It’s funny to see that while earlier posts have continued to garner many comments, only one person has taken up my last post. What can I say–it’s a topic that interests me even if it doesn’t interest the rest of you.
Anyway, you might wish to read that last post before you read this one, as I plan to continue on from where I was. Last time I provided sort of a historical overview of two parentage tests–one based on intention (really developed out of ART) and the other a de facto or functional test. I’m generally support of the de facto approach, but on occasion I’m sure I’ve argued (up to a point) for intention. The thing is, there are clearly places where these two tests conflict. That’s my worst case scenario.
This time I want to begin with the worst case scenario and then go forward from there. So here you are:
A and B agree to have a child together. They intend to parent the child together. For whatever reason, A and B are using ART. A becomes pregnant. Then A and B quarrel. One of two things happens–either (1) A decides that she (since A got pregnant, A must be female) does not want to parent with B or (2) B decides that she/he (B could be either male or female) does not want to parent with A. Now in either scenario, if the other partner (the one I didn’t name–B in the first instance, A in the second) agrees, there isn’t really a problem. Trouble comes when the other partner wants a different result.
So in 1, that means A doesn’t want to parent with B, but B does want to parent with A, or at least wants to parent the child A gives birth to. If you use a test based on intention, then I think you go back to the moment they went to use ART. Since they both intended to be parents, they both have parental status. That essentially means that B wins here. A and B will both be parents and we’ll have to figure out some way to work that out–probably something that will look like a classic split custody arrangement.
If instead you use a functional/de facto sort of test then A is a parent and B is not. Thus, A gets what she wants and B loses.
Which of these outcomes should I opt for? In either case there is a winner and a loser–someone is going to be unhappy/disappointed. Is there any good way to choose winners and losers?
I realize that it’s quite possible that B will be very attached to the idea of becoming a parent here, but (particularly if it is early in the pregnancy) I don’t think B really can have bonded with the soon-to-be-child, nor can the soon-to-be-child have bonded with B. Thus, rejecting B’s claim won’t disrupt existing relationships between the child and those who care for her/him.
Of course, ruling in favor of B won’t disrupt relationships either, and that’s worth noting. But ruling for B will likely ensure that the child begins life as part of two different (and perhaps antagonistic) households. That’s less than ideal.
It seems to me that overall, from a consequentialist point of view, a ruling for A is better. It’s not that A is morally right and B morally wrong–I haven’t provided any facts that would say that. But someone has to lose here and, it seems to me that I’d rather B lose than A.
That also means that the de facto/functional approach would trump the intention approach here. That suits my inclination as well, I think.
It’s worth running through the same analysis with 2) above (where B changes his/her mind). I’ll save that for next time.