I’ve been carrying on this blog for quite some time now, mainly considering cases as they come along. Because I’m travelling and all that just now, it’s much harder to keep up with current events. So I’m taking this time to try and gather together more general thoughts and play out my arguments more broadly. The last three posts fall into this category and this one does, too. (This is not to say that I won’t cover current events, as I do have some piled up in my browser.)
I think–I hope–I’ve been fairly consistent in articulating my preference for determining legal parentage via a de facto parent test or a functional parent test. (You can find many posts on this topics via the tag cloud.) What this means is that the people who function as the child’s parent for a significant period of time get recognition. Many of the cases that have developed this test concern lesbian couples, but there’s no reason why this needs to be a special test for lesbians or for women. If a man enters a child’s life and plays the role of a parent for a good chunk of time, he’d get the benefit of my test, too.
Now with the advent of ART another test has developed–a test of intention. So when people use ART to create a child, you can say that the parents of the child are those who intended to be the parents. This has been particularly useful in surrogacy, as it allows a court to name the intended mother rather then than the woman who gave birth as legal parent. (Again, you can see more about this with the tag cloud.)
Often the intended parent doctrine and the de facto parent doctrine compliment each other nicely. So for example, a couple intends to have a child together. They use ART–let’s say purchased gametes. One member of the couple gives birth (obviously this person must be a woman.) The other is not genetically related.
The couple raise the child together for a while but then eventually split up. The woman who gave birth is generally recognized as a parent automatically. The question is whether the other person is a parent. (This is the classic set-up for the intra-lesbian custody cases, but it could equally well occur with the heterosexual couple.)
The second person here can use both the intended parent idea and the functional approach to argue in favor of parental status. It was the intention of the couple that this person should be a parent and the person played the role of a parent. So far no problem for me.
But what about where the two tests point in opposite directions? Suppose the couple goes to the ART provider and at that point, it is their shared intention to create a child they will raise together. But then suppose very soon after, things go awry. Intent notwithstanding, the pregnant woman goes through the pregnancy alone. Shortly after birth, the second person files suit contending she/he is a parent, too.
Here intention would argue in favor of parental status while a functional analysis would argue against it. Given my initial commitment to the functional approach, it seems to me that at least initially I ought to stick with that approach and say the second person is not a parent.
What makes me uneasy is this: Put rather starkly (and unrealistically, since life is usually complicated) there are two ways circumstances could have broken down. Either the pregnant woman changed her mind and excluded the non-pregnant partner or the non-pregnant partner changed her/his mind and walked out.
There are several comments on the last post (I think it is) about the unfairness of allowing the pregnant woman to exclude the non-pregnant partner who wants to be included. This unfairness is especially sharp where there was an initial agreement that the parties would be co-parents. It’s also problematic (but in a different way) where a person says they’ll co-parent and then changes her/his mind and simply walks off, leaving the pregnant person high and dry.
At the same time, I am not sure I see a better way out. If by the time the child is born the two people are already in substantial disagreement of how to proceed, making them both parents hardly seems a recipe for a healthy childhood.
I’m going to leave it there for now, but I have a bit further to go down this road–what do we do when performance doesn’t match intention?