Last week I posted a couple of times about a recent Oregon case that opens some new avenues for lesbian mothers seeking legal recognition of their parental status. While you might wish to go back and look at those posts, the idea, in a nutshell, is this: If two women agree to engage in assisted insemination with the idea that they will raise a child together, then when they do that and the child is born, they are both legal parents of that child.
There are two different ways in which you could reach this result. One is that employed by the Oregon court: A heterosexual married couple would be entitled to this treatment. There is no basis for treating an unmarried lesbian couple differently in this regard, and therefore the lesbian couple is entitled to the same legal recognition.
The thing about this rationale is that it starts from an already existing law that treats a heterosexual couple in a particular way. That’s all well and good–it is really a fine way for a court to support it’s result. But I want to consider the second way to justify the result, which is to say that this is the way the law should be for all people, be they married or unmarried, heterosexual or not.
In many ways this argument appeals to me. Often people decide to utilize assisted reproduction as part of a joint project to become parents. The operation of traditionally existing law, however, may leave them in a position where one is legally recognized as a parent of the child while the other is not. For example, in many places if an unmarried heterosexual couple used donor sperm to impregnate the woman, the woman would be recognized as a legal parent (both because she gave birth and because she is genetically related to the child) and the man would not be.
The result might be different were the same couple married. But it seems peculiar to make the parental status of the man in this case turn on whether or not he is married to the woman rather than on his relationship to the child or to the project of creating the child.
Rather than draw a line at marriage, it makes more sense to me to consider drawing a line at participation in the joint endeavor. And as I say, this appeals to me. I see the fairness in giving both participants in the joint endeavor equal status, even though one will actually be pregnant and the other will not.
But there is something here that troubles me and that is inconsistent with a line of argument I developed here quite a while ago. Over a year ago I considered the use of intention as a basis for parentage. This was primarily in the context of surrogacy. I criticized the use of intention as a basis for trumping the claims of the surrogate who actually was pregnant and gave birth. For the moment at least, I stand by these earlier posts. I am uneasy saying that the assertion that I intended to be a parent and hired you to be pregnant for me overcomes your claim based on the actual fact of being pregnant and giving birth.
But how does that fit with what I shall call the “joint enterprise” argument? The critical feature of the joint enterprise is the intention of both parties to be parents to the child. The claim of the second person to parentage rests on that intention.
Before I endorse the joint enterprise argument, it seems to me I must consider how it fits with or disrupts my earlier points about surrogacy. A fine project for the rainy afternoon to come.