The Power of Law to Give Meaning: What’s a “Natural Parent?”

One of the many forms of parentage I’ve discussed here is “natural parentage.”   That’s often paired with “adoptive parentage” in law.  The common understanding of this, I think, is that there are two paths to parenthood–one by action of law (that would be adoption) and the other by action of nature.   But here’s a story about a case that demonstrates that law creates natural parents as well as adoptive parents.   (I cannot find a reliable link to an on-line version of the actual court opinion.   Sorry about that.) 

This is one of the string of intra-lesbian custody disputes where one lesbian mother asserts the other is a stranger to the children involved.   You can find a bunch of them on my blog, I’m afraid, as it’s not as uncommon as I could wish.    

Renee Harmon and Tammy Davis began a relationship some time in 1989.   During the relationship Davis had three children, conceived via assisted insemination with sperm from and anonymous provider.   The children were born in 1999 and 2002 (twins).  

There’s a dispute over the extent to which the decision to have children was a joint decision–Harmon says it was while Davis asserts that Harmon merely acquiesced in Davis’ decision.   But it is undisputed that Harmon was present at the births and cut the umbilical cords.  Harmon also asserts that the two women jointly chose names for the children and agreed on godparents and baptism, and Davis does not dispute these assertions.   Harmon also asserts that Davis returned to work after the birth of the twins while Harmon became the stay-at-home parent.  Again, it appears that Davis does not dispute this (although I don’t think she admits it either–I think she is silent on this point.) 

There would be no case if the parties relationship hadn’t fallen apart,which it did in 2008.   Initially the parties entered into an agreement to share parenting time.   But their relationship continued to deteriorate and Davis eventually terminated Harmon’s time with the kids.    

Davis is clearly a legal parent, by virtue of having given birth to the children with whom she also has a genetic relationship.  The question here, as is typical in these cases, is whether Harmon has any rights at all.    Initially the court concludes that Harmon has no rights as a third-party.   (She’s not a guardian, for example.) 

The court then turns to the question of whether Harmon might be a parent.   In Michigan a parent is defined as “the natural or adoptive parent of the child.”  There’s no adoption here, so the only question is whether Harmon is a natural parent of the children.  

The court concludes that Harmon can be considered a natural parent if the court finds there was an agreement to raise the children together.  (I would imagine that given the period of time during which the women cohabited after the birth of the children, it will be possible to prove the existence of such an agreement.) 

The court recognizes that the initial meaning given to “natural parent” is tied to biological relatedness.   But it notes that Michigan has extended the status of natural parent to people who have no genetic connection to the child.   The court relies on the following quotation from an earlier Michigan case: 

“a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time ….(2) the husband desires to have the rights afforded a parent and (3) the husband is willing to take on the responsibility of paying child support. 

In many ways the the court’s reasoning is similar to that used in a couple of other cases I’ve written about before–bodies of law intended to confer parenthood on men are referred to in order to confer parenthood on lesbian partners.    

What this opinion demonstrates–quite powerfully–is that the legal meaning of “natural parent” is not the same as the common meaning of “natural parent.”    Harmon may be legally deemed to be a natural parent.  

This means that “adoptive parent” and “natural parent” are both legal constructs.  Neither is created by nature.   The critical distinction is that one becomes a natural parent without engaging in legal proceedings while to become an adoptive parent one must engage in legal proceedings.  That’s a rather striking idea.

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22 responses to “The Power of Law to Give Meaning: What’s a “Natural Parent?”

  1. marilynn huff

    Its outrageous that the mother of these children can’t sever her relationship and make a decision about what is best for her children. Had she wanted her ex to have parental rights over her children she would have allowed an adoption to take place durring the course of their relationship. The idea that the court can force this person on this mother and her children as the “natural parent” of her own biological children is outrageous. There was no adoption. What if her ex is a crack pot and she’s glad that she did not ever allow her to adopt her children so that she can get away from her? What if the children don’t really even like her? So what if they do it is the mother’s right to sever the relationship with her ex. What rights does her ex have now as a legal parent can she prevent her from moving to another state? Can the ex force the mother into a 50% custody relationship where she will loose her babies 50% of the time to her ex? If this woman wanted to be the parent so damn badly she should have either had her own or made some attempt to adopt them. This is so dangerous that a family could be forced to share custody of children with an ex girlfriend. So what if they lived together for several years – really so what. If I were in a committed lesbian relationship and I had children of my own I would almost want a preemptive document signed that says my partner would never assert parental rights over my kids no matter how close they became. Its just terrible.

