Should There Be A Middle Ground?

I was fortunate to be at a conference on Motherhood at Denver University this past weekend.   Better still, I was on a panel with Wendy Kramer, founder of The Donor Sibling Registry.    Bright and early Saturday AM we had a lively discussion about some of the issues around donor insemination.  

The discussion got me thinking about the way we’ve structured legal relationships with children.   It’s a pretty stark binary.   There are parents (most often two) and then there is everyone else.   Legal parents have rights and obligations with regard to the child.   Virtually no one else in the world does.   For the most part, relationships like grandparent, aunt or uncle, even sibling, a legally irrelevant.    Everyone who is not a parent is in the same category, whether it is the piano tuner or the grandfather.  

Further, the law protects the rights of parents to organize their family life as they wish.  I’m not saying that’s necessarily a bad thing–if parents don’t want their kid to watch television I don’t think the neighbors down the block or their siblings or even their parents should have any legal right to interfere with that decision.   But taken with the parent/non-parent categorization above, it makes for some pretty stark choices. 

When you think about a man who provides sperm (and I really will try to more about language–if he is paid, “donor” is not accurate) he must be either a parent (with all accompanying rights and obligations) or a non-parent (with no rights or obligations.)   I wonder if the starkness of this choice, which is essentially all or nothing, is part of what creates such fierce debate around this question.   

Although I’m not persuaded this is a good idea, I think it’s at least worth examining.   Suppose we created a legal category for gamete providers who were not going to be parents?   (I know you could raise questions about gamete providers who change their minds, say, as well as other circumstances, but I would like to set those aside for now.)   

Gamete providers would be have a protected legal relationship with the child.   This might provide a basis for the imposition of some obligations (perhaps to promptly notify someone if some new health-related information becomes known to them and to keep the child’s family apprised of their whereabouts) and perhaps they’d have rights.   (I’d have to think about what these might be.)     

Critically, gamete providers would not be legal parents.   Neither would the be able to interfere with the main rights of the legal parents.   Gamete providers would have no right to  participate in the major decisions about the child’s life, although parents might include them in the process if the parents wished to.   They would have no right to object if the child’s parent(s) wanted to move to another location.   They would have no right to communicate with or spend time with the child.    

I realize, of course, that for people who assert that the existence of the  biological link should make a person a full legal parent this will be unacceptable.   But in all likelihood, nothing that satisfies me will satisfy them and vice versa.    Some of us may just need to agree to disagree.  

What struck me at the conference, more than once, is the complexity and richness of family life, the many ways families are formed, the way they may change over time.  This vibrancy suggests that perhaps the law needs to be a little more nuanced, a bit more imaginative than a simple parent/not-parent binary allows.    At least for now, I think it is something worth thinking about.


11 responses to “Should There Be A Middle Ground?

  1. He can be a biological parent, but still have no legal parental status.

    I think not even the most diehard commenters on this forum, have dared to suggest that an anonymous sperm donor if he show up one day should have any say over the child’s life. I don’t recall even one such suggestion.

    Thus, the resistance to the use of the word father at all is not coming from a legal concern, it’s coming from a psychological and political interest of particular groups who find it psychologically threatening to their own status.

    • Maybe you are right. My recollection was that some had taken the more extreme position you describe, but maybe not. If you are correct–if this is more a matter of terminology (what we call him–donor, provider, father) rather than legal rights, then there ought to be more chance of finding middle ground.

  2. I also wonder whether it is wise to place a biological parent in a “partial” role. He is very likely, over time, to view the kid as his, even if he did not originally intend to do so. He may strongly disagree with the way the kid is being raised. And feeling justified as their parent, as he does it is cruel to leave him in such a helpless ineffectual position. Personally I am sure I would be choking with resentment. (Picture a biological mom in that position- wouldn’t you relate?)

    This goes back to your question “How to promote lesbians to choose known donors” who will have the role of “Uncle” in a child’s life. A limited, non parental role that you describe in this post.

    Well how about this. Why doesn’t one of them have sex with an undocumented immigrant, and threaten him with deportation the moment he should dare to present himself as anything other than Uncle Jorge. Would you consider that ethical? I doubt it. But After all, without uncle Jorge they might choose an anonymous donor!!!!

    I don’t see that as any different.

    Sperm donors from a bank are actually the LEAST stickiest situation. There is really no need to develop a new system or new nomenclature to deal with them. It’s the leaving partially recognized parents, the daddy/uncles at the mercies of the other parents that create the complications.

