A Child-Centered Perspective and Natural Parenthood

I want to move off the last topic, even though it has spurred much discussion which I suspect is not exhausted, and try to broaden my thinking.  

I think many of the comments on the last discussion were from what I will call a “child-centric” perspective.  (For some reason this reminds me–no one actually addressed my question about what rights, if any, a donor (as opposed to a child) ought to have.   What do I make of that silence?)  

The idea of a child-centric perspective is to judge various rules/practices by how well they serve children.  That’s not an easy thing to do by any means, partly because children vary enormously and partly because we probably don’t agree on what is good for children.  Choosing the path that makes children happy isn’t always best for them.  But I’ll skim over these difficulties for now. 

Anyway, the comments on the last thread considered donor insemination from the perspective of donor-created children.   Some of the commenters suggested that various people should not have access to donor sperm (or should only have access to it under certain conditions) because having access to it will allow them to create children who will not be raised in a what they consider acceptable circumstances.    

Shouldn’t we do the same sort of analysis non-donor created children–children who are concieved without the use of any ART?   Surely these children are entitled to no less concern (and surely there are many more of them) than the children who are conceived via ART.  

It seems to me that this invites us to regulate natural reproduction.   (Those of you who have been reading this blog for a while know that I’m a skeptic about the invocation of nature–as in “natural parent”.  I use the term here with some trepidation.)  For the sake of the as yet unconcieved children we should assess the suitability of all prospective parents and decide who gets to have kids.   Some people should not.   People in extremely unstable relationships, for instance, might be deemed ineligible to reproduce, because the children born if they did reproduce would be unhappy. 

Of course, we do nothing of the kind.  Indeed, we don’t even seriously consider doing anything of the kind.  But why not?   If you come at it from a child-centric perspective, shouldn’t we? 

At the moment, I can think of two main reasons why we do not attempt to regulated natural parenthood.   I’ll take just a few moments to lay them out here. 

 One objection is pragmatic:  it is impossible to regulate parenthood that comes about through intercourse.   Certainly it would be extremely difficult and I doubt it could ever be regulated effectively.   There are, however, some possibilities that could at least be explored.   

I don’t think you could prevent people from engaging in intercourse.   We’ve tried that before and it doesn’t seem to work.  (Consider, too, that some of the people deemed ineligible might be married couples.)  You could mandate abortion for anyone who was pregnant but deemed unfit to parent, but that’s a road I’m not going down for the moment. 

The most promising option would be requiring universal contraception and then have people apply for permission to suspend contraception and attempt parenthood.   (I’m sure I’ve read a science fiction novel with this as the premise.)  That way we could scrutinize their qualifications in advance of any pregnancy.   Those who were deemed capable of creating a suitable environment for raising a child would be granted a license to procreate.  It wouldn’t be perfect—there would be scofflaws.  But it might be a start. 

This bring me to the obvious second objection which is one of principle:  It would deny people their rights–rights that are perhaps both constitutional and moral rights.   But wouldn’t granting primacy to these rights mean we were abandoning our child-centric perspective.  The whole point of the child-centric perspective is to elevate the rights of the child above those of the adults.   It seems to me that from a truly child-centric perspective, the rights of the adults should be  secondary. 

Since it’s pretty clear we’re not about to regulate reproduction generally, it makes me wonder what I am missing.

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17 responses to “A Child-Centered Perspective and Natural Parenthood

  1. I think the key thing is that we can’t regulate intercourse as a means of reproduction because it is a constitutional right. But we can regulate medically provided insemination by anonymous donor since it is hard to argue that anyone has a constitutional right to a stranger’s gametes not via intercourse, when that stranger has no intention to parent.

    • Putting existing case law to one side, I think drawing the line you draw on rights isn’t that easy.

      Imagine two scenarios. In one, woman meets a complete stranger, has anonymous sex and gets pregnant. In the other, same woman meets same complete stranger, asks him to provide sperm to her. He does, she self-inseminates, and gets pregnant. Why is the first an exercise of right and the second not? The only thing that is different is the method by which the sperm reached its goal.

