I’m still working (in an admittedly lackadaisical way) on that current thread that goes back about two posts. Since my on-line presence is sporadic at best, I decided I’d add a post today and respond to comments shortly. If I do it the other way round (comments first) I often don’t seem to get to the post.
It seems to me that as I think about defining parenthood, there are two ways of proceeding. One is to try to articulate some principles I believe in and then see what sorts of results I get when I apply those principles to different situations. I think that’s probably what I do most of the time. So, for example, I like the de facto parent idea. I can use various cases from around the country (or world) or even hypotheticals to test out what kinds of results it produces. And mostly I find the results are (in my view) fine.
The other way to proceed is to see first consider what results you want and then see if you can articulate some sort of principle that will justify those results. There’s something about this methodology that strikes me as less appealing, but I’m not sure what it is.
And of course this latter approach raises yet another question–what’s so important about having a consistent approach anyway? I’ll put that aside for the moment, although I think I’ve discussed it before.
Anyway, I’ve been thinking about who the parents of a child are at the moment the child is born. To the extent I adhere to my de facto approach, it seems to me the woman who gives birth is a parent. But I’m not sure that this approach, at least all by itself, generates a second parent–that’s what the last posts have been about. And the truth is, I’m not really happy about this outcome.
There are many instances where two people plan to become parents together and then, one how or another, put that plan into action. Perhaps it is a heterosexual couple and they engage in intercourse, perhaps it is a couple (same-sex or heterosexual) using ART. To me this difference doesn’t matter–I want to treat them the same.
I’d like to be able to create a rule that would allow them both to automatically become parents at the birth of a child. While it is fine to say that the second parent could adopt (at least in some places), this can be burdensome and expensive. Plus there will be inevitable cases where the second person doesn’t adopt for reasons unrelated to the relationship to the child, and the failure to adopt then becomes problematic.
The law currently does this for married couples–sometimes including same-sex married couples–the spouse is presumed to be a parent of the child. But I don’t want to use a test that turns on the legal relationship between the parents–as with adoption, there may be reasons why the couple isn’t married and that shouldn’t matter to the outcome.
So here I am, engaging in that second approach–is there some way to get to the result I want, short of abandoning my preferred de facto approach?
So I want to think about a hybrid approach. Not simply intention–because that privileges the moment of intent over everything else, and this bothers me. But where intention is confirmed by performance–by engagement with the process of pregnancy and preparing for parenthood–and where the pregnant woman clearly expresses her acquiescence with the plan of co-parenthood–then perhaps both people could be deemed parents from birth.
I think this may actually fit reasonably well with the de facto theory I’ve generally advanced–taking into account the limited extent that anyone not actually pregnant can participate in the process of pregnancy. And it modifies a pure intention test by requiring performance that confirms the intention.
There’s one other thing I’m pondering, too. What would happen if the pregnant woman changed her mind about co-parenting during the pregnancy? I’m inclined to give her the right to do that, but I need to give that a bit more thought.