, and that’s whose point of view you consider.   Here’s what I mean:   It’s popular to want to use a child-centered view when thinking about law and children.  You can see why there’s an impulse to put children at the center.  Typically children are NOT the main actors, but they are the people being acted upon.   And we often think of children as blameless–by which I mean that they are not responsible for whatever legal or social complexity surrounds them.    (Obviously this is particularly true for young children.)

So let’s imagine you looked at things from the child’s point of view and you’re trying to give meaning to the conduct of some adult in the child’s life.   Does intention matter?    Continue reading

Current Events: Unregulated (Sperm) Banking

It’s been so long since I’ve covered current events, but some days there are just stories that scream out for comment.  Today’s is from the New York Times and is about sperm banks.   Simply put, it’s a parade of horror stories in which sperm is lost, misused or passed over as something it is not.

On one level the problems here are obvious when you give even a little thought to how sperm banks generally operate.   Men come in and give sperm.   Some are paid to do so.   (There’s a lot more complexity than this–you could discuss payment structures, etc.  But I only need to do this in broad brush for now.)   These men providing sperm that will be used by people they do not know (and sometimes will never know.)  Other men are preserving their own sperm for subsequent use.

There are at least two different sorts of problems here.  Continue reading

Changing Course: A Bit About Intention

I think I’ve said enough about wise judges for the moment.  I want to go back and pick up from another comment on the first of the new generation of blog posts.   It’s the one by
My Parents’ Donor Is My Father” about intention.  And I want to use that to talk a bit about intention and its role in determining parentage more generally.  Some of this I did in a comment reply yesterday, but my assumption is that not everyone picks through the strings of comments/replies.  For those who do, I apologize for redundancy.  Still, maybe I’ll say it slightly differently this time and it will bring some clarity.  I’ll also note that I’ve written a lot about intention in the first generation of blog posts and if you use the tags you can dig up that stuff.  I think I still stand by what I said, but one never knows.  It’s been years and perhaps my views have changed.

Intention and the related idea of intentional parents play a critical role in assisted reproductive technology (“ART”).   In many forms of ART people use gametes (sperm and/or eggs) provided by others who do not intend to play a parental role for the child.   Instead, it is the people using those gametes who intend to play the parental role(s).    (I’m thinking here of what is often called “sperm donation” or “egg donation” but I’m not wild about those terms.  You can read about why in much earlier posts.)   You can also think about how this works in surrogacy, where a woman is pregnant and gives birth but does not intend to be a parent to that child.   Someone else–the person or people commissioning the surrogacy–does.

In all of these circumstances, the people who plan to be the parents–those who set the whole project in motion–are often referred to as “intended parents.”   Continue reading

Do Those Wise Judges Make Law? Or Do They Just Make Decisions?

I just want to round out this train of thought so that I can pick up some really interesting points raised in comments.    This is really only a very superficial look at the whole “wise judges” question, but you do have to start somewhere, right?

When I think of law, I think of a system of rules that applies generally to a lot of people.   So, for instance, the speed limit.  You can legally drive 60 mph.   You cannot legally drive 70 mph.   (I know the numbers may not be right, but you get the idea.)   If you are ticketed for driving at 70 you cannot legally defend by saying you were in fact driving safely or that you are the kind of driver who can safely drive at 70 even though many people cannot.    The rule (no more than 60) is of general application.  And we all know that.   So you can appropriately adjust your behavior.

Of course, the speed limit is a bit more complicated than that.  Many people I know tell me (have I mentioned that I don’t drive?)  that you can drive 65 without fear of a ticket.  Or that you can drive at the speed most traffic is traveling (which might be 65, but might not be).   This makes me think first, that the rule isn’t quite as cut and dried as it initially sounded, and second, that there’s discretion involved.   An officer might let you go right by driving 65, but she or he might also pull you over.   And what about 66?

Certainly the officer cannot pull over all those driving 66 so you know that there’s a chance you’ll be okay and a chance you won’t.   (We could think here about who gets to drive 66 and who does not, but this is a whole other (very large) topic and I’m not going there now.)

