Charisma/Kristina and Setting A Low Bar

I’ve been pondering a recent CA decision (not really that recent, but never mind) in some recent posts.   Here’s one way of thinking about the case. 

There’s some well-established law you will find in many (but not all) states.   When we are looking to find a father for a child who will otherwise be fatherless,  we don’t set the bar for what qualifies a man as a legal parent terribly high.   It doesn’t take that much to hold a child out as one’s one–you must receive the child into your home and present her/him as your own child.   It has nothing to do with biology or genetic relationship.  

Charisma, as well as other women and on occasion the state of California, have argued that there is no justification for treating women differently from men in this setting.   That’s a simple and strong argument.   I certainly cannot think of a basis on which you can provide this legal avenue only for men.

So if a man in that position is presumed to be a parent, so a woman must be presumed to be a parent.   And just as you can justify the result for a man as a way to provide two parents for a child, so you can justify the result for a woman.

To me the real question to examine isn’t should we treat men and women similarly.    It’s whether we have set the bar too low for men and women.   Should more be required before one is entitled to claim parental rights?  

One thing to note in considering this question—this test is generally relevant in instances where (in the view of society generally, I suppose) there are too few people claiming parental rights to begin with.   It’s a last resort to enable us to avoid creating fatherless or, more generally, single parent, families.   And the reason the bar is set so low is to make it easy to find a second parent in those cases where the alternative is a single parent.  

So perhaps, we need to think about the alternative to a very low bar.   If we make it harder to claim (or be assigned) parental rights under this approach, fewer children will have gain a second parent this way.   Surely what we need to think about is whether this would be a good thing or a bad thing.  

Of course, one reason for the state’s eagerness to find that second parent (and in the classic situation, a father) is to find someone who can be required to support the child.    Indeed, that is why the state sometimes pursues these cases even where the individuals involved are not interested in doing so.    

And though the bar is set low, the standard is not unrelated to the well-being of the child.   The person who gains parentage through this test will always be someone who has a relationship with the child, who has in some real and tangible way, embraced the child.  

That said, I see two potential sources of concern.   First, there will be cases where the first parent does not want a second parent involved.   (Charisma is one.)   Whatever test we use, it must be one that allows the first parent to maintain her or his autonomy as a single parent if she or he consistently seeks to do that.   So as a general matter I’d be a bit wary about imposing a second parent on an unwilling first parent.   (That said, I think Charisma got it right. It appears from the record that there was a shared intent to co-parent rather than a consistent intent to single-parent.) 

Second, I might want to entertain some additional considerations if you had a case with too many, as opposed to too few, potential parents.   (This ought to be reassuring to those of you who would prefer a biologically related person to a holding-out person, though that isn’t the criteria I myself would use.)   I suppose what this means is that in a grand hierarchy of parenthood, I’m not quite sure where I’d place holding out.

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18 responses to “Charisma/Kristina and Setting A Low Bar

  1. It certainly seems that it is in the state’s best interest to pin parenthood on SOMEONE lest the economic burden fall to the state… welfare etc.

    • I am not a lesbian, however I am a grandparent who has three grandchildren that have been wrongly placed in foster care in the state of Missouri. I fully intend to utilize the psychological parent doctrine to pursue guardianship. I wish the best to all who seek to remain a part of a child’s life when that child views the adult with that kind of bond. My grandchildren have lived with me for 7 years and they are 9, 7 and 1. If I am not the “de fact parent” who the heck is?

  2. In a case of too many parental candidates, rather than too few, here are some criteria to consider-

    -bio relationships
    -relative fitness of the potential candidates
    -relationship already established with the child

    As for the last criteria, with regard to a biologically unrelated co-caregiver, I wouldn’t even consider it for a child less than a year old or even older, as the child is unlikely to ever remember or mourn that relationship. (They are likely however, to be aware of the absence of the bio parent no matter how early the separation).

    I would not place contracts, intents and agreements between the parents on the list at all.

    • For any given child, there may be (I think there are) two separate questions: Which people are the parents? Among the parents who do we pick?