    • Lots of time there’s no adoption because people aren’t that attuned to law. They don’t know that they can adopt. They don’t know that they need to adopt. They don’t think the worst case scenario will ever happen to them. They don’t have the excess cash (it can be fairly expensive). Or they cannot adopt because second-parent adoptions aren’t allowed where they live. (I think this might be the case in Michigan, actually.) All of which is to say that the presence or absence of an adoption tells us very little about the qualitiative relationship between the parties.

      I also agree with Kisrita here. Ten years is rather a long time–and that’s ten years after the birth of the first child. You raise a concern about what if the children don’t like the partner. What about the reverse–what about if they love her, are bound to her, think of her (in a non-legal way) as their parent? I don’t think I want to suggest that the feelings of the children should control things–ten-year olds can be somewhat erratic in their expressed feelings at any given moment. But if you want to think about them, then you’d best think about the alternative possiblities.

      And all the horribles you raise–they could equally well happen with a biologically related parent, in which case we’d figure out how to deal with them. Perhaps there would be grounds for terminating parental rights. Perhaps there would be grounds for limiting contact or only restricted visitation. But we’d start from the assumption that the person was a player in the children’s lives and then see what it made sense to do.

      That, to me, is how one needs to proceed here. If the woman was a primary parent to the children for a number of years, then to simply cast her aside becasue in some cases it would make our lives easier is doing a terrible harm to kids. I think most child pychologist types would tell you that disrupting those sorts of bonds is damaging to kids.

      I know I am frequently accused of taking an adult-centered approach to all this, and it’s true that I sometimes do focus on the rights of adults. But here I would also like to invoke the interests, if not the rights, of kids. I think the law has to at least try to accept the reality of their lives and help them make the best of it.

      And finally–as to the rights of the other adult here–the biologically related parent. If she didn’t want her partner to be a parent she shouldn’t have let her play the role. I know everyone worries about the nanny who steps in and claims parentage and we should be on the watch for those sorts of cases. They are pretty rare–and mostly easy to spot. This is’t one of those cases.

  2. I would say the 10 year relationship should count for something.

    Or if there was a legal adoption, which there was not.

    All other details, such as who planned or acquiesed to the birth, don’t seem relevant to me.

    I would say the same thing regarding the law about the male step parent.

  3. Very interesting and very concerning. Thank you for bringing attention to this Julie. I linked to your post at http://familyscholars.org/2010/05/28/redefining-natural-parent/

    I also wanted to note another article about a similar case (involving a lesbian couple) in Iowa “IDPH intends to fight birth certificate court battle” (http://iowaindependent.com/34038/idph-intends-to-fight-birth-certificate-court-battle):

    The IDPH stated:
    “It is a biological impossibility for a woman to be a biological father of a child, yet Plaintiffs contend that in all cases of children born to lesbian couples the non-birthing spouse should be entered on the birth certificate as the father with no notice provided to the biological father. While these Plaintiffs may have conceived using an anonymous sperm donor, clearly not all lesbian couples conceive in that manner, and the legal rights and duties of these biological fathers and their children remain in limbo unless an adoption has occurred.” […]

    The state also acknowledges that there may be instances in which the presumption of paternity may result in the wrong male being listed on the birth certificate — such as in cases of artificial insemination or marital infidelity. Those instances, the state argues, can and do occur, but in the case of same-sex couples applying such a presumption of legitimacy to the child “would in every case result in naming a parent on a birth certificate who has no biological connection to the child.”

  4. Juie, you say that “This means that ”adoptive parent” and “natural parent” are both legal constructs. Neither is created by nature.”

