Genetic Parents? One Step at a Time

Looking back at recent posts on a variety of topics, it’s apparent to me that there is at least one question that gets raised repeatedly in many contexts:  What is (or should be) the significance of a genetic relationship between adult and child?    You can see this question emerging in the recent discussions here about gamete providers, the marital presumptionthe rights of natural parents and Iowa birth certificates

I think I’ve been fairly clear about my own view–which is that while the person with the genetic connection may be an important person, she or he should not be considered a parent simply because of the genetic connection.   A number of commenters have been equally clear that they disagree with me on this.    They espouse what I will call for now the genetics-makes-a-parent point of view.   (I do not mean to give this viewpoint an objectionable label and if what I have chosen is objectionable, I will change it.  I just needed some sort of short-hand way to refer to it.) 

As I think about the genetics-makes-a-parent point of view, I have a series of questions.    The first, and perhaps most important question is what the virtue(s) of this perspective are.   The best arguments I can think of would be that it serves the rights/interests of children and/or that it serves the rights/interests of adults.   I’d like to consider these possibilities separately.   

I can see several ways you might say a genetics-makes-a-parent view serves the interests of children.   First, you could say that genetically related adults are always going to be the best parents for any given child.   You could advance this view from a evolutionary biology perspective–that we are pre-programmed, as it were, to care more for our genetic related offspring than for other young.    (I realize there’s a whole bunch one could say about this, but I’m just going to ignore that for now.  I think I’ll probably come back and unpack this statement another time.) 

Whatever the strengths of the theory there, it doesn’t seem to play out in practice.   It’s clearly not true that all genetically related parents are pre-programmed to take good care of their offspring.  There are too many instances of child abuse and neglect at the hands of genetically related parents.    Further, the converse–that genetically unrelated parents will take less good care of their children–is also untrue.   There are large numbers of adoptive parents and parents of kids conceived with third-party gametes who appear to do an excellent job.   So it seems to me that sometimes kids who are clearly better off being raised by genetically unrelated parents than they would be being raised by genetically related parents.   It doesn’t seem to me that a blanket presumption that people who are genetically related are the parents of the child can be justified on grounds that it serves the interests of children. 

I would go further and say that a presumption in favor of genetically related parents would sometimes harm a child.  If the genetically related people have not played a role in the child’s life and the child has formed substantial psychological attachments to people she/he is not genetically related to, then recognizing the genetically related people as parents and severing connections with the genetically unrelated people will very likely harm the child.  

Perhaps the genetics-makes-a-parent view can be justified by reference to the rights/interest of the adults.  I do think adults involved in child-rearing have rights that we should care about.  On occasion I’ve been accused of putting too much emphasis on the rights of adults and too little on the rights of children.  

I can sort of see a right–akin to a property right?–that a person with a genetic connection is entitled to be a parent of a child.   And you do see this view reflected in law on occasion–I think this is  part of why the one-night-stand guy is considered a father.    This may be where I need to do some more thinking.  

It’s possible that I haven’t been fair here, and so I am willing to be corrected.  Perhaps the point is that people shouldn’t be permitted to raise children they are not genetically related to.   Or perhaps it is that they should be permitted to raise them but should not be recognized as parents (in law) of those children.

The first suggestion (no raising kids unless you are genetically related to them) could be a statement of an ideal, but it is clearly an unattainable one.   I think there have always been people raising kids they are not genetically related to and there always will be.    I don’t see that we have any interest in discouraging this behavior generally.     

The latter suggestion–you can raise the kids, but you cannot be a legal parent–seems wholly unworkable to me. 

I should acknowledge that I have been considering the proposition quite abstractly, across a range of contexts.    One could instead offer a narrower argument–like that gametes shouldn’t be bought and sold–that would be more context-specific.   And that would be a different conversation.    

