Yesterday’s post has left me thinking further about the presumption that the spouse of a woman who gives birth is a parent. What should we make of it in the modern world and, in particular, what should it mean for lesbians–specifically for married lesbians.
There’s a lot of good legal scholarship on this, and given that it has been a while since I’ve looked at that, I’m a bit worried about getting it wrong. But the presumption is an ancient one. A husband was presumed to be the legal father of a child his wife gave birth to. The presumption did not apply (or was rebutted) if the husband had been out of the country for ten months.
This latter point suggests that if it was known for certain that the husband could not be genetically related to the child, then he was not the father. And that in turn suggests that, given the wonders of DNA, the modern presumption should give way in the face of DNA test. Looked at this way, the presumption was a way of dealing with the uncertainty of paternity, and now that we can have certainty, we do not really need the presumption.
This view suggests that legal fatherhood really is all about genetics. If this is true of parenthood in general, then it isn’t very helpful to lesbians trying to create a two-parent family. Ordinarily, the woman who gives birth the the child is genetically related to the child. So she’ll be a parent on several counts, her spouse (assuming here they are married) may try to avail herself of the presumption, but could be blocked by reference to genetic certainty.
But I think there is a different way of thinking about the presumption. When a husband discovers he is not genetically related to his wife’s child, in the ordinary case, he has discovered duplicity and deceit. The existence of the child is irrefutable proof of infidelity. Perhaps this breach of trust is such that he should be able to renounce responsibility for the child, should he wish to do so.
But a lesbian knows from the outset that she will not be genetically related to her wife’s child. The results of the genetic testing do not tell her to a certainty that her spouse has been unfaithful.
The better analogy is to how the marital presumption functions when couples use ART. The standard rule for heterosexual couples (assuming procedure is with the consent of the husband) is that the donor of genetic material is not the father, the husband is. Now why does the presumption operate there?
I think it operates because that is clearly what the parties have in mind from the very beginning. When a married couple jointly employ ART, they both mean to be the parents of the resulting child. The law allows them to gain this status automatically, without resort to adoption or other equitable doctrines.
Put slightly differently, the presumption gives us a way to effectuate an agreement we might not otherwise be willing to give effect to. Generally I cannot contract into being a parent. But if I marry you and we go on ahead I have effectively ensured my parentage just as if we had entered into a contract.
It’s possible to describe the governing rule–the husband is the father–as the operation of the marital presumption in a particular context. But it could also be understood as a different statement–one that has to do with the deliberate intention to become parents. Viewed in that light, it would seem to apply to lesbian couples and gay male couples as well as heterosexual ones.
Further, if you go this route, it’s not at all clear to me why you need to restrict it to married couples. I suppose it is safer to assume that a married couple has a shared intent to parent. But there are probably better ways of ensuring that shared intent besides just assuming it.
I see one looming problem for me–this is clearly a step down the road to parenthood via intention, something which I have found troubling with regard to surrogacy particularly. But that’s for another day.