      Typically we choose among parents by looking at something like relative fitness or best interests of the child. But we don’t decide which people are parents by looking at that. (That was what I was discussing in this earlier post. https://julieshapiro.wordpress.com/2010/03/01/the-interests-of-children/)

      I am not persuaded that what an infant might be able to consciously remember tells us about what relationships we should protect. Imagine a one year old child who has known one and only one caretaker. It’s true that the child may not have real conscious memories of that person, but it’s hard for me to believe that terminating that relationship does do great harm to the child.

      I’m not particularly impressed with intent myself, unless and until it is accompanied by actions. And I suppose that if I have the actions, I might not need the intent.

      • You raise an interesting point. What if one of the parties is the primary caregiver and the other is the breadwinner? Perhaps the child would be more traumatized being torn from its primary caregiver. On the otherhand, the breadwinner may be no less devoted, albeit in a different way, so that doesn’t seem fair.

  3. I believe that is setting the bar too low for men as well btw… Maybe I’m paranoid but I’ve read the pedophiles often seek to date and establish relationships with women w children in order to gain access to the children.

  4. (in fact based on my last comment, I’d worry MORE about a man putting forth a parental claim to an unrelated child that he has had a relationship for only a short time, as his behavior would be contrary to the societal norm)

  5. Kisarita, I’m personally aware of several instances where stepfathers/boyfriends have sexually abused their sons/daughters. In one of those cases the man upon separation fought for visitation, got it granted, and continued sexually abusing the child. ‘Parental rights’ always seem to take precedence over the welfare of the child. If the court had not been so wrapped up in ensuring that the ex-boyfriend got his ‘parental rights’ despite not being a bio father, perhaps the little boy’s behind could have been more safeguarded.

  6. There should be some law passed to eliminate all derivations of the words mother, father and parent from the legal lexicon along with all derivitives of the words son, daughter and donor. I’m not kidding, those words have become so contentious that its almost impossible to get down to the business of who should have custody of a particular child. People can refer to themselves as whatever they want privately, but the law should use clear clinical or contractual language to describe the relationship between adults and children.

    Use the genderneutral term progenator or procreator or immediate genetic forebearer to describe people who have conceived and or share common offspring, progeny. Replace the term mother and father and son or daughter on a birth certificate with the terms Male and Female Progenator. If either one or both progenators are contracted as anonymous progenators for a fertility clinic, their contract number and the name of the clinic should be entered on the birth certificate. That would preserve the progenator’s anonymity while ensuring that there are no falsehoods or misrepresentations on the birth certificate for their progeny.
    Anonymous progenators should waive their rights to offspring produced while under contract, however this seems inadequate given the seriousness of the situation and it also creates a gray area where there has been no legally recognized transfer of responsibility from the progenator to an adult who will perform those responsibilities for the progenator by proxy as with formal adoption proceedings. The clinic should have a short form waiver upon the birth of a contract progenator’s offspring, where the progenator has to specifically relinquish his/her offspring to be adopted by parties that will remain anonymous to the progenator. The clinic would file the form with the state and a defacto adoption certificate could be issued naming the adult or adults that wish to adopt the progenator’s offspring. It could all be done while protecting the anonymity of the donor and the clinic customer from one another.
    If DNA tests were performed at birth to confirm the names of the male and female progenator then the birth certificate would truely be an accurate certificate of the child’s identity and origin.
    Since progenator is a clinical term that cannot be used by someone who does not have genetic offspring using that term would ensure that the information on the certificate was a certification of the childs genetic origin. It would be impossible for a surogate or the spouse of a progenator to lay claim to the child without first going through the legal transfer of responsibility from the progenator to the party wishing to adopt.
    If we eliminate all the touchy titles it will boil down to progenators having the obligation to raise their progeny from birth to age 18. They can fulfill that responsibility themselves or they can elect to have that responsibility fullfilled by proxy through an adult or adults willing to perform those responsibilities on behalf of the progenator until the child turns 18 – legal adoption. The party adopting does not become a progenator (mother or father) they simply become the person empowered to make decisions on behalf of the child until the child is 18. They can call themselves mommy and daddy at home but legally they are simply a person that has custody of and responsibility for the progenator’s offspring until the kid turns 18.

