I wanted to take a step back from that lively discussion of the legal and social status of a sperm donor for at least a moment. I want to think a bit about how the well-being of children fits into determining who is recognized as a legal parent.
To start with, it needs to be clear that being recognized as a legal parent is very important. The very first post for this blog, nearly two years ago, made this point. And you’ll find it elsewhere on the blog, too.
What I want to explore here is what bearing the well-being of a child or of children generally have on the “who is a parent” question? One possibility is that you could say that for any given child, you figure out who that child’s parents are by asking whether it would be good or bad for the child if each of the contenders was recognized as a parent.
While this might seem to have the virtue of putting the well-being of a child front and center, it isn’t what courts do. There are a couple of reasons for this. First, children are not the only interested parties in these cases–prospective parents have an interest to. Indeed, some people have a constitutional right to be recognized as a parent. For example, a woman who was pregnant with and then gave birth to a child that she was genetically related to could very likely assert a right to be recognized as a parent. That’s not because it would necessarily be in the best interests of the child to do that. I can think of scenarios where it might not be. It is because she has some rights, too.
There’s a second problem with doing an individualized determination of who the parents are for each child, based on that child’s interests: it’s totally unworkable. No one wants to do that for each and every child.
So instead of going child by child, what the law tends to do is offer up some broad tests for parenthood. So, for example, where a man is married to a woman who gives birth to the child, he is presumed to be the father. The woman who gives birth is the mother and so on.
This doesn’t mean that there isn’t any consideration of the well-being of children, it just means it is done in general way as opposed to an individualized one. So, for example, some court’s have adopted a de facto parent test. If a person acts as a parent for a substantial period of time with the consent/encouragement of the other parent(s) and not for money, then the person is a de facto parent, which in some states is a legal parent.
Recognition of the de facto parent can be justified by reference to the best interests of children generally. You’d say that if you think about the circumstances under which you’d recognize a de facto parent, it would generally serve the well being of the child concerned to recognize that person as a parent.
Of course, there’s no clear consensus about what’s in the best interests of children generally, and so there’s no consensus about what the tests could be. This brings me back to the recognition of the biological progenitors as legal parents. Some will say that it is generally in the best interests of the child to have these folks (there will always be two of them, one male and one female) recognized as legal parents. But others (including me) will disagree with that.
All of this is to say that when I say that biological relationship should not be the test of parenthood, it isn’t because I do not care about the well-being of children generally. It’s because I have a different view of what ensures the general well-being of children.