The Hardest Question

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?


12 responses to “The Hardest Question

  1. What happens when the functional test is ambiguous? I’m thinking here of the non-pregnant parent who fits the “traditional” father role but may not meet the more nurturing requirements of the de facto parent test. This would be more of an issue if the two individuals split up some years after the birth. In that case, would intention help tip the balance in favor of the non-pregnant parent?

  2. KateSchosboek

    The problem with “intent” is that it would be much too messy for the courts to apply. Can you imagine the arguments in court over who intended to become a parent? For how long do they have to intend exactly; a day? a few months? Intent is difficult to qualify. Just as paternity can be established now for men who agree to let their wives go through assisted reproduction, the same should be true for registered same sex couples (or perhaps it should be said, rather to establish “maternity”). This may not protect ex-girlfriends as much as ex-boyfriends who can use genetic testing, I am ok with that. I believe the bond, at least in utero between the non-carrying parent and the fetus is, well, just different when your DNA is not involved.
    Now dealing with the surrogacy issue is a whole different battle and that is where I throw up my hands.

    • Intent can be very difficult, as you say. Sometimes we solve that by saying that intent must be shown in writing or something like that. But you also raise a second issue with intent–timing. Is there some critical moment at which shared intent counts? And is it rebutted or undermined by other moments when the intent isn’t there?

      Perhaps because this is a mess it’s often dealt with by having people sign forms when they go for ART. The signed form evidences intent at that particular moment and that’s the end of it. So what you do is you pick this one moment in time and it becomes the single most important moment. It’s this feature of intent–that it privleges one moment in time over all the rest–that bothers me most, I think.

      It’s worth noting that the idea of intent being critical is essential in contract law. If there is a meeting of the minds–shared intent–there is a contract. The fact that you later change your mind is irrelevant–you are bound by that momentary meeting. Again, as you suggest, it can be messy to prove there was that momentary meeting, and that’s one reason why written contracts are often used.

      All this said, I think intent might actually get you where you want to go–when a couple (male/female or female/female) goes to use ART they can (or do) sign forms stating they both intend to parent. In some places the law gives force to this–you are a parent because you intended to be.

      It turns out to be a lot tidier than fighting over who acted like a parent, I’m afraid. That’s a signal weakness of the de facto analysis.

  3. I’m reminded of a people I know.

    Husband says he does NOT want to be a parent. Wife stops using birth control, thinking he’ll change his mind. She becomes pregnant and he moves out. The state says that he is the father. He pays child support — and also give the child birthday presents, visits from time to time, and stays in touch. The child even lives with the father for a while as a teen.

    The couple’s relationship was definitely a mess. The wife should have tried some other means of persuasion than presenting the husband with a pregnancy.

    But it’s not the child’s fault that the parents’ relationship was a mess. It’s probably a good thing that the state said the father was the father — not just because of the child support payments but because of the additional caring adult in the child’s life.

    Of course, not all husbands / ex-husbands in this situation would step up and be positive influences.

    In your hypo, it’s possible that the relationship broke up before the birth because the parting partner was an abusive jerk and the pregnant partner realized that he/she should never be allowed near a child. On the other hand, it’s possible the pregnant partner is an emotional mess and having the parting partner in the child’s life would be the child’s only glimpse of sanity and stability.

    So in the abstract, we could say that it’s best for the child to have no contact with the parting partner — or it’s best for the child to see a lot of that person.

    How is a judge equipped to make that call?

    • That’s a hard story and I don’t know how much the law can do to make it better. Does the wife want him in or out? I suppose under a function test if she wants him in, she can make room for him. Then he has some choice–does he want to be in or out. Maybe out of some moral or ethical sense he wants in, even though he’s been mislead up to this point. If so, then I think he could avail himself of the space and take on the role. (I won’t say anything about the support for now.) But if she doesn’t want him in or if he doesn’t think he can or want to do it, then he isn’t in.

      Under an intention analysis, I guess he wouldn’t be a parent–no intention. Under DNA he’d be a father for sure. And under current law he’s a father because they are married.

      What’s the right way to think about it? I wonder if he did what he did (in fact) because of the law or because of his own sense of what was right?

      • Marilynn Huff

        ” I wonder if he did what he did (in fact) because of the law or because of his own sense of what was right?”

        The beauty of the law binding men to their offspring as fathers based on a positive paternity test is that sometimes one follows the other; the law often compels men to behave as we expect parents to behave and then by virtue of that behavior they attain that defacto-functional zen-parent moment where they think its the right thing to do.

  4. I love how it’s assumed that a guy who took on a parenting role with his girlfriend’s children is going to want to continue to be a parent of her kids after they break up.

    And the hilarity of saying men would get the “benefit of the test” to be “allowed” to continue to parent and spend his money and his time, when to millions of men, “the test” refers to a court-ordered paternity test and if they fail it, they are forced to pay child support. Men often fight child support by demanding equal parenting time, hoping that the the mom will choose to forgo the child support demands in exchange for getting sole custody and keeping the estranged father out of her life.

    • marilynn huff

      John – you and I agree on relatedness being important. Many men want to be involved in the lives of their children and so do their families like the aunts and uncles, grandparents etc. Maybe I am around men that like being fathers more than average. Half of all marriages end in divorce, but I do see lots of dads remaining involved with their children, either from their own accord or due to pressure from their families.

      • Right, but the fact is that many men choose to sign away the right to be involved with their biological children, which makes it very unlikely to me that any men are going to want to remain involved with an ex’s children by another father.

        Maybe they’ll come around once or twice during the first year of the split to say hello, but after that I’m sure that 99% of men have no interest in parenting some other couple’s kids, even if they enjoyed the parenting role while they were in it.

        • Marilynn Huff

          Oh yes, then I agree, wholeheartedly. Like step-parents rarely want to remain involved after a split its just too sticky even if they really loved the kid, its just real uncomfortable and it usually dies out after a year or so. Your right.

    • I think many men who are fathers love their children. The thought of losing contact with their kids simply because they are not getting along with the other parent must fill them with sadness, grief and fear. Those men (and their children) deserve to have their relationships protected.

      I don’t mean to deny that some men act strategically as you describe, demanding custody as a way to extort money from soon-to-be exes. But I’d surely like to believe they are not in the majority.

  5. I think that lesbians are not analogous to heterosexual boyfriends. Perhaps lesbians are more likely to want to parent their partner’s kids. Maybe because the cultural ideal that a woman is incomplete without being a mother. (Actually I think that’s true of both sexes, but society really applies it much more to women.) Or maybe because the guy assumes he can always have his own kids if he decides to, but a lesbian knows she can’t.

    But whatever the reason, the law is designed with the expectation that the men will run if not caught and therefore we must hold them in by any which way, marital presumption, DNA testing or anything else. It seems that it wasn’t designed with lesbians in mind. Not that this tells what the law should be, but it does show some of the problems of applying it accross the board.

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