As I think about the

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35 responses to “Genetic Parents? One Step at a Time

  1. Correct me if i am wrong, but i was adopted by my step father when i was 5, that is what made him my legal parent and guardian. Otherwise in all sense he is my step dad, which is a man my mom married and is living with but is not legally in any way responsible for me outside of that marriage. I am EM’s step father now by law since i married his mother. but this ruling gives him more legal rights than i legally have, or the natural father for that fact, since their visitation schedules conflict. If the the third party wants that kinda of role they should be required to legally adopt the child and meet all criteria there of, My step father had to. for example My wife legally as my daughters step mother cant handle her medical care etc without my written permission. For adoption as far as i know in ND requires both parents permission or to be proven unfit,or not have contact with the child for at least one year. none of those criteria were met, instead a new unconvential and hotly debated path was taken and here we are now, but how did we get there is my question. This does raise the question that the Justice Maring of the Supreme court brought up ” was why EM was never adopted by Mark when they were married?” I think the part that is being missed, is what part the genetic role plays between parent and child. The parents rights should always trump a third parties right to interfer with the relationship with the child unless it can be proven that the parents is unfit to care, provide, and nurture the child. What i am basically saying is, is this, Mark never adopted him or showed he wanted to until they were getting divorced. Mark fought for custody and rights under the pretense of Robin being unfit. which the original judge in the case, said he could only get if he found Robin unfit. Yet the court found Robin completely fit, even though the Custody investigator was personally hand picked by Mark. Robin stated in court the marriage had never really worked and that she was upset that MArk was never home enough with her and the kids, and that when he was home he only slept. All of this was coroborated by witnesses and even Mark’s very own testimony. So i think the mother of course had good sound just reason to believe he didnt or should not get those rights. This is why laws like this are dangerous. By laws in the US you are a parent to a child and responsible there of without your consent because of Genetic relation. So as long as you are fit and required to be responsible financially emotionally mentally and criminally responsible for that child, (new laws allow parents to be punished for their childrens crimes, including incarceration.) Than it is vitally important that the parents rights are never interfered with by any outside party without the consent of teh parent, or the parent being proven unfit my several professionals. If you are Genetically related to a child as a “biological Parent factor” in the US can be required to pay child support etc. so in reverse of that ideology the court are creating a paradox in the law with the ruling be a clear example. Especially since Mike “the biological father” has been providing full child support, insurance, has seen the child and wishes to be a part of the childs life. I will live and die for my child cause she is of my blood and a part of me. That is all of the reasoning etc i have on this subject i believe. Some things will never make sense or work if you try to hard to look at them with your Intellect and not use you heart mind and soul, thats where the law often fails, cause you cannot teach ethics and morals, you can only give suggestions.

  2. The Law has an obligation to be morally and ethically responsible to the society they protect and govern.

  3. My point of view is that genetics is a parent by default, but circumstances and/or personal choices can push him/her out of that role.

    The reasoning behind this is biological. Scientifically parents beget children by bequeathing their genes. I can not contradict this fact any more than I would support teaching creationism as science in schools.

    For governments to deny this biological fact would be undue interference, except in circumstances that require them to step in and protect citizens’ welfare.

    • There biological facts that must be acknowledged: For every child, there are two people who have provided the DNA that created the child. Some characteristics that the child will have are dictated by that genetic code. Some characteristics will be shared with one (or both?) of the people who provided the DNA. There are probably other statements that could be added here.

      Then the question is what legal consequences follow from these biological facts. I’m generally inclined to think that the law is constructed by people rather than naturally or divinely ordained so in order to advocate for a particular legal result, I think one needs to order some rationale for that result.

      The idea of genetics offering a default is interesting. I take this to mean that in the absence of other factors, genetics tells you who the parents are. I’m not sure I’m willing to agree, but I need to think about that more. But I do think the law could say that the gentic linkage does not determine legal parentage without denying any biological facts. The law would just not give the biological facts legal meaning.

      .

  4. BTW Julie I commend you for the respect you show positions that are in disagreement with your own. You foster a positive debate culture.

    • Thanks. I find that the interchanges are extremely educational and thought-provoking for me so I do work hard to keep it civil. I probably learn more from exchanging ideas with people I disagree with than I do from exchanging ideas with those I agree with.

