While I’m thinking about comparing approaches, (and still writing off-line) I am going to expand on the discussion of the difference between the DC statutory parentage test I’ve been discussing and the similar test announced by an Oregon court right around the same time. I want to focus on one particular difference between the two approaches, one that I think is worth considering.
On the surface, the two approaches are similar, and in many instances they’ll operate identically. If a lesbian couple decides to have a child using ART, both DC and Oregon will recognize that both women are parents from the moment the child is born—one by virtue of having given birth and the other by virtue of having been a part of the project that resulted in the birth.
The difference between the two approaches is important, though. If you take a step back and consider how the Oregon court reached it’s conclusion, you can see how the difference got encoded into law.
The Oregon court reached its conclusion by reasoning that it would be unfair to treat a married heterosexual couple and an unmarried lesbian couple differently. Oregon law already recognized the non-pregnant husband who agrees to his wife’s use of ART as a parent, so the court reasoned it must also recognize the non-pregnant lesbian who agreed to her partner’s use of ART as a parent. Thus, the Oregon approach depends on the prospective parent—the one seeking to take advantage of this new legal approach—being part of a couple and on the agreement to the use of ART.
By contrast, the DC approach does not require the prospective parent to be part of a couple. Any person who agrees to engage in the ART endeavor of creating a child will end up as a parent.
Here again is a Venn diagram.
The inner circle is the set of people recognized as parents under the Oregon case-law approach while the outer circle is the set of people recognized as parents under the DC statutory approach. The ring outside the smaller circle represents people who are not in couples but who agree to engage in ART.
None of this tells us anything about what is better. It’s just about what is different. But carefully identifying differences makes it possible to frame a question about what is better. Now I can ask “is it good to allow people who are not in couples to engage in ART as a part of a joint effort, secure in the knowledge that they will both be legal parents?” The answer to this question (which is not for today) will help tell us whether the DC or the Oregon test is better.