Two Parents At Birth?

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.


17 responses to “Two Parents At Birth?

  1. The only two obvious parents at birth are the biological parents whether through natural process or ART. I also recognise that if the woman is married her spouse is deemed biological with which I disagree. I know you do not believe someone donating/being paid for his sperm/her egg are parents but biologically they both are and it really is important to one created. To deny that the biological parents are not the parents is to deny science – one sperm – one egg – joined together to create one person.

    Who becomes the legal or social parent is different and should be done through a legal court process to document the difference and protect that created persons rights. Right now as far as I know in the US only adoptees have a court documentation trail that will be preserved even if it is sealed from the adoptees – it is there and can be accessed – of course it should not be sealed from the adoptee but that is another matter.

    I want to see the fall out in the next 50 years over the current practices in ART as you can already see it coming.

  2. I tend to agree with the de facto parent doctrine

    but I don’t think it really can apply at birth. For a non genetic person to be recognized as parent, they must have developed the relationship to the point that their absence would be felt, detrimentally, in that child’s life. exactly what age that is, is unclear but it’s certainly not applicable birth.

    My ownly problem with that is that it would privilege the primary caregiver over the breadwinner, but perhaps in the scheme of things that’s not such a great issue. It’s unfair but true, that the measure of the adults’ contribution, does not always correlate with the child’s welfare.

  3. … and if we are forced to seek out criteria to MAKE someone a de facto parent before that actually occurs, that kinda contradicts the whole concept of de facto, doesn’t it?

  4. marilynn huff

    Yall are missing the point. There does exist a precedent for the mother of the child to assign the roll of second parent to someone other than her child’s father at birth and without that person having to adopt from the father. I think it is that historical precedent that interests Julie most because mothers have been allowed to name a biologically unrelated male as the child’s father at birth, but have not been allowed to name a woman. Therein lies the inequity if gay and lesbian relationships are to be treated fairly then it should not matter what sex the biologically unrelated partner is – they are being named as the parent of a child that is not their offspring at birth and without having to adopt. I think Julie sees this as a way for two women to build a family together the way a fertile woman and an infertile man might (with a sperm donor). She wants at that right. To that end I feel she has a very strong case for changing the law to make it fair.

    However the law as it stands is wretchedly unfair to all kinds of people because it allows for all kinds of lying and steeling to go on. I don’t think there is a strong case for making it ok for Lesbians to lie and steal right along next to heteros, I think we need to shake out the problems with the law and make it work for everyone.

    Are there times when it would be acceptable for a mother to name her biologically unrelated partner as the parent of her offspring at birth without having that biologically unrelated person adopt the child from its father? Maybe, when its clear that the father is truly anonymous to the mother so that she can prove due dillegence in having attempted to make the father aware of the birth of his child, and this would be possible by submitting all the donor forms. So maybe if it was clear that the biologically unrelated person knew that the child was not biologically related (that the mother was not tricking him) and then at that point absolutely a biologically unrelated man is equal in force to a biologically unrelated woman – here is the kicker, if we don’t put biologically unrelated men on birth certificates as the “father” but as just another parent then there would be no overt implication that it must be a male in that role and nobody would get to pretend a biological relationship exists where one does not. What is wrong with the law currently is that it allows people to pretend they are related to the child when they are not. Its fraud and its wrong its a crime to do that to a child. See a lesbian partner does not want to be related to the child so in my mind it has the potential to do less damage.

    There is an opportunity here I think to correct some things in the law that are wrong and unfair so that its clear that people are aware of what is going on all around and nobody is tricked into believing anything that is not true.

    I do think Julie you need to aknowledge that a woman is attached to the fetus in her womb emotionally not because of the pregnancy but because she created that fetus herself. It is an extension of herself which is why she feels entitled to raise that child herself. When one aknowledges that unique bond between creator and created one has to aknowledge that men have that as well as women. She could not go through pregnancy or childbirth had she not created the child herself – like when she is a paid gestational surrogate-it is in fact that relatedness that makes the relationship really special. I think you can and pretty much must aknowledge that people will generally want to be recognized as a parent to their own offspring. You must be fair to men who want to be involved in the lives of their children, I think what you want will not be compromised by being fair to them. Not at all.

