I’m surprised to realize the frequency with which interesting parenting cases arise. But since I don’t want to only do current events, I think it is time to go back and pick up some of the loose threads I’ve left and try to weave them together. Perhaps it is time to go back to the beginning and talk about what my purpose in doing this blog is.
Remember that recognition as a legal parent is tremendously important. Parents have enormous power over and vast responsibilities for their children. Non-parents must defer to a parent’s judgment of what is best for a child. The state must defer to a parent’s judgment as well. The only people who stand on an equal footing with a parent are other parents.
This being the case, the way the law identifies those who will be recognized as parents matters. Now if all children lived in families with married-f0r-life monogamous heterosexual parents, both of whom were biologically related to the children it would be pretty easy to have a uniform test for who is a parent. But like it or not, our world isn’t like that. Indeed, I’m pretty sure I could assert that the majority of children DO NOT live in that setting these days.
So we need tests for parentage that account for non-marital families, for lesbian and gay families, for step and blended families, for adoptive families, for families created through assisted reproductive technology and so on. And so far, I’ve written about at least some of those. From this you can get a sense of the complexity of the landscape and the range of factors that may matter in any given case –DNA, marriage, intent, agreement, performance and so on.
The harder task is to put the pieces together. It’s much easier to go case by case and solve each one then it is to devise a coherent framework for analyzing mulitple cases from different settings. Yet one of the hallmarks of law (often) is that it applies generally to many people. It isn’t a series of ad hoc decisions, it’s a set of principles that generate (good?) (acceptable?) results in a variety of contexts. At the very least, if the rules are not the same in all contexts we should at least be able to clearly articulate how and when the rules will vary.
This is far harder than it may seem. Consider this quick example. A man who engages in intercourse with an unmarried woman is generally said to be the father of any child that results. That’s true whether the man and woman were in a long-term committed relationship of some sort or whether it was a one-night stand. It’s true even if they don’t know each other’s names and never see each other again. Now why is he the father? Well, first there’s the DNA match. Second, if not him, who? The child must have a father and (perhaps not unrelated?) we need someone to pay child support. So in this instance DNA alone is adequate to be recognized as a legal parent.
Now suppose instead of engaging in sex the same man donates his sperm to the same woman so she can have a child. There’s still a DNA link. But is he a father? Well, that really depends. In some states no, in some states yes, and in some states it depends on a whole lot of other facts.
Now ask yourself if he should be considered a father. Whatever answer you give you have to carry that test back up to the people involved in the preceding paragraph. So if you say something like “it depends on what the people involved thought they were doing” then you have to think about what that means for the one-night stand hypo. If there’s a one-night stand, does the man’s status as a father depend on what the parties thought they were doing? If he didn’t mean to be a father, he isn’t?
So that’s the challenge here–to look at all these individual cases and from them extract some set of rules that we can live with.