And even if you do get a ticket, if you show up in court you might be able to talk your way out of it.  Some people surely will be able to.  Some won’t.   (Again, I’m skipping the question of who can and who cannot.)     Some people might have explanations the judge accepts, some not.

All of which is to say that the seemingly clear legal rule (you can only drive 60) isn’t so clear.   And it isn’t actually of universal application, either.   But at least we can nod in the direction of those features–a clear rule of general application–even as we observe the complexity.

The wise judge deciding the fate of children may inhabit a totally different world.   Each case is unique, as each child is unique.  Each child has his or her own needs and each adult has their own capacities.  (I guess I’m seeing this as something like a custody case–and there’s a whole other set of issues raised there–where the judge is figuring out what arrangement is best for the child.)

You would want, perhaps, the judge to start with no preconceptions about what is good for children generally or what counts as a plus (versus what counts as a minus) but to make a new assessment each time, based on the specifics of that particular case, those particular people, this particular child.

I’ve already tried to point at the impossibility (or at least improbability) of anyone actually being able to do that.   But let’s just suppose they could.  Would that wise judge be making law?   Surely she/he would be making decisions.  Each case would end with a decision particular to the people involved.

But would that generate law?   Or would that be law?   If the whole idea is that each case was thought of as a unique and individual problem, then I think the answer is “no.”  There would be no general rules.   Cases that were similar (but not identical–no two cases are ever identical) could receive completely different treatment–because in any given case, the differences could matter.   It’s hard to see how one could even predict outcomes.   (Predicting outcomes is important because if I can confidently predict the outcome, maybe I don’t have to go through what will clearly be a time-consuming, expensive, and intrusive process.)

In fact, there are some ways in which a “wise judge” system might become predictable.   The judges might in fact have or develop biases over time.   This would mean they’d react to particular things in particular ways and you’d get general rules and more predictable outcomes.   Or the judges would develop “practices”–a much more neutral word than “bias” but perhaps amounting to the same thing.   Once a judge established a practice of valuing X over Y, you’d have rules and predictability.  But when this happened, you would no longer have a pure “wise judge” system.

I don’t for the moment mean to say whether I think this is a good thing or a bad thing.   It’s just an observation.   And it’s very hard for me to overcome my deep skepticism that a “wise judge” system is really even possible.   So I’ll just leave it here for now.

On Wise Judges and the Law

This is spurred by an earlier comment by TAO.  (You can find the comment here.)   In response to my musing about the need to resolve individual disputes about who gets to raise a child, TAO invokes the ideal of the wise judge.  This is an ideal I, too, find appealing and I wanted to take a few moments to think about it further.

Even as it seems that so much in family law/parenting is constant (and surprisingly unchanging–which is the point I was trying to make with Silas Marner), each case is unique.  Every child is different just as every human is different.  Each child has their own unique needs and stands in their own unique circumstance.   Each putative parent is also unique and brings their own set of unique circumstances.    And surely there is no legal decision more personal–to both child and parent–than the decision of who will raise a child.

In this context, the idea of individualized determinations seems really appealing.   Continue reading

What to think about age-old arguments

As I realized reading Silas Marnier (and wrote about here) the arguments about who is a parent and why may seem new and startling, but in fact they are not.  Contexts change, of course.  The rise of lesbian parenting and the growing use of sperm donors via commercial ART centers means that the issues arise in new forms. But the claims of the genetic parent vs. the social parent are essentially similar.  Surely new understandings of DNA offer new arguments, but these are mostly variations on the (it turns out, ancient) themes.

Perhaps this is no surprise.   Like the apparently eternal nature/nurture debate, it seems to me obvious that these are old questions.  Look at the story of the judgment of Solomon–where the wise king is challenged to determine the “real” parent of the child.

So apart from recognizing ancient roots, is there anything else to be noted from this (admittedly late) recognition? Continue reading