  5. Something interesting appeared in court TV today. (Judge Mathias). Alas there was so much noise around I could not pay close attention. However the gist was, an older gentleman in poor health came seeking some sort of arrangement for adoptive son (who was also some sort of kin to him), fearing that he would not make it to his son’s adulthood.
    The judge asked “where are his birth parents”. Upon learning that the birth mother was not a fit candidate, the judge said where’s the birth father? And told the man that the court could help find him. All along, though, he continued to refered to the boy as “your son.”

  6. I like the California approach (Buzzanca, Johnson v. Calvert), which deems the parents who intentionally “bring about the birth of a child that [they] intended to raise as [their] own” are the natural parents, even if they did not contribute the egg and/or sperm.

    The fact that “sperm donor” has become a pejorative term for natural biological fathers who want nothing to do with their children — that speaks volumes about how our society views parenthood in terms of genetics vs. intent. It’s a lot more difficult to be an egg donor or a surrogate, but just like women who give their children up for adoption, they have no intent to parent. And that, right there, is the key.

    • marilynn huff

      “I like the California approach (Buzzanca, Johnson v. Calvert), which deems the parents who intentionally “bring about the birth of a child that [they] intended to raise as [their] own” are the natural parents, even if they did not contribute the egg and/or sperm. ”

      It is this concept of bringing about the birth of a child making a person a parent that I find utterly terrifying. Bringing about the birth of a child to raise as your own means you paid to have a person or people conceive and abandon their offspring into your care. Its frightening that a woman who delivers another woman’s baby would be considered the child’s natural mother by law just because she happens to have the money to pay for the procedure. Its vile actually. Its a lie for certain and what is most disturbing about it is the fact that her name would appear on the original birth certificate as mother, not even the doctor that delivers the baby would know if she did not disclose the information. What a wretched and evil selfish thing to do. History is being rewritten to serve the selfish needs of people who want desperately to pretend that they are the biological parents of the children they are raising. Its so wrong. That’s why I think birth certificates should not be issued until the people claiming to be the parents have been found to be related to the child by a positive dna test.

  7. I tend to agree that we have “rights” and “responsibility” for our genes, especially to the children produced with them. This isn’t the same as being an organ donor. An actual child is intended to be created using sperm/egg donation. It should also be a right of the child to know who they come from – not that every child will avail themselves of knowing, but that should be their option. I also agree with you Julie that just because a person can produce children, doesn’t necessarily make them good parenting material…..yet until their parental rights are terminated, they have legal obligations toward their child. The whole sperm/eggs for sale industry would probably not exist today if every donor had to have their parental rights terminated by a court rather than merely signing a waiver which in essence means they are voluntarily giving up any parental rights they may have to the children produced with their genes.
    As a society, I think we have taken a very capitalistic approach to having children. It reminds me of the Burger King commercials – “Have it your way”. For some reason this also has shades of eugenics in that we can build the child we want by just taking the best of the best for making a child (just by buying the right sperm/egg).
    Your blog stimulates a lot of thought Julie. I think we (myself included) are still grappling with these issues.

  8. My core belief is that adoption should be required to obtain any rights to a child if you do not have a genetic bond with that child. Only adoptions should be allowed when either the genetic parents legally consent to the adoption, or allowed by the courts, but only when special circumstances exist, such as the genetic parents have been found unfit by professionals to raise the child or unavailable to raise the child due to illness or death etc. and have no living will to designate who should get the parental rights to the child.
    That is honestly how i thought and was always told the laws were written.
    I have reservations that laws like these are opening the chance for good loving parents being forced to give up their rights to their children to 3rd parties, whether they individuals, schools, corporations, or government entities etc, Since it could be ruled by a court that under a “best interest analysis”, they are better equiped to raise the child due to the amount of privileges and opportunities they can provide the child… wouldn’t chances like that be in the “best interest” of nearly every baby born? shouldnt every baby have the right to a life of privilege and opportunity? It may sound far fetched, but we are not even 150 years removed from slavery being accepted in our everyday American society.