  3. Julie, as always, puts on the table a difficult question. At the oral argument in the Debra H. case in New York, several members of the Court asked questions that showed their concern about whether the case might open up the possibility of more than two legal parents. Both party’s lawyers were quick to assure the judges that that was not their aim. Looming in everyone’s mind was “the nanny” – if the non-bio mom could have standing for visitation as a functional or de facto parent, why not the nanny? (Probably a woman of color who is “hired” to love the child.) But what Julie is raising is that the donor is a more likely candidate for some legal status as a third adult with legal rights relative to the child. I share Julie’s concern that the non-bio-mom visitation cases are being argued on the promise that they will not upend the existing binary in law: you’re either one of the child’s two parents or a stranger. Surely we can do better than that.

  4. Firstly stop the sale of sperm and eggs. I’m not persuaded that it should ever be OK for someone profiting from the sale of their gametes. Secondly, abolish anonymity. Then acknowledge these progenitors status by calling them abdicated parents because that is what they are. Finally, require all abdicated parents to provide true and accurate medical info prior to donation on penalty of a significant fine if they knowingly omit some pertinent medical fact and transmit a hereditary disorder.

  5. Julie, you say: “Legal parents have rights and obligations with regard to the child.Virtually no one else in the world does”. This is true in most western countries, but not everywhere. In Germany, obligation to support family run up and down four generations. A great grandfather has to support his great grandson and vice versa. At the moment the income limit is 60,000 Euro, so it is rarely used, but this may change because of the demographic development (collapse) of Germany.

    In view of the poor western demography I think it is safe to say that extended family responsibility is soon coming to a place near you.

    I miss the perspective of the child. A child can’t influence the way it was conceived. Why should its rights be determined by the method of conception?. We talk a lot about discrimination against adults, but not much about discrimination against children.

    • I wasn’t aware of the obligation that German law imposes–that’s interesting. Thanks for raising it. I wonder whether any entitlement to participate in the child’s life or to occasionally visit with the child comes with the obligation to support? The US may be the extreme version of the nuclear family model for all I know.

      I think we might generally agree that the rights of a child should not be determined by the method of its conception. But it is harder to give that real meaning than it might seem.

  6. awesome law from germany!

  7. It’s almost the same law in Malaysia and even in Oregon a child has to support a parent, but not a donor offspring, although one donor did try to force his dotcom donor offspring to support him and pay for his naturally conceived children’s college education – interesting case but sealed!

  8. If everyone stopped using the terms the family building industry wants us to use, everything gets much clearer. Nobody is donating or selling eggs and sperm. Some people are willing to conceive children with anyone for a fee and then sign away their rights to raise their own offspring with the person that they conceived them with once they are born. Thats it, thats whats really going on. Clinics have these people under contract and customers choose which people they want to mate with to conceive offspring with favored traits and then the clinic has to remove either egg or sperm from them in order for the two people to mate and conceive without sexual contact. This is not fertility treatment; the fertile remain fertile and they conceive offspring together. The infertile remain infertile but get to pretend to be the progenators of their step children, they even get to put their names on the kids birth certificates which is just ridiculous.
    Pleanty of men are paying support for children they never intended to conceive or raise based solely on the fact that they are the origin of some childs DNA. Their names are entered on the children’s birth certificates as the male progenator as well they should be. DNA establishes who is responsible for a child at birth and the only way to transfer that responsibility is through adoption on the record. Furthermore the fact that a man’s offspring did not develop or get born from his own body. He is still responsible for his progeny once born. The law needs to apply that same simple line of logic to women now that a woman can be the source of a childs DNA without ever having been pregnant and without having given birth to the child. The situation is EXACTLY the same as that of a man now and should be treated as such. The only way to transfer that responsibility after the child is born should be on the record through adoption.
    If the maternal or paternal progenator is anonymous the birth certificate should give the anonymous persons clinic ID number so that the center for disease control can at least start to keep track of how many offspring these people have. And these anonymous people should be notified of each and every birth and should have some sort of a short form adoption process allowing the step parents to adopt the children quickly while maintaining the anonymity of the progenator (because I just don’t think we’ll get away from that like it or not). But in no case should the birth certificate reflect the names of people who are not the origin of the childs DNA. The real progenators should have to relinquish control of each child individually. I think the clinic should tell these anonymous progenators exactly what situation their child is being adopted into as well because they just might change their minds and seek partial custody. I bet many anonymous progenators would seek partial custody if they knew that their offspring was conceived with another anonymous progenator and gestated by a paid surogate to be raised by nobody with a genetic link to him/her. In fact seeking partial custody in that situation would be merciful considering pain most of these kids feel growing up.

  9. Sorry for my late answer to your question. According to Neil Ferguson, Germany and Italy have granted rights to grandparents to seek contact with their Grandchildren provided that contact is not likely to jeopardise the welfare of the child.

    The obligation on grandparents to support their grandchildren was repealed in England and Wales in 1948 together with the rest of the “poor law” (in Scotland the “poor law” was only repealed in 1985)

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