After reading the NYT magazine article, writing about it a bit and then reading the comments to my posts and on the magazine site, I’m left with this question: What makes DNA so difficult? Surely it must have seemed that having reliable and relatively inexpensive DNA testing would make legal parentage questions easier. Why hasn’t it worked out that way.
As one commenter on this blog pointed out, DNA does make determination of biological parentage easy—it’s a scientific test that yields a simple yes/no with a very high degree of reliability. It guarantees that all children will have two parents (one male and one female.)
But its very strength is also its weakness. While DNA gives us a clear and clean answer, the lives of many children are not so clear and clean. DNA is inflexible and fail to account for the diversity of children’s lives.
Some children have, in actual practice, only one parent and live in happy families. DNA can add another person to the mix, but in the process it may do far more harm than good.
Other children have two parents, but only one of them is genetically related. This might happen because of deceit, as is true in the cases discussed in the NYT, or it might happen because gametes from a third-party are used to create a child. Or perhaps neither parent is genetically related to the child. Using DNA as the defining factor here can only shatter the family.
And some children have more than two parents, which DNA tells you is just flat out impossible. All DNA-based parentage can do in this context is cut children off from some of the adults who love and care for them.
Perhaps it would be easier to think this through if we started by taking a step back. DNA clearly tells you the genetic origins of the child. It links the child to the two adults who provided genetic material, each of whom is in turn linked to two adults who provided genetic materials and so on. This information may well be important for many reasons, but why would we expect it tell us who should be legally responsible for and to the child?
The essence of the argument is that it is in our nature to love and care for those who are genetically related to us. This assertion itself rests on an evolutionary argument that we are motivated, above all, to ensure the perpetuation of our genes.
I’m deeply suspicious of this kind of invocation of nature. We know there are genetically-related adults who have never played a role in the life of the child who carries their genes and that there are wonderful actual parents who are not genetically related their children. And while there are also genetically related adults who are wonderful parents, can we say they are wonderful parents because they are genetically related?
I think there’s much more to the parent/child relationship than a simple desire to perpetuate one’s genes. In any event, there are far too many exceptions to enforce this as an absolute rule.
We ought to expect a bit more of law than that it look for simple and easy answers, especially where they do not fit particularly well. Indeed, one of the hallmarks of family law is its consideration of individual circumstances. Why should we do any less when we consider who is a legal parent? I don’t mean to suggest that we ought to do each case as it stands without generating a set of rules. But the rules need to be flexible enough so that there’s a fair chance that they’ll work for the vast majority of cases to which they will be applied. DNA simply won’t do. Perhaps it can play a role (though I’m not sure what that role might be) but it cannot be the be-all and end-all.