For a while now I’ve been writing about the parental status of men where a child results from a one-night-stand. My conclusion has been that these men are not fathers of those children. They are, instead, like sperm donors. (Many, perhaps even most, people are quite comfortable with the idea that a sperm donor is not a father of a child produced with his sperm, even though he has a genetic link with the child. But the law on this does vary state to state.)
I’ve gotten comments, some on line here, some on Feminist Law Prof, where I frequently cross-post, and some privately, that seem to think I’m using a double standard–one rule for men and another for women. I don’t think I am, and I think I’ve said as much, but let me focus here on the parental status of the one-night-stand woman just to be completely clear.
Suppose the woman is pregnant after the one-night-stand. Is she a parent? Not at that point. First off, I don’t accept that there is a child at that point. No child means no parent. She does, however, have the chance to become a parent. If she decides (and remember, I’m indulging in a minor fantasy that she actually has a real choice here) to continue the pregnancy, then when she gives birth she will be a mother.
What makes her a mother at the point a child is born? It is not the genetic link. There is no reason why the genetic link would make her a parent when it would not make a man a parent. To say that would indeed be to employ a double standard.
But between the one-night-stand and the time of birth the man and the woman concerned here are in rather different positions. She is pregnant. He is not. And while we might say that he completed the task of fathering the child during that one-night-stand, her task continues, 24/7, for about forty weeks. At the end of which time, having provided the most intimate of care non-stop, I’d call her a parent. (For the moment I can also throw in that in deciding to continue the pregnancy she has demonstrated that she intends to be a parent, giving her an alternative claim. But I don’t really want to rely on that.)
Whatever our commitment to gender equality as a theoretical matter, the physical fact of pregnancy and childbirth remains a uniquely female experience. There can be only so much symmetry between the position of the man and the woman during this critical period. When the child is born, nine months or so after my hypothetical one-night-stand, she is a parent and he is not. It isn’t that I am using a double standard. It is that they have played different roles, roles that in this case are linked to their differing physical capacities.