    • Surely it is preferable that people go through formal adoption proceedings. That makes cases much easier. But people do not always adopt. There are many reasons why people don’t adopt: Adoption can be a complicated legal procedure. It can be expensive. No everyone has access to a lawyer who will tell them they need to adopt. Some people might worry that they would not be allowed to adopt.

      What this means is that individual judge’s face cases where there is no adoption but where it is clearly better for the child to maintain a bond with the person who didn’t adopt. (I’m not saying these are your facts–just that there are cases where this is true.) Now the judge can say “sorry–no adoption, you are not a parent” and then the law stays nice and simple, but the individual child suffers. Sometimes this is the route the judge takes.

      But sometimes the judge is more concerned about the individual child than the state of the law generally. And so the judge devises some test for when the child’s relationship with a person who has not adopted the child is nevertheless preserved. That protects the interests of the individual child, but changes the law. Senarios like that are one reason that in many places does provide some avenue for recognition of the relationship even in the absence of adoption. You can say that the courts that take this route are wrong, but I think it does mean necessarily sacrificing the interests of the child in some cases.

  9. Julie,

    You say that: “There are large numbers of adoptive parents and parents of kids conceived with third-party gametes who appear to do an excellent job.”

    I want to point out that in this context I find the comparison disingenuous and also immoral to equate the two situations.

    Firstly, adopted children are those who for whatever reason cannot be brought up by their genetic parents or those whom their genetic parents have allowed to become adopted or co-adopted. In that context there is no dispute that the adoptive parents rights trump the natural parents. Not necessarily because the adoptive parents actually make better parents, but because the genetic parent no longer possesses parental rights, or has ceded exclusive administration of those rights to a co-parent. However, I think you subconsciously did express what you know to be the case in adoptive situations, that the adoptive parents are really only ever performing a ‘job’ ie that of caregiver. The adoption certificate can never truly make that child theirs, as genetics does to genetic parents.

    But to equate the situation of adoption where the child already ‘is’ to that of donor gamete children is not a good comparison at all. In that context the moral context makes all the difference. In a donor gamete situation the child never had to come into existence and consequently the very fact that someone has chosen to deliberately create a child to have a poor start in life by growing up without both genetic parents means that the perpetrator to a great extent has already shown a deficit in good parenting. You also can never say with any certainty with a donor gamete offspring that the recipient who brings up the child would be as good a caregiver as the gamete supplier would be since the gamete supplier was never found to be an unfit parent.

    • I was trying to make a specific point, which I will stand by. People who are not genetically related to children can make wonderful parents.

      There are two primary circumstances that have been discussed o this blog where you see people raising children they are not genetically related to–adoption and ART using third-party gametes. There are obviously many ways in which the two situations are dissimilar and those are important to keep in mind. But there are also ways in which they are the same. For my purposes at the moment, they are both instances where people end up raising children they know are not genetically related to them. Thus, I thought it important to list them together here.

  10. Sandy May- “someone has chosen to deliberately create a child to have a poor start in life by growing up without both genetic parents means that the perpetrator to a great extent has already shown a deficit in good parenting.”

    So following this line of thought, do you also believe that homosexuals have a “deficit in good parenting” by the fact that they require a third party to have a child? Must homosexual couples incorporate that third party (and in effect, undermine their own parenting rights) in order to be considered good parents? How about infertile couples? What you’re proposing is not only a huge human rights violation, but bordering on some morally abhorrent ideas. To think that a person gives up the chance at being a good parent in the act of becoming a parent is extremely harsh. What about the right of the child to be loved by the person/people that so desperately wanted them?

  11. Lisa, I believe that gays and lesbians can and do make great even fantastic parents but primarily when they choose to co-parent with each other, rather than by selfishly using a sperm or egg donor. Just because a couple might be gay or lesbian does not give them the right to deprive a child of his her genetic parent(s) via gamete donation. I do not believe that my stance is the least bit homophobic since I also do not feel heterosexual couples have the right to use donor gametes.

  12. Lisa,

    You ask: “What about the right of the child to be loved by the person/people that so desperately wanted them?”

    But such a right does not/would not exist if the child from gamete donation never came into existence, so it is a circular question.