    I’d really like to pass legislation, wish I knew how to do that.

  7. Marilyn, you’re really talking about only a tiny few of the many born that have genetic parents that have sold them or discarded them prior to birth. The terms mother/father are still highly relevant for those that value their children as more than a source of easy cash. The only solution to the ‘donor’ issue is to ban the anonymous selling of sperm and eggs and to make sure that all ‘donors’ names are recorded on the original birth certificate and then a second certificate issues as with all other adopted children. All people should of course be able to access their own original birth certificate.

    And I can already hear those shrieking, well if you ban anonymity fewer men and women will be willing to sell their eggs/sperm/children. To that I say, fantastic !!! Treating human life as a saleable commodity is repulsive!!!

  8. Marilyn I do not follow your logic that if the term progenitor is used instead of parent, that will lead to the progenitor being held responsible for parental duties. Quite the opposite, I fear that using such clinical terminology may further split and polarize the role of parent into two- the child makers and the child rearers.

  9. I think Marilyn’s idea is an interesting one, although I’m not prepared to say I’d support it. Let me see if I’ve got this down, though, before I think furhter.

    You start out with two people responsible for the care of every child–that would be the man and woman whose genetic material is used. The fact that they provided the material–that’s a timeless truth.

    Because of their genetic relationship to the child, they start with the legal obligations of caring for the child as well as the rights that enable them to make decisions. These obligations and rights can be transferred to others. (I’m a bit vague about how this can happen. Adoption yes? But perhaps also pre-birth via some sort of an agreement? I suppose we could consider different variations.)

    I assume if the rights and obligations are transferred that’s presumptively permanant. You’ve given up all your rights to care/control etc and someone else now has all those rights?

    The main point, as you state it, is that we’ll be using some other labels for these legal roles so that we can get beyond fighting over who is a mother/father/parent. Perhaps things would be easier to resolve if the law were not doling out these freighted social terms.

    I do need to think about this. The description of how the system would work is not so very different from how our current system works. And you cannot really avoid the hard questions of how and when the gamete providers can transfer their rights. But perhaps you can make it easier to focus on those questions.

  10. Thanks for taking the time to think about it anyway. I’m saying forget the terms mother father and parent. There is a fundamental assumption that those who create a child should be responsible for that child once its born. This is evidenced by all the unintended male progenators paying child support when they never intended to conceive or raise children. Automatically both male and female progenator should be held responsible at birth regardless whether they intended to conceive or raise the child. Also men are held responsible based on dna alone without ever being pregnant or giving birth and that same logic should apply to women who are the source of the dna for a child but were not pregnant and did not give birth. Then they should have to transfer their rights AFTER the child is born to whoever it is that wishes to perform the responsibility of raising their offspring for them. Adoption, yes that is what I am talking about. I think much of the confusion and mess with “who is the parent” in these ART cases stems from the fact that there are these off the record waivers of involvement by the progenators prior not only to birth but even conception. A naturally pregnant teenager who never intended to be pregnant or raise her child still has to wait until after the child is born to relinquish the child. Her name still goes on the birth certificate for the record as the female progenator responsible for the child. It is an act of her responsibility to make a legal transfer of that responsibility to someone willing to do it for her. And yup sadly she looses any involvement in her kids life. She can’t just give birth with the adopting couple in the room and go “oh I did not intend to raise my offspring – see that lady over there with the video camera and the teddy bear? She said she’ll raise her so put her name down on the birth certificate instead of mine because she intends to raise this kid”
    Of course there are people who have no offspring that may be better at raising a child than his own progenators. Thats a situation by situation thing, custody and financial responsibility guardianship and all that is not dependant solely on DNA, but I think there is a legal presdnt for saying you are responsible for whatever situations you create even those you created unintentionally(Negligence), unless someone else takes over for you on the up. Example marrying someone and assuming their debt.