      I’m surprised you give up the child’s right so quickly simply because you find a constitutional right on the other side. Couldn’t one at least try to argue that the child has an at least equal if not more important right? That seemed to be the implication of the discussion on assisted insemination.

      I think it is interesting to think about what a child-centric critique of non-ART conception would look like. Wouldn’t it involve screening prospective parents to see if they would be bringing kids into good situations?

  2. Since it is established law already that all people have a constitutional right to reproduce coitally, I see no sense in fantasizing how coitus could be restricted or rendered unfruitful.

    But I do think that there is a prospect that the use of donor gametes in a clinical setting could be more significantly restricted, and so I would hope to influence such a potential legal scenario to make any use of donor gametes contingent upon considering the welfare of the resultant child as the paramount concern.

    BTW your scenario of self-insemination without any third party intervention would appear to me to be likely a constitutional right. It would also create legal parenthood of the father in most states.

  3. Since I’m generally more concerned in this blog with what the law ought to be rather than what the law is, all topics are open for analysis. I’m wondering if there is a principled reason to treat unassisted conception differently from assisted conception. Or for treating conception via intercourse differently from conception via insemination. I cannot quite see what it would be.

    If there is some right there, it seems to me the substance of the right is either to have a child carry your genetic material or to have a parent/child relationship. In either case, the precise way you obtain the end seems to me far less important than the end.

    As for the parenthood of the father, you might be right about what law currently is, but the most recent UPA says he’s only a father if there’s been intercourse. I’ve commented elsewhere that that seems an odd place to draw a line. But then, so much of this seems like arbitrary line drawing.

    The real challenge I mean to pose is this. If the rights of the child are paramount, than should we at least try to scrutinze all prospective parents before permitting procreation in order to protect the rights of the children that might be?

    • I want to respond to your question about whether conception not via ART should be regulated. I do not in fact believe there should be any regulation of coital conception except for the retaining of incest and legal age for consent laws. On the other hand I would like to regularize non-coital conception by making the donor the legal parent in most situations and also forbidding the use of donor gametes if they come from a first degree relative (something allowed in almost all states). I believe donor children ought to be granted the protection of both a legal father and a right to be protected from the harm of incestuous genetic material in their procreation.

      • It’s becoming clearer to me where we disagree, I think, which is a form of progress, right?

        I can see that practically it is easier to regulate assisted rather than unassisted conception, but I’m not sure that’s a princpled reason to treat them differently. It’s a pragmatic one.

        While I think it’s worth at least considering the interests of children who might be concieved one how or another, I’m not sure I would make these rights paramount. And then there is the question of what, assuming there are some sort of rights there, those rights are. I’d sooner think in terms of a right to a secure and safe home rather than the right to a legal father. I don’t quite see why a legal father is more important than is saftey and security.

  4. I think we are in agreement that the rights of the child are paramount, and I think that one of the best safeguards for a child is to have two parents so that if one is ill, mentally disturbed, mean or uncaring, the child can seek what it needs from the other parent. Having just one parent leaves a child ultimately much more vulnerable. So just by ensuring there are always two legal parents via natural conception the law is already creating a safeguard.

    But when the law tries to create that safeguard for a child by appointing the husband of the woman receiving donor insemination the legal husband, the safeguard does not work well because stepfathers (which this arrangement is) are actually a statistical risk to a child, with more risk of violence, neglect, sexual abuse occurring at the hands of step-fathers than natural parents.

    However, a lesbian second mom functions as well as a natural second parent in providing the love, care, empathy and fulfilling the emotional and physical needs of a child and supplies the role of safeguard. Hence in my analysis I believe that a married/civil partnership lesbian couple supplies a large function of the natural two parent model to a very adequate degree, statistically so much so that it should be the only model with which a non-legal father should be allowed. (No, I am not lesbian – just a defender of children’s rights) But despite their ability to care for a child in a safeguarded manner, the child should still have an absolute right to know his sperm father.