    • A child being wanted does not just apply to gamete donation, though. Many people/couples that adopt very deeply love the theoretical child whom they are adopting even before matching with a birth mother. In that case, the person/people that wants the child is the adoptive parent, while the birth mother is not the person who wants the child (otherwise they wouldn’t be giving the child up for adoption). The birth mother may still love the child, but loves them enough to realize that they can’t take care of the child, and in many cases the child may be very much unwanted (rape, incest, etc.). You can’t say that a person who does not want a child is the default parent without doing a great disservice to the child.

      • Loving a theoretical child is different than loving a child. And that’s true for genetic parents as well.

        • It is also untrue that the birth mother didn’t want the child. That may sometimes be true, but often it is not. The mother may experience extreme grief over the loss of her child.

  13. I struggle with this issue Sandy. On the one hand, I inherently agree that parental rights flow from a genetic connection to the child, yet I also know a genetic connection does not necessarily confer parental capabilities. Yet the presumption is that the “natural” (which I think most people still define as the bio-parents) parents have all the rights, responsibilities and privileges of raising their child until proven otherwise. We require no testing, no license, no study, no educational criteria, no background check, no monitoring or supportive services for bio-parents to raise their children. Yet, we do require that for adoptive and foster parents, kinship placements and the like. Then insert ART…correct me if I am wrong, but if anyone wants to purchase donor (a real oxymoron) sperm or eggs, you also need nothing other than money….no study, no background check, etc. Its an unregulated industry dissimilar to the adoption industry which is well regulated.

    Society, I think, is still struggling with these dichotomies. Courts have no magic wand in their gavels and decreeing that a parent is a “natural” parent with no genetic connection to the child is like calling nighttime daytime. Saying it doesn’t make it so…..as hard as this might be to believe, kids I have dealt with always seem to look for that genetic connection.

  14. marilynn huff

    The law needs to get consistent. The one night stand man is most certainly a father by law, when the mother seeks welfare to raise the child – the state requires men and women to be equally responsible for the financial cost of raising their offspring whether they are married or not, whether they intended to have children or not – the state will make every attempt to locate that one night stand man and will garnish his wages if he does not pay support willingly. Now its only fair to say that if you are to be held financially responsible for your offspring as a parent, that you should have parental rights over your offspring as well. That does not necessarily mean that one night stand man would have any level of custody – but unless he was proven completely unfit he and his family would be granted visitation with his offspring at minimum. He would also have the right to sue for partial custody of his offspring once he was aware of his offspring’s existence and was paying or willing to pay support.
    So what is really critical to understand here is that there is a biological basis for what the State expects in terms of support for minor children – the state expects equal participation from the male and female that conceived the child so as not to unnecessarily burden the state with supporting children raised by single parents.
    When a woman chooses to purchase sperm and raise the child as a single mother, if she ever hits dire straights and applies for welfare, there will be nobody for the state to go after for child support. This is probably the reason why the state did not historically did not care if a married woman conceived a child with purchased sperm because her husband would be the stand-in to take financial responsibility for the child should she ever seek welfare. But now I think its a public heath issue. The problem with people lying is so bad now with ART that the center of disease statistics no longer has accurate records of who is related to whom

  15. It would be interesting to know what the percentage of DC children created by single women receive public assistance as compared to single women who have children by natural means. If anything drives the need for public policy, it usually comes down to money.

    • No doubt it is an interesting question, but I’m a little leery of where it might lead. I bet that very few children born to surrogates end up on public assistance, because surrogacy itself is so expensive. We could see if that were true, but where would it then lead me? Are these all private choices unless/until one seeks public support? I would not advocate that line for a couple of reasons.

  16. I think we should use the term “guardian” for people who are legally responsible for unrelated children. And people who intentionally conceive children with someone they are not married to should be considered unfit and unloving parents right from the get go, and the state should take their children away from them in the hospital room and place them with foster parent legal guardians. Perhaps they should be allowed visitation once a year or so, the child should not be lied to, but the parent should not be able to get away with such bad immoral parenting.