  5. Julie I would like to offer you and your readers here a scenario which involves me personally on the issue of de facto parent.
    My unmarried daughter gave birth to my grandaughter on February 28,2005 in Elkhart, Indiana, I cut the cord at birth, and I was given this child to raise by the Mother. The father lives in Louisiana and refused to have anything at all to do with the child even after sending him letters and pictures. I as the Grandmother loved nurtured, and cared for my grandaughter in my home for 4 years. I petioned the court for guardianship so I would have a legal standing as the child’s primary caregiver and with my daughters consent was awarded permanant guardianship over my Grandaughter on November 15,2007.
    The State of Indiana went after the father for child support and DNA testing was done in September 2008, a child support order was implemented in December of 2008 and low and behold the father calls! He wants to be a part of the child’s life, we make a verbal agreement and I sell out and re-locate to Louisiana so my Grandaughter would have access to her father.
    Without an acknowledgment of paternity being signed Louisiana took this child from me and the Mother, giving her to strangers(her father) November 15,2009 and I was told I had no rights whatsoever as the Grandparent. Although I have been fighting this custody issue Pro-Se, I am denied by the court to be recognized as this child’s de facto parent and reciently ordered that I could not be alone with my 5 year old grandaughter which I raised.
    In all honesty I believe this situation falls under the de facto parent claim and I as the child’s primary caregiver should in all fairness and under law, in the best interest of the child be recognized as such, it is my belief that the parents are the individuals who have provided substantial physical care of the child.

    • Marilynn Huff

      But you are her grandmother not her parent. I do not know all the details but from an outsiders perspective it seems to me whatever it takes to wake an absent parent up to the fact that they are not doing right by their child and that its never too late to make a difference in your childs life. So long as he is not abusive and the child is in no danger with her father I would say that it is absolutely best for her to be with him in the long run. Grandparents are not suppose to have to take care of their grandchildren to the same extent that they took care of their own children. I know it happens a lot these days when a child’s parents fail to meet the challenge thank goodness there are loving grandparents around to help so that the children don’t end up living with strangers in foster care. But the goal ultimately would be for one or both of the child’s parents to grow up and take care of their own children.
      How awfle it would be for your granddaughter to grow up and reflect on her childhood that she was unwanted by not just one, but both of her parents. I commend him for making the effort to show her that she is important to him and his family even if she’s 15 years old, its not too late to make her a priority. Its too bad that it took an order for support to wake him up, but its a good thing.
      You should have visitation as all grandparents should, probably more since through you your granddaughter can hear good things about your daughter (something she may not hear from her father).
      Lots of single parents have custody of their children and the children relate to their grandparents as grandparents – not parents. Its a real good thing you were there to keep her out of foster care – let him do that now its his job he should do it.
      I really hope your daughter decides its not too late at some point too. I wish you and your family the best.

  6. I would have done the opposite; leave her with the grandmother and give the father visitation.

    However I suspect there is more to the story. Why was the child taken away from both her mother and grandmother, and now they are not allowed to even be alone with her?

    • marilynn huff

      She needs to be with her parent if her parent is capable of taking care of her and wants her that is absolutely best. Can you imagine learning that you have a child having it confirmed by DNA testing, learning that your child’s mother is unable to care for her – and then being told you could not have custody of your own child? Maybe he did not believe it was his child until the DNA test confirmed it maybe his mother and sister’s talked some sense into him whatever the case she’s only 5 so she will hardly remember not living with him as she grows older. My daughter does not remember when her dad did not live with us and that was just a couple years ago, she’s also 5.
      Grandparent’s pitch in when parent’s can’t or won’t do the jobs themselves. They should be doing it hoping that their own children will recover (or what ever) and take on the responsibility of raising their young themselves.

  7. having a new parent move in is a big upheaval in a childs life, but being moved to another residence is so much more. I don’t believe a child should be removed from a stable home, except perhaps in cases of foul play, in which case caution must still be taken.
    A person can not change there mind all of a sudden out of the blue and introduce chaos into someone else’s life. You make the decision, you live with the consequences. You didn’t want to be involved earlier, now live with it. Be happy you at least get to have a relationship with your kid. If you really turn out to be such a great dad after all, she can always come to you when she’s old enough to make up her mind.

