The Hardest Question, The Worst Case

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.


19 responses to “The Hardest Question, The Worst Case

  1. Sounds logical.

  2. KateSchosboek

    I like defacto as a fall back measure but I think that same sex couples deserve the protection as married ones. Deciding to go with a spouse (be it same sex or otherwise) to get assisted reproduction using anther’s genetic contribution should impose a presumption of parenthood.

  3. Marilynn Huff

    If the male(B) of the couple fertilized the egg of the female(A) of the couple then the child is his as well as hers the same as if they had conceived through coitus and a simple paternity test will demonstrate that the child is his as well as hers and A should not be able to block B just because she no longer wishes to raise her child with him.

    What a cruel trick that would be. In fact it would be kidnapping.

  4. KateSchosboek

    Well, not exactly. It wouldn’t be kidnapping because the rights involved are really just contract rights to a fetus, not a living child. You can contract to give up those rights (think sperm or egg donation where genetics and parenthood are separate).

    On the flip side, imagine that the “father” goes with his wife to have IVF, she gets pregnant and it isn’t genetically his. But many states have a presumption of paternity in these circumstances which means that he is, for all legal purposes, the father. Again it is based on contract.

    You can argue that there are some things that contracts just shouldn’t apply to- but that is a different story.

    • marilynn huff

      I meant when the child was born if the woman attempted to prevent the male from being involved in his child’s life say she ran off and married another guy and tried to put his name on the birth certificate. I think that would be like kidnapping.

    • we discussed this once… the married man (at least in many states) has to consent to the insemination in order to be considered the father. so it isn’t just the presumption. conceptually it seems more like a second parent adoption, although it takes place automatically.

      • I think it’s more like an extension of the idea of parentage by consent. It isn’t like a second parent adoption, which has to wait until after the child is born and must be confirmed by a court and results in a court order.

  5. In today’s world presumption of paternity is poppycock. I view that as a relic of the past. Presumption can always be challenged by DNA testing. That is why non bio-males wishing to have paternal rights probably need to do a step-parent adoption or something similar in which the Court recognizes him and confers those rights. Otherwise you can always have the bio-father in the background trying to assert his rights.

    • I would guess that the majority of men who are legal fathers in the US have that status by virture of presumptions (particularly the one tied to marriage) rather than DNA.

      • Marilynn Huff

        I agree but you know that gap is closing in quickly especially for unmarried men. A man should be sure before taking on 18 years of responsibility and quite possibly attachment. There is no way to really un-do the financial damage or emotional bond if someone comes along and challenges the man’s relationship with positive DNA evidence to the contrary down the line.

        • Ah–but what is it a man should be sure of? I think he should be sure that he wants to assume this responsibility. For some men this might mean they need to be sure of the genetics, but not for all.

          That said, I can see it must be shattering for a person who has made an assumption about the genetics to suddenly discover that the assumption is wrong. It generally (perhaps always?) means some serious deceit was involved. The thing about ART, though, is that you know the genetics isn’t there from the get-go, so it is really about the willingness to make the commitment.

  6. marilynn huff

    It gets really interesting if say The male of the couple is fertile and the female of the couple is not fertile. If he paid an anonymous woman to conceive a child with him through IVF at the fertilitiy clinic and say the course resulted in several frozen embryos I do not think that the female of the couple would have any right to have any of those embryos implanted in her or in a surogate for herself to raise if her relationship with the male got called off. Those should be his embryos to do with as he pleases since the anonymous female wants nothing to do with them. If the embryo was already implanted in her the law would allow her to be the mother because she gave birth (I still think she ought to have to adopt from the anonymous woman who they paid to conceive the child with the man so that there is a record that it is not really A’s baby). But the male B should have parental rights if not full parental rights at least 50/50.

    • while they are embryos, contract law still governs them. once they are born, it depends on how you view the status of the birthing woman.

      I know someone who made embryos with her husband, but they made a contract giving her exclusive rights over them. So that in case of death or other unpredictable circumstances, she wants them destryoed and he can have them implanted in someone else.

  7. marilynn huff

    If the female was the fertile one and she paid an anonymous male to conceive a child with her at the clinic then I would say the child is entirely hers except for the fact that when its born it won’t have a second source of financial support because the father is anonymous. The screwed up thing about naming the male as father in that senario is that he may end up paying support for a child that is not his for 18 years but at least he would get to be involved in the childs life. I do not think that the woman should be able to seperate from the male and just arbitrarily name some new partner as the father – I don’t even think the male should be named as the father in that senario, but I know the law allows it. The father on the certificate ought to say the donor id number and the clinic name.

  8. Marilynn Huff

    What if we split the difference between your agenda and my agenda to come up with a legal solution for the assignment of parenthood that achieves both goals in a way that does not take away anyone’s rights?

    Let’s say the law was changed so that the woman who gives birth is the only legal parent of the child she gave birth to – but she has 60 days after the birth of the child to provide the state with paternity test results for the person she wants to name as the child’s “second parent”. If the paternity results are positive that man would be automatically become the child’s second parent because the child is his offspring. If the paternity test results are negative or if the person she wants to name is female then the person being proposed as the child’s second parent would have to sign that they willingly accept the obligations and responsibilities of being named as the child’s second parent. They would also have to acknowledge the child’s paternal progenitor has a right to be involved in his child’s life and reasonable accommodations for visitation would have to be made through the courts should the father ever surface and provide proof of paternity and that the biological father may have a right to shared custody should he choose to pursue it. That would protect the truly duped good-guy boyfriends of the world who were left high and dry by pregnant girlfriends running off with guys that were wealthier or whatever and it would not threaten lesbian couples using a sperm donor at all. The mother’s lesbian partner would be the child’s ORIGINAL second parent, if the mother wanted to give the baby up for adoption, BOTH of them would have to agree.

    I am not talking about second parent adoption here – I’m talking about delaying the naming of the original second parent long enough to provide the state with proof of paternity or proof that the biologically unrelated person being named as the second parent understands that they are accepting parental responsibility for a biologically unrelated child. I’m talking about eliminating the antiquated assumption of paternity by the woman’s husband; it would prevent women from lying to their husbands if the child is not related to them. It would ensure that any man named father on the birth certificate had proven paternity before the certificate was issued. Anyone not related to the child would be on the certificate as the second parent. (I ask that you give me that one because I like the clarity of it and that way the kid knows right away if the person is related or not) I’d like to see maternity testing go along in the 60 day waiting period but I’d forgo that for now.

    I think that arrangement handles paternity fraud nicely by ensuring that people acknowledge when they are accepting responsibility for an unrelated child and would automatically assign parental responsibilities to a second parent only with proof of paternity or would assign parental responsibilities to an unrelated second parent only if that person signs in acknowledgement – this prevents discrimination of unmarried heterosexual couples as well because you can be married one day and divorced the next, its ridiculous to say that the unrelated person must be married to the mother when they accept that responsibility.

    I like my idea because it’s fair to men and it’s fair to women. What do you think?

  9. marilynn huff

    whoops I meant to say they would not be on the certificate as father but they would be on the certificate as the second parent – details details, the jist is the jist.

  10. marilynn huff

    My sacrificial lambs in that senario are hetero married couples that want to pretend to be genetically related to the child they are raising. Lesbian couples that want to raise a child together dont want to lie to anybody. They just want the right to raise their child together.

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