It’s funny how sometimes assumptions pass unnoticed for a long time and then suddenly, for one reason or another, leap off the page. I’m having just this experience with the question of hierarchy in choosing among claims for parentage.
There are, as anyone reading this blog regularly will know, a number of different bases on which a person can claim to be the legal parent of a child. In a couple of posts a while back I made a nice little list. What those posts were about is how you choose between different people who claim legal parentage via different routes–and I suggests that what we had was a hierarchy–that some bases for parenthood trump others.
Now to be clear, I do think we have some sort of hierarchy. There’s a famous case from the US Supreme Court called Michael H v. Gerald D where two men both claim to be legal fathers–one because he is married to the mother (and has her support) and the other because he is genetically related to the child and is known to the child as a father. (The mother lived with the second man during various periods of time during the child’s life.) The husband wins, but this doesn’t tell us that claiming genetic connection plus a social relationship is not a proper basis for claiming legal parentage. It tells us that the marriage status trumps the biological status. (You can find a little discussion of this case here.) If the husband was not present or did not wish to claim parentage, the man with the genetic relationship would probably have established legal parentage.
But while I was busy describing how the law works (which is both confusing and controversial) I missed an underlying question: Do we have to have this sort of hierarchy? If a person has a legitimate basis on which to claim legal parentage, couldn’t that be the end of the inquiry? From a conceptual point of view, how can a basis for parenthood be adequate to establish parenthood sometimes, but not always, depending on who else is in the mix?
Then recently I’ve been writing about surrogacy. In these cases you sometimes see the surrogate’s claim to parentage weighed against the intended parents’ claims. Or, as I noted earlier, sometimes you see the surrogate’s claim weighed against the intended mother’s claim (but not against that of the intended father.) Here again, you can take a step back and ask about why the forced choice is necessary.
Two things occur to me here. First, we do not wish to create children who have no legal parents. Thus, it’s good to have back-up. The man with the genetic relationship is there in the event that the husband doesn’t want to be a parent. At least this way, the child does have a father, albeit one who can be pushed aside by more deserving or suitable candidates.
Second, we do not wish to create children who have too many legal parents. A hierarchy can (and typically does) ensure that you end up with at most two. Thus, when the husband steps forward, rather than add him (for a total of three) we push someone else out. The same thing is at work in the surrogacy context–we must choose between the surrogate and the intended mother. I’ve discussed these concerns before on the blog, but not quite in this context.
The idea of moving away from a hierarchy is substantial enough (in terms of the framework I’ve constructed) to be unsettling. What it would mean is this–you would have a test or perhaps a list of tests that identified the legal parentage of a child. You would apply these tests in any given situation. You would collect the candidates who passed the test. They would be the parents of the child. There might be none. There might be more than two. (This would obviously depend on the test used.) But you’d never measure one against another.
If you had a single simple test for parentage–take genetic linkage, say–this would be easy. (Indeed, there’s a great deal that is easy about the genetic linkage test.) But it might really force you to choose between various tests, because leaving too many tests in the mix would clearly create trouble.
I’ll stop here now. More to come.