    (This is Julie’s worst case scenario)

  8. Kisarita you said “You didn’t want to be involved earlier, now live with it. ” What if a man is unaware that his ex had his child or it takes a while to confirm it. What if the letters with photos did not reach him? What if the State agency was able to locate him while the mother and grandmother were not? Now I’m not saying that is the case in this instance, but certainly there are many men who do not become aware of the existence of their child until a State agency locates them because the state has access to records we as private citizens do not. Then its not about making a decision to not be involved its about not knowing. Also I maintain – its never too late to be involved with your child and it will mean a hell of alot to that child later in life to know that her father fought for custody. That one of her parents WANTED her.

  9. The opposite, she will know that he fought to remove her from her home, when he could have been involved without doing that.

  10. marilynn huff

    II know that annecdotes are not popular around here but I have had the opportunity to meet a lot of seperated families and all of them wish that their absent parent had put up a fight. By far the most profoundly damaging thing a parent can do is not want to disrupt their childs life. I’ve heard so many times “I did not want to interfere” “I did not want to disrupt (his/her) life in a stable home” – to the kid it seems like the parent does not care. Get in there and fight for custody of your child. Kids are resilient. Get visitation, send cards, send letters and fight for custody until that kid turns 18 – even if you never get custody fight for it because the moment you can take care of your kid is the moment you should take care of your kid. You should NEVER give up and roll over and think that your child is better off being raised by someone who is not their parent. If your poor and the grandparent is rich – if you can’t offer your child the same opportunities – it does not matter the damage of you giving up is huge. I’ve met so many parents whose kids were raised in nice stable homes away from them long after they were sober and on their feet – capable of taking them back and raising them themselves. The kids are hurt that they did not try. I’m sure you all can come up with examples to contradict me but I maintain that as soon as a parent can take care of their child they should and nobody should try to stop them.

  11. marilynn huff

    Most girls that gave up their children for adoption were capable of raising them within a couple of years – its tragic that adoption won’t allow the child to be returned to to parents when they are able to raise them. A couple of years of help is all it sometimes takes. The idea that if you can’t take care of your child for a period of time that you should loose the right to do so forever is wretched. The goal should always be to return the child to his or her parents if its safe and possible.

  12. marilynn huff

    Julie I have been reading alot about the feminist position that giving birth is more important than genetics in assigning parenthood. Is that position taken for the sole purpose of gaining independence as the only parent of a child? Because I can see where a lesbian woman is just as likely to have difficulty carrying her own child to term as a hetero woman and might seek surogacy – even more likely since many lesbian women have their partners carry their genetic offspring for them. Is there any concern that the birthgiver-only-parent approach might hurt that segment of lesbian parents?

  13. Marilyn I am truly touched by your comments here on the de facto parent doctrine, and I believe that the individual who raises the child and has had physical custody fro a substantial period of time has the right to claim the status of a de facto parent, and that status should indeed be recognized and recorded in the courts. In my situation the biological father knew of this child when the Mother was pregnant, was notified after the birth and refused to take responsibility until ordered to pay child support. The Mother gave me the child to protect her from an abusive boyfriend and couldn’t get pout of tha relationship until I took the steps to re-locate to Louisiana, I have lost custody, and am denied visitation of the child I raised and the bond between us has not been severed thanks to the Mother who has visitation. In this scenario the fathers only reason for wanting the child was to get out of paying support. A de facto parent should be recognized and supported by law. Although the Grandmother I was legal guardian of this child and primary caregiver for the first 4 years of her life. In many situations I believe that biological parents should be denied custody of their children if no attempt is made to establish a relationship with the child in a reasonable amount of time such as this case.

    • Marilynn Huff

      I hope I was clear that I did not know the particulars of your situation and my comments were only meant in general – all things being generic I believe that your daughter should not be prevented from seeking joint custody when she is ready and able and neither should the father when he is ready and able – because that should be the goal – for your grandbaby to have a Mom and a Dad who love her. It seems to me that the court should probably have done some kind of joint custody between you and the father since your daughter asked you to help her take care of her daughter.
      I hope you are successful in at least sharing custody or that your daughter would be – your granddaughter should not be kept from your daughter or you – I just think if he’s willing and able he should at least share custody with the mother or you. Good luck. You kept her out of foster care, you are an example of what family is suppose to act like.

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