    For this reason I believe that it is not the manner of conception that creates fatherhood, but rather genetic relatedness, and so although a sperm father should be able to transfer fully his parenting role to a willing married lesbian, he should be aware that he cannot opt out of his parenting role with absolute certainty when it comes to single women since in my model if there is a need the court should be able to pin his responsibilities as father upon him.

    As regards married women, I strongly believe they should not legally be entitled to use a sperm donor via a clinic, because the risks to children growing up with effective step-fathers is too great and the use of a sperm donor is often agreed to with immense reluctance by the husband under pressures such as threats of divorce, accusations of selfishness by the wife and medical establishment and other unfair pressurizing means. (I’ve heard this from so many men that it can’t be an odd occurrence!)

    • as I just wrote above, I don’t actually think we agree about the paramount nature of the rights of the child.

      And I don’t agree about two parents making you more secure, necessarily. Imagine two people who are antagonistic who are co-parents. It’s possible that child is worse off than is the child who has only one parent.

      I also am skeptical that men (or people generally) who raise children from donor sperm (and therefore don’t have a genetic relationship) are necessarily comparable to step-parents.

      • You wrote: I also am skeptical that men (or people generally) who raise children from donor sperm (and therefore don’t have a genetic relationship) are necessarily comparable to step-parents.

        I believe the relationship between a social dad and his donor child can often be worse than a step-father relationship because at least a step-father generally doesn’t have a legal responsibility to pay for the kid. But social dads upon divorce (which happens more than the average in families that use donor sperm) often become extremely resentful about having to pay for what they regard as another man’s child especially when money is tight and it stops them establishing a new relationship.

        • I’d actually suggest the contrary. When a different sex couple chooses to use donor sperm, the man in that couple deliberately decides to raise a child with whom he has no genetic relationship. It’s a conscious choice, and I suspect it is not always an easy one to make. Additionally, he will be parent to the child from the first moments. This seems to me to be quite different from the experience of a standard step-father, who arrives on the scene substantially later in time.

          Ultimately I think we disagree about the importance of genetics and nature in defining social relationships. I think your underlying assumption is that absent the genetic link, the man won’t love the child the same way. I don’t accept that assumption.

          I don’t think I’ve seen any studies of the relationship between children and fathers in the married couple using sperm donor situation. Are there some out there?

          • A married man often does not make a deliberate choice to use a donor, the choice is usually the explicit or implicit threat of his wife divorcing him if he refuses. The man agrees to the use of donor sperm not because he wants a child but because he wants a wife. This is essentially the same as a man agreeing to step-parent his wife’s kids not because he wants kids but because he wants a wife. I’ve communicated with five social dads who have told me this – so I tend to believe this is a very common theme. Sometimes men become attached to the kid and sometimes they so resent the kid that life as a family unit is impossible. I read somewhere a statistic that most heterosexual couples using donor sperm are divorced within two years.

  5. Removing as many confounders as possible, there is one scenario where natural reproduction can be regulated. If we had a true resource crisis, a China styled police powers argument can be made. One family = one child.
    You can even tack on parenting classes or a financial tariff as a condition precedent.

    Now, this scenario does not prohibit natural reproduction, it just places conditions upon it.

    Possible? Yes. Probable? No. The euro-centric view of life is a cornerstone of our society, the Constitution and our current interpretation of the language as it addresses reproductive rights.

    I suspect the only events which would cause a world wide resource collapse are addressed in the science fiction story you referenced earlier.

    But, unlike that story, one still has to deal with children outside of the “rules.” Do we force the mothers to undergo abortion? Do we jail the sperm donors? And, when we find children born outside of the orwellian comfort zone, should we euthanize them or just abolish them to a society of secondary citizens.

