There’s been a good deal of interesting discussion here recently–frankly more than I can keep up with. I don’t want to keep going over the same ground, so I thought I’d take a step back here and try to look at things more broadly. While writing about/thinking about concrete cases and fact patterns is useful, sometimes one does want to see what the forest is like.
If I think about instances where we need to decide legal parentage, it seems to me I can divide them into two groups. There are instances where the question arises somewhere down the road, in the middle of some child’s life. The recent case from Kentucky is one of these and, more generally, the de facto parent cases are in this category. In these instances, individual cases require judges to apply and/or formulate law. The law then applies not only to the case at hand, but also to other cases that are legally similar.
But there are also instances where we are asked to decide this question at a much earlier stage, before the life of a child has begun. So, for example, a legislature considers whether a gamete donor is a legal parent. The law created by the legislature then informs the actions of people in the future. Here I think decision makers, of the legislature, are more free to think generally about what a good set of rules might look like.
The rules that arise in this second set of circumstances are forward looking and generally facilitate planning. So, for example, the law tells me that a sperm donor will (or will not) be a legal father and so I can plan my future course accordingly.
By contrast, the first set of cases I mentioned–the one’s that arise in the middle of a child’s life–could be (and I think should be) determined by looking backwards–at the existing situation, the reality of the child’s life up to the point in question.
I’m wondering if is useful to distinguish between forward looking and backward looking rules. (If it is, I’d have to work on it a bit more–I think it is rather fuzzy.) It seems to me that it might be.
A set of rules that allow people to plan is obviously useful. Particularly given the range of ART options available, people need to know the legal consequences of embarking on various courses of action. But it isn’t only ART that necessitates planning. A man considering marrying a woman who is already pregnant should know that one consequence of marriage is that he will be presumed to be the legal father of the child when it is born.
You could (and probably should) aspire to have your first set of rules be as clear and comprehensive as possible, so that to the greatest extent possible, people know what to expect. But even if you do this, you will be confronted with instances where the planning rules may not be adequate to the task.
There are several reasons why this will occur. First, no matter how good the planning rules are, some people will not be aware of them or will not fully understand them. (This is true particularly as access to legal knowledge is often dependant on having the money to hire a lawyer.) Second, situations might apply that are beyond the contemplation of the planning rules. And finally, sometimes people will plan to act in one way but will in fact act in a different way. I’m generally inclined to think that we should attend to what people actually do rather than what they might have intended to do. (I hold particularly firm to this rule with regard to my children’s regularly expressed intent to clean their rooms.)
This last situation–where people intend to act one way but in fact act another–creates especially difficult situations in family law. I may say that I am going to be a parent, but if I do not act the part, then my words are of little practical meaning to the child I have abandoned. It’s not hard to see why courts might prefer to determine cases based on reality rather than on unrealized intentions.
I think this tension–between a set of idealized rules and the individual realities of some children’s lives–is at the core of some of the disagreements we’ve had on this blog. I’ll be giving this possibility a bit more thought in coming days.