Who’s A Parent and What About the Best Interests of the Child?

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.

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13 responses to “Who’s A Parent and What About the Best Interests of the Child?

  1. The acceptance of genetic donor as legal parent merely affirms a societal paradigm that the donor will contribute resources of some sort to the child.

    When resources are not to be contributed and that disconnect occurs via contract and/or medical intervention, the traditional societal view no longer applies. Therefore, to be seen as rational, a best interests analysis, if even possible, must minimize the biological connection in the equation.

    Certainly the extreme is seen in those States which support assisted reproduction as they remove genetics entirely from their best interest analysis in favor of predictability.

  2. I see no problem in granting additional people parental rights so as to create three or four parents for a child if this is done with the consent of the genetic parents and/or the court. But I have a huge problem with eliminating the genetic parents from parental status except through a formal order of the court when it is either clear that they are unfit, abusive or give up their parental rights after very careful conssideration and with due safeguards after the birth of the child.

    It is my considered view that genetic parents should be the preferred people to parent a child and hence if others also want to be parents of a child extremely high scrutiny should be applied to their claim, particularly if they are to replace the genetic parents and not just to be added to the roster of parents.

    As a mother I know that I understand my children far more than teachers, nannies or anyone else because I recognize similar behaviour patterns or reactions that I used to have as a kid and which they have uncannily genetically inherited. Most genetic parents can report the same such just innate capacity to understand their kids without much effort needed. There seems to me to be a fundamental bond between genetic parents and children that is just there and does not have to be created but with adoptive or de facto parents the bond needs to be developed and worked on constantly. Although non-genetic parents can have a very strong bond with their child. It is by no means the same bond as between genetic parents and their children, it is of a different caliber.

  3. As a non-genetic parent of three, I have to respond to your conclusory statements.

    Children identify with caregivers, not genotype. Children understand and seek out stability, not phenotype. To say that stepparents are lesser is insulting. In my personal and professional experience, stepparents do not manipulate the environment to parent (v), they are parents (n), and good ones.

    You offer a “considered view that genetic parents should be the … preferred parents.” You support that statement with a conclusion that there is a “fundamental bond between genetic parents and children…”

    There is a line of reasoning in which the origin of a claim or thing is taken to be evidence for the claim or thing. Perverse that it be termed a genetic fallacy.

  4. Children understand context very well. By a certain not very advanced age they understand the difference between a genetic parent and social parent quite clearly. Children can identify with a close caregiver very well, they can love a nanny, step-parent, adoptive parent, teacher and other close people in theit lives but they also identify with phenotypic similarity. a favorite activity of my children is to discuss what features they got from me or their father. They know that they are made 50% of dad and 50% of me. Despite being fairly young aged only seven my daughter philosophically remarked recently “when you die Mom you won’t really be dead because half of you will still be alive in me.” I told her that was true and we hugged and kissed, we felt intensely close. Indeed my daughter is half me and I do live in her. Such a conversation could never occur with a social parent. Children of social parents understand fully that they are not biologically related and feel differently towards social parents.

    • While I do not question your own experiences I do deeply disagree with you on a general level.

      For instance, while I agree that kids make various distinctions among caregivers, I would draw the line in a significantly different place. I would not put the nanny and the teacher in the same category as adoptive parent. Adoptive parents typically make an unconditional commitment to be there forever. Nannies and teachers do not. I think kids do see that difference.

      I think children are a legacy all parents, whether biologically related or not, leave behind. Part of my parents lives on in me, but that’s not because of genetics. It is because they shaped me be the human being I am, because they loved me and cared for me and taught me, because they made me who I am.

      As for your last sentence, I agree that SOME children of social parents feel differently towards their parents, but I do not agree that all do. I imagine, though here I am only guessing, that the parents involved generally shape how the children feel about these distinctions.

      Ultimately I think we disagree about the possiblity of making such generalized assertions. Experiences vary. That’s part of what makes it so difficult to design legal solutions.

  5. I have to echo Robert’s and Julie’s comments. I am a non-genetic father of two children (wife’s eggs, donor sperm) and the idea that I could not have a conversation about “traits” with my daughter (a precocious 8-yr-old) is ludicrous.

    But here’s where it gets really interesting. Ms. May says:

    “Most genetic parents can report the same such just [sic] innate capacity to understand their kids without much effort needed. There seems to me to be a fundamental bond between genetic parents and children that is just there and does not have to be created but with adoptive or de facto parents the bond needs to be developed and worked on constantly.”

    Ridiculous.

    There’s no way you can say that with any authority because you are not an adoptive or “social” parent. Just as I cannot say that I have a closer bond with my kids than you do.

    I spend a lot of time with my kids, and so does my wife. But perhaps because I grew up the youngest of four boys, I am especially sensitive to kids’ feelings, especially in group situations when they feel overshadowed or left out, as I often was.

    Because of that, I often am able to sense when my kids are getting bored, annoyed, about to have a meltdown. I’m not prescient, and I’m wrong a lot too, but I know my kids pretty darn well; I would even go so far as to say I can “read” them (but don’t ask me when my daughter’s a teenager).