    Well, if that is the case I think it will kickstart a trend in society to start talking about being ‘genetic parents’ so that people can assert the fact that they are genuinely the parent of the child and not just a ‘parent’ according to some sort of legal construct, ie, a legally acknowledged childminder. There is a huge gulf of difference between being a genetic parent and some other random sort of ‘legal parent’ . A genetic parent is fundamentally tied to the child. In my view the anonymous sperm donor is a thousand times more the real parent of the three children than Harmon ever could be and all the legal pronouncements in the world could not make me change my view. The fact that Harmon cut the umbilical cord does not make her a parent anymore than it makes a midwife a parent, and the fact that she might have physically taken care of them does not make her a parent, it only makes her a fool for investing at her own expense in someone else’s kids. Genetics makes a real parent, nothing more or less. Of course, parental rights need to be given to adopters since they are permanently caregiving children, but does it genuinely make them parents. I used to think adoption made a parent-child relationship but I’ve started to retract from that. I’m beginning to realize that the genetic bond is really all that counts in the end – it is the only enduring bond.

    • First, let me say that I thought the conclusion–that “natural parent” was as much a legal construct as “adoptive parent” was somewhat surprising myself. But I don’t see any other way to understand what the Michigan court was saying. I’m not sure that the usage employed by the court in this case is particularly common and it may not even turn out to be the law in Michigan, though from the discussion in this case it does appear to be so already.

      It gives me a lot to think about. Under this reading, there’s still a difference between a natural parent and an adoptive parent, but it isn’t the difference I had been thinking about.

      It’s also worth saying that both natural parents and adoptive parents are legal parents. That is, they are recognized in law as being parents–they are given all the rights and responsiblities associate with legal parenthood.

      As you suggest, genetic parent (as you use it) is something else again. That is a person who provided gametes for the creation of the child. Of course a natural parent may be a genetic parent and a genetic parent may be a natural parent. But there are also instances where a natural parent is not a genetic parent and vice versa. What makes you the most unhappy, I think, is the idea that a genetic parent might not be a natural parent and hence, might not be a legal parent?

      That said, I cannot disagree with you more about the nature of enduring bonds. It’s true that genetic ties are forever–we never do change our genes (at least, not yet). But to my mind that bond, however enduring, may have no content. Sure, many genetic parents love their kids. But many genetic parents don’t care about their kids. So there’s a bond, but it has nothing much attached to it.

      By contrast, I do place a lot of stock in the parent/child relationship–the social relationship. The unconditional love of parent for child. I think those can be extraordinarily enduring bonds and that protecting and nurturing these bonds means much more in terms of the well-being of children.

  5. Why is a genetic bond the only enduring bond. Take an instant where a non-biological adult adopts a child and then abandons the kid whilst s/he is still an infant. In later life the grown child would not feel a compelling imperative to search out the absconding adopter to gain a sense of identity, yet children conceived via sperm donation do very frequently feel a compelling need to search out their genetic father precisely because of their sense off self-identity. This shows that no matter the assumption of a parenting role, it is genetics that really count in the end.

  6. Only a tangent I know, but what are your thoughts on any differences between adoption and surrogacy using two gamete donors (egg and sperm)? Are there any differences; should there be any differences?

    • That’s a big question, but for a quick response, I’d say there are differences. In adoption the child is created before particular intending parents are known. In surrogacy/purchased gametes, the order is the other way around–no one does surrogacy on spec. So there’s at least one difference. Now the harder question (which I’m not even going to try to answer here) is what should follow from that difference. Does it warrant different treatment? And there could be other differences as well. It’s worth thinking about.

  7. If neither genetic parent is known, I would name the surrogate as the parent and would require the commissioners to complete a formal adoption.

    I would not necessarily give them priority as adoptive parents either, although their relationship with the surrogate, who would have the full authority over whether or not to relinquish the child, and to whom, would give them the edge.

  8. I agree with you Kisarita. If a couple/single sponsor the conception of a baby using donor gametes and a surrogate it would be immoral to let them just adopt or bring up the resulting baby. It offends common decency that such blatant commercialization of children should be allowed. If I were a judge I would put such a person/couple to the very back of the line for reducing a human to no more than a made to order suit. In my view it is unlikely that such a person could ever be a fit parent. I find the very notion of such a made to order baby offensive in the extreme.

    • I’m not sure I understand precisely where you see a problem. Suppose a married couple want to have a child and they deliberately time sexual intercourse in order to conceive. Is that child made to order? If the husband has no sperm and so they purchase gametes in order to create a child, is that child made to order? Is it more of a problem if they shop for the sperm, picking someone who might resemble the husband? If they said to the sperm bank that they wanted a randomly selected donor, would that be better?

