My main purpose in starting and maintaining this blog is to consider the question of who the law should recognize as a parent. I take individual cases and news events as they come and try to use them to illustrate various points–how the law is, how it might be, where it is good, where it is bad, and so on. But from time to time I think it is useful to step back and think more broadly. I’ll take this as one of those times.
There are a number of different tests you might use to determine who the parents of a child are. Each has strengths and weaknesses, which are discussed elsewhere on the blog. Part of the challenge is that the question arises in so many different situations. ART in particular gives us a whole range of new complications, but there are plenty even without that.
Possible tests include :
–Genetics–that is, the people whose egg/sperm are used;
–Intent–the people who intend to be the parents of the child, at some identified critical point (presumably before the child is concieved, certianly before the child is born);
–Function–the people who act as the parent of the child for a some specfied period of time (could be fixed, like two years, or could be defined as something like “a substantial period given the age of the child.)
–Giving birth–I think this one is obvious. Often matches up with genetics, but need not, these days. I tend to see this one as a special case of function, which is why I list it here.
–Relationship to someone already a parent–the classic here is that if a married woman gives birth her spouse is presumed to be a parent of the child. Can obviously be broadened to include other types of relationship (like domestic partnership).
–Adoption–people who formally adopt a child are parents–that’s the whole point.
Now if you go back over the blog, I think you’ll find instances in which every one of these tests has been deployed. And of course, you can mix and match them. Some people have multiple factors going for them–they intend to have children, they are genetically related to children they give birth to and they act as the children’s parents. Those tend to be easy cases.
The hard cases come when you have competing contestants, or where one person wants to cut another out, as in the new Montana case. One person claims one basis for parenthood, and someone else claims a different one. Or there are cases when no one wants to claim parenthood and we need to find someone. (Not long ago I wrote about a case where a man who had functioned as a father for 13 years sought to sever his relationship with the child by asserting that it turned out he lacked the genetic connection something he apparently knew all along, but never mind that.) How to decide these?
Cases like this seem to me to suggest we have some sort of hierarchy. So, for example, to reach the result the court did in the case I just mentioned (he’s still the father) it had to say that function (and the relationships constructed based on that function) trump biology (by which test he was not the father.) Again, you can look back and find many instances in which one test seems to overcome another.
And I guess this is my present question. Is there some hierarchy and if so, what is it? Actually, I suppose I really mean should there be a hierarchy and if so, what should it be? After all, I’m more concerned with what the law ought to be than with what it is in any particular place (it varies so very widely.)
You could start, I think, by deciding if there are some tests you want to throw out entirely. So, for example, you could outright reject an intention test and say that will never work. But if you come down to an assortment of tests you will accept, then it seems to me you have to decide which is best and which second best and so on.
It might be possible to duck this question by saying that it is all situational. In other words, you’ll decide each case as it comes along and one time, as in the case I mentioned above, function might trump, but in the next case, genetics might do so instead. I don’t find that very satisfying, since it seems to be more like ad hoc decision making and less like law.
I think that’s enough to start with. Watch this space, as there is surely more to come.