    Not to say that their biological father wouldn’t see a bunch of similarities and attain (after some time) an intuitive feel for “his” kids. My kids also might feel some type of “innate” bond with him, I’m not denying that.

    But to place one (genetic) above the other (social) on the basis of your own experience and observations is simply wrong.

    I don’t doubt you have a strong and loving bond with your daughter, but please don’t compare it unfavorably to mine, and others like me.

    We’re all parents, and if we are THERE for our kids, I don’t see a hell of a lot of difference.

  6. Firstly, I’m very glad your experience is working out. Far too many times – it just doesn’t in your type of situation.

    You said: But to place one (genetic) above the other (social) on the basis of your own experience and observations is simply wrong.

    However, you have done precisely this. You’ve made a generalized sweeping statement extrapolated from your good relationship with your children. But in many heterosexual families with donated children, the couple break up and the father rarely has much interest in the kids thereafter, much less than men with genetic children.

    • I think it only fair to start here by saying I have deep skepticism about social science research in areas of family law/family dynamics. There are so many factors at works that it is difficult to do a good study. It’s also easy to end up with a biased study or to mistake correlation for causation quite unintentionally.

      All that said, I have never seen a study that shows that donor kids are rejected by a non-genetic parent at a particularly high rate.

      And if there is such a study, I wonder how the authors could be certain that the genetics of donor sperm is what caused the rejection. It seems to me it could just as easily be that these fathers are being told that they aren’t really equally fathers. Getting told that frequently enough will sometimes take a toll.

      I know that sometimes when a lesbian family with two moms is out and about, people will ask ‘who’s the real mom?” This question is destructive to the family and everyone in it. Both women are real moms. If you make someone feel like they are second-rate, sometimes it can be a self-fulfilling prophecy. That, more than anything else, worries me.

  7. Sandy —

    Which statement of mine is “generalized [and] sweeping”?

    Is it when I said, “We’re all parents, and if we are THERE for our kids, I don’t see a hell of a lot of difference.”

    That is based, in part, on my own experience, but also on my observations living in a town with a very diverse “parent base” — gay and lesbian couples with kids, adopted and otherwise, families with children adopted from Asia and Central America, single parents, and “traditional” families. It runs the gamut. The love and caring I see do not seem much different from one family to another.

    I was careful to be balanced in my comment, as when I said “I cannot say that I have a closer bond with my kids than you do.” (Why? First of all, quibbling about it is a waste of time; it’s unquantifiable and pointless to pursue. Secondly, I don’t know you and your family and and you don’t know me.)

    Perhaps this is the “sweeping” statement — “But to place one (genetic) above the other (social) on the basis of your own experience and observations is simply wrong.”

    Perhaps if I had worded it this way — “But to place one (social) above the other (genetic) on the basis of your own experience and observations is simply wrong.”

    It cuts both ways, which is why I stressed at the end that if we love our kids and are there to support them through all their trials and tribulations, it doesn’t amount to a hill of beans whether we are genetically related or not. Put another way, genetics is not the overriding factor determining our relationship with them.

    And as Julie said, I doubt there’s any research showing that “non-genetic” children are abandoned by their parents (though you said “fathers.” Why is it always the fathers who get slammed?) at a rate higher than that of genetic fathers.

    Lastly, I think you should come up with a different descriptor than “donated children.” Just doesn’t sound very thoughtful — or accurate.

  8. Julie, the suggestion that some non biological parents might reject their children because of some rude questions by obnoxious outsiders totally reinforces Sandy’s point that the connection is weaker.

    • I assume this is a reference to my point about the “who’s the real mom” question?

      I didn’t mean to suggest that social forces cause people to reject their children in any general way. But I do think that social acceptance/support or and absence of the same has consequences. For me, this doesn’t tell us anything about the initial strength or weakness of the bonds at issue. And it will manifest itself in different ways in different families.

      I think others have commented here that if we consistently expect less from men and assume they will not display much commitment to their children, we are probably not encouraging men to act as fully commited parents. I’d say that’s the same phenomena–we’re all to some degree subject to societal influences.

  9. Steve, You said: Lastly, I think you should come up with a different descriptor than “donated children.” Just doesn’t sound very thoughtful — or accurate.
    Well, it is as accurate as describing a man who sells his sperm as a ‘donor’ – he’s actually a vendor! When you get around to admitting that you bought another man’s children from him, I’ll acknowledge that they are yours because you paid good money for them! That after all is the only basis in my view that you have to claim them as your kids. Their father sold them and you bought them!
    In my view for social fathers to genuinely become fathers they should go through the process of adoption, otherwise becoming fathers through being the husband of the woman giving birth in my mind is a very weak status!

    • Perhaps there are two different issues lurking in the language here.

      First there’s the “donor” question. It does seem to me that men and women who provide gametes in exchange for compensation probably ought not to be called “donors.” Maybe they should be gamete/sperm/egg “vendors” or perhaps “providers”. Or maybe the ones who get compensation are “vendors” and the ones who get only costs are providers” and the ones who recieve no compensation are “donors.”

      Then the second question is whether the gamete providers are or should be legally recognized as parents. I think that’s been discussed at lenght although no agreement has been reached, obviously.

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