    Progenator
    then
    Adopting Party/various types of legal guardianship/custodianship/social arrangements not legally recognized

    • I’m just going to pick out one sentence at the very beginning that I’m not sure about. You say “There is a fundamental assumption that those who create a child should be responsible for that child once its born.” First off, it seems to me that the latter part of this sentence could mean many things. Perhaps the doctor who does the IVF is a person who creates a child? Or perhaps the people who purchase a sperm and egg and commission a doctor to use them to create a fertilzed egg are the ones who create the child? Or perhaps the people who produced the sperm and egg are? It’s not clear to me who you mean to say “create” the child.

      Second, the construction of the first part of the sentence makes it hard to assess what you are asserting. When you say
      “there is a fundamental assumption” what do you mean? I cannot tell if you are asserting that IF one makes this assumption then certain things follow or whether you are suggesting it is in some ways essential to make this assumption or whether the assumption if fundamental to your viewpoint. Suppose I do not share the assumption? (I cannot tell whether I do or do not, because I’m not sure what the end of the sentence is meant to say.)

      Long ago on this blog there was some discussion (at a time when I mostly was talking to myself) about men who impregnate women at a one-night-stand. The law in most places does indeed treat them differently from sperm donors. I’m not sure this makes sense at all. Perhaps I shall revisit the topic. (I sometimes discover that what I think has changed over time–it’s always good to find out.)

  11. Sandy I would totally love to ban the the whole anonymous progenator for cash thing. But Cash is king I just think I’ve got a better shot at getting some kind of legislation passed for clear logical documentation of the origin of each childs birth while taking away the brass ring that everyone covets. You either have a biological relationship with someone or a contractual relationship or a social relationship. ART and lots of adoption words are about trying to make something that is contractual look biological. I just think it would go a long way in helping me reunite more families seperated by all kinds of abandonment. I’d love to ban it I agree with you. You get it on the ballot girl and I’ll vote for it.

    • This highlights an important consideration–what is possible (which is about being pragmatic) and what is right (which is aan exercise in purer reasoning.) I think both are important, but it’s very useful to think pragmatically about what might be acceptable compromises.

  12. Sandy.And i’d love to ban anonymity too but I’m picking my battles hoping to change something. Lets start with those anonymous people being responsible at birth so they have to get a grip on what they are actually doing. Make them give their offspring up for adoption, even anonymously. You’ll see what a huge slap of reality if a has to sign adoption paperwork on 12 to 15 kids before he’s 30. Thats real that is going to hit home.

  13. Julie
    When I say there is a fundamental understanding that people that create a child are responsible for that child I did leave it too much open to interpretation. So I’ll explain it better.

    A man and woman can intend to have sex without intending to conceive offspring together. If they unintentionally conceive offspring together they may not intend to raise their offspring once born. Once born however, there is a universal expectation that they are responsible for the child they conceived together even if conception was unintentional. Which is like the standard of care being negligence in any accident. The law puts their names on the birth certificate and they must then sign away their rights and responsibilities to another person(s) willing to take on those responsibilities for them. The law then also has a record of the childs origin and a record of who has custody and is raising their unintended offspring.
    There should be no doubt that someone who sells their own egg or sperm to a fertility clinic intends to conceive offspring, they just don’t intend to raise the offspring once born. They don’t think that their sperm or egg is being taken for research only with a guarantee that nobody will use it to create their offspring without their knowledge. So its different than sex where you might not intend to conceive but you are still held responsible. I see no reason why a person would still not be responsible even more so if the conception is intentional. The law does not allow transfer of responsibility for ones offspring prior to birth in adoption, so why then is it allowed in artifical reproduction? Shouldnt the identies of the progenators still be recorded and shouldnt the transfer of responsibility occur subsequent to that so that all the cards are on the table and that custody of someone elses offspring is documented and recognized legally?

    When I say fundamental I mean the law orders men to pay child support on offspring they did not intend to conceive or raise based solely a DNA as evidence that they created a child. He is responsible for his offspring even though he was not pregnant and did not give birth and lacked intent across the board. How then can intent come into play at all when determining who is responsible for a child once born under any circumstances whether its a woman or a man? Why then are not all transfers of responsibility documented after the child is born?

    Do we really want to suggest that life begins before birth? The fact that someone paid to have a person mated with another person does not mean they created the offspring. I guess the word I should always use is conceive. Its your offspring if you conceive in a dish or a bed.

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