  6. Perhaps the premise of a “child-centric” perspective is not what “donor” conceived people are addressing. Certainly the child perspective is relevant during those years when the child is under the protection of parents. I prefer to address the issues of ART conceived people as autonomous adults. What we care about is primarily how we continue to be treated as children once we become independent, when we deserve the right to determine what we value and to have those values respected in the law. At maturity, the right to know our identity should not be denied. Concerns about financial support and legal parenthood are no longer relevant to us at that age. Inheritance is not an issue since even legal parents can disown us. We are saying that we need to know our identity for reasons of medical history, mental well-being, and because we deserve knowledge of our heritage as a right equal to everyone else. The ART practices that serve us and our parents while we are children are no longer applicable when we mature. Clinics and doctors who maintain control over information that we feel is vital to our sense of identity are counter to our interests. We do not feel that such records are medical since the actual process of artificial insemination through anonymous men is strictly not medical. This information is no more different than the genealogical information that is preserved in birth certificates and family histories. These records should not be under the control of the medical profession at all but under the jurisdiction of the state, available to us as adults as it is for anyone else (as adoption records should be as well). Why should policies established to protect children within a family structure persist when those children become adults? It would help your analysis if you separate the discussion into children’s rights and adult rights. Adoption reformers complain about the persistent treatment of adopted adults as perpetual children. Again, the semantics problem prevents us from considering what is good for human beings, not just children.

    Bringing into the argument questions about coital reproductive rights is also not relevant to us since we were conceived in non-coital sterile clinic, although it can be argued that sexual feelings are necessary for this conception and that penetration is also involved. Coital reproduction is strictly private while non-coital reproduction involves a profession that has a code of ethics governing their actions and has sworn an oath to the state that governs their license to practice. So government oversight, ethical reviews, and public scrutiny make non-coital reproduction subject to outside regulation. It also means that recipients should be subject to the same examination for fitness as potential adopting parents. Although it may be unfair that fertile people are free to procreate as they wish, it is reasonable the state has an interest in ensuring that adopting parents and ART recipients be screened to protect against the possibility of placing this child in the hands of criminals, child abusers, drug addicts, etc. Their infertility means that they seek the permission to have children through a socially controlled means. They do not have an absolute right to a child.

    By the way, we have had a history of controlling reproduction. Interracial marriage was once forbidden by law until the Loving v. Virginia (?) decision. Some states had laws denying marriage certificates to those they deemed degenerate, defective or criminal. One vestige of the shameful eugenics movement remains in place in a few states which still allow the involuntary sterilization of certain institutionalized people. The courts have also denied prisoners the right to procreate.

  7. Julie, I believe it makes sense to apply your distinction between forward looking and backward looking over here.
    Forward looking, we can not adjudicate from a child-centric perspective because the child does not yet exist, and thus has not rights as of yet.

  8. I also like Bill’s distinction between medical and reproductive. This has strong repercussions regarding confidentiality; It means that the donor’s medical information is considered protected information, but not his identity.

  9. Also, philosophically speaking, while we place great weight on children’s rights, we need not consider it the ONLY consideration. The right to bodily integrity is a very important right.

    We also admit that except in danger to a child’s safety, the government is no expert on who is a fit parent and who is not, and any claim that they are would likely be connected to political abuses, including abuses to the children they supposedly are trying to protect.

  10. The government is the instrument that society uses to protect its citizens. In order to perform that social duty, state legislatures create laws and assign authority to agencies to insure that adoption practices are done with the best interests of the child as paramount. So it’s not the government who would commit a political abuse of the child, since it has authorized others who are experts on determining standards for judging the fitness of potential parents. It is entirely reasonable exercise of the state’s police powers to do this, although the standards may not be perfect. At the least, bureaucracies that oversee adoption practices do an excellent job in screening adopters through professional social workers. They have the resources to run psychological screening, check criminal backgrounds for drug and alcohol convictions and physical abuse, histories of mental instability, provide home studies, and review records of chronic problems with financial irresponsibility. Certainly the social workers are not perfect and are often overworked.

    However, ART professionals do not have any expertise to handle this kind of scrutiny. This is why I feel that the medical profession’s much-vaunted ability for self-regulation is inadequate with respect to what is far more than a mere medical procedure, it involves the creation of families that share special issues with the practice of adoption. The ART profession has an obligation to the children they help to create. This is not merely a matter of a private decision between marital partners. The involvement of the medical profession clothes the practice of ART with the same social responsibilities to the public interests as those in adoption. It also involves legal and ethical issues concerning such children that require public oversight and legislation, something that the medical profession has failed to recognize.

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