  9. It’s the notion of deliberately creating genetic orphans merely to satisfy some adults indulgence that really angers me.

    • I think I understand (though I do not agree with) this sentiment. I suppose to some it would matter if the providers of the genetic material were known to the child, which would make ART more like an open adoption?

      And suppose a person does not feel concern with the genetic orphan problem for whatever reason. Can you then distinguish between the child of ART and the adopted child? Remember, if you look back on the blog, I’m the one who was prepared to equate the sperm provider and the guy in the one-night-stand.

      • Julie, do you think the commissioners have any greater connection to the child than any other prospective adoptive parent, simply because they completed a financial transaction before the child was even conceived?

        • That’s a good question. I don’t think the commissioners (by which I take it you mean the people who commissioned the proceedings, right?) have a greater connection to the child in any sense that I can articulate. And that is a bit of a problem for me.

          The real trouble arises with surrogacy. If a woman buys sperm and then uses it to inseminate and becomes pregnant and gives birth, then I’d say she has a substantial connection to the child and it all works out for me. But if people are buying materials and then using a surrogate I find it much more difficult. (Actually, I have the same probelm if they’re using their own materials, since I am not so attached to the genetic basis of parenthood.) As between the woman who is pregnant and gives birth and the people who are commissioning things, I tend to view the woman who gives birth as having a stronger claim.

          I don’t think I can follow this thread much further here, but it’s quite right to identify this as a place where I run into some trouble.

  10. We can’t do anything to stop babies being procreated accidentally and requiring adoptive families, but as a society we really should be preventing the deliberate manufacture of children to be raised by no genetically related person. CHILDREN ARE NOT TOYS!!!!

    • I can at least agree that children are not toys. Beyond that, for a variety of reasons, there will always be children who are being raised by people who are not genetically related to them. Adopting a stance that their families will always be second-rate will only cause harm–or perhaps (in your view) compound the harm already being done to them. I don’t agree that parenting capacity is tied to genetic relationship and would rather consider strategies for supporting people willing to undertake parenting in a range of situations, including adoptive parents and parents via ART.

  11. As a social worker, I have worked with many women who have had children out of wedlock, then marry someone other than the father of their first child and then proceed to have additional children with their husband. I have dealt with cases where the mother dies (usually accidentally) leaving the step-father with a very tenuous legal situation, especially when the bio-dad comes out the woodwork wanting to assert his parental rights. All of which could have been prevented had their been a step-parent adoption or at least a guardianship or will. I continue to be amazed at how little thought is given to the welfare of the child by parents if something should happen to them. In the cases I have dealt with, the Courts have given preference to bio-parents and their relatives over those with no legal standing even though they may have a significant relationship with the child. I do think that stance has “softened” but certainly not faded entirely.

    • These are exactly the sorts of cases that push judge’s to make very difficult decisions–weighing fidelity to abstract legal princples on the one hand against the well-being of a specific child or children on the other. Adherence to the letter of the law (no adoption = not a parent and no rights) means harm to the child. But recognition of the interests of the child means injecting some degree of flexibility/uncertainty into the law. If you look state to state you will find all sorts of difference ways that this balance gets struck and of course, each of us can decide for ourselves what balance we prefer.

      There’s another point you make I want to emphasize. There are many reasons that people do not complete adoptions in circumstances like this. Sometimes it might be that the mother does not want the step-father to adopt. But frequently it has nothing to do with that. It might be the amount of money it takes or failure to recognize the legal importance of adoption or access to legal services or a combination of these. Perhaps the law should distinguish between cases where the failure to adopt is the result of a conscious and considdered choice made by the people involved and those where the failure to adopt is happenstance. That would be a plausible line to draw, but we should recognize that you’d end up with fights about which category particular cases fell into.

  12. Thank you Julie for your response. I agree with you that there could be many reasons for a mother not following through on a step-parent adoption You mention several important ones and I would just add to the list the age and wishes of the child(ren) as well as the step-parent. Of course if the mother is receiving child support that could play into the picture as well as the bond the child might have with extended family on the father’s side. Yet when the bio-father has not assumed any parental responsibility, it makes sense to do a step-parent adoption as it provides permanence and stability for the child, at least from my viewpoint. I usually make a point of inquiring about step-parent adoption or guardianship in those situations.

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