    • I’d use the same term for all people who are legally responsible for children. I don’t see why we need to create classes of caretakers, especially as it seems tremendously likely that the primary people to suffer from differentiating classes will be the kids.

      I have a similar (but much stronger) response to your suggestion about children of unmarried parents. In the last thirty years we’ve moved away from stigmatizing children born outside of marriage. One reason for that is that it is competely unfair to the children, who have nothing to say about the circumstances of their birth.

      I gather you would distinguish between those who intentionally conceive outside of marriage and and those who inadvertantly do so? (I’m not sure this is really what you meant, but you did use the word “intentionally.”) That seems a curious place to draw a line. I guess ultimately I don’t understand why marital status is necessarily tied to fitness to parent.

      • Right, I think we should the same term too, and the term should be “legal guardian”. That could be the genetic parent (and they should have the duty and responsibility and right to be their child’s guardian), or it could be someone else when the parent cannot or will not do it. We can colloquially call unrelated legal guardians parents, because they fulfill the role, but they aren’t really the parents.

  17. Btw, before anyone asks, yes, I am opposed to adoption also, it’s lying. When kids can’t be raised by their current legal guardians, they should be assigned to new legal guardians. No one should lie that they gave birth or fathered someone they didn’t.

    • Oh, I’m sure someone else could chime in here, but while I’m at it–adoption is not lying. Adoption is willingly taking legal responsibility for a child. What you say to the child about how you came to be a parent is important, and I certainly prefer that adoptive parents tell their children the truth, but I recognize that people need to do this in different ways and at different times, as are appropriate to each child.

      • No, that’s guardianship. Guardianship is taking legal responsibility for a child, without lying about who its parents are.

        • I’m reluctant to bicker over terminology, which is where I fear this is headed. If you read through the blog, I generally try to use “parent” as a legal term–and parents are the people with legal responsibility. If you want to call those folks “guardians” instead, that’s okay with me, but it may occasionally lead to miscommunication. I think you are using parent in different way–something akin to genetically related parent? With this said, I’ll stand by what I said–adoption does not necessarily entail lying.

          I encourage you to take the time to read some of the earlier exchanges on the blog. I don’t want this to become repetitious for regular readers.

  18. marilynn huff

    The law should not consider a person to be a be a child’s parent simply because that person has a maternal or paternal genetic connection to the child in question. A parent person raising a child and doing the work of a parent should be recognized by law as the child’s parent regardless of whether they are maternally or paternally related to the child in question. And so you might argue that a child’s progenators should not be legally recognized as its parent’s unless and until they have done the work of a parent and raised the child.
    There are some logistical problems with not automatically assigning parental rights to a child’s progenators; for instance who would get to take a baby home from the hospital if not the progenators? They have to start somewhere. The experience you think they need raising their offspring in order to earn the right to be called a parent, cannot be obtained unless the law grants them parental rights necessary to take their offspring home, raise it and make decisions on its behalf. The State has to assign parental responsibility to somebody automatically when a child is born because clearly nobody will have an established relationship with the child at that point.
    The law is clear that an expectant mother is an expectant mother while she is pregnant. The law does not call you a parent until a child is born. So if the law must assign parenthood automatically to someone in order for the child to leave the hospital, who would be a logical choice. The state has a vested interest in keeping children off of welfare so it seeks to make the two people who conceived the baby responsible taking care of it once its born. That seems fair to me, that the state would obligate the men and women who conceive a child to be financially responsible for it. It also seems fare that if the law is going to obligate people to be financially responsible for their offspring, that people would expect to have some control over their offspring, the kind of control that can only be described as parental control.
    I hope that I have kept my comments out of the realm of sentimental reasons why genetic connections are so important. I hope that I am describing the reason the law needs to default to genetic parenthood for practical reasons. I think its absolutely necessary for the law to assign parenthood to the people with a maternal or paternal genetic connection out of the gate. From there other people can become a childs parents if the genetic parent’s rights are terminated or relinquished. I do think the law should change so that a man who did not know he was a father can’t loose his parental rights to the husband boyfriend or samesex partner of the mother. That is wrong.

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