As I’ve written this blog I’ve assumed (as is indeed the case) that there are a number of different grounds on which a person can claim to be a legal parent of a particular child. And then, as the post I just linked to makes clear, I’ve tried to consider how you weigh competing grounds against each other. For instance, if one person claims intention and another claims having given birth (this could be the dispute in a surrogacy gone wrong case who wins?
In the last couple of posts I began to think about the possibility of rejecting a hierarchy. After all, if you meet the conditions for being recognized as a parent, perhaps you should just be recognized as a parent, even if there are other people around who meet other conditions. To put this another way, if you meet the conditions for being a parent you perhaps you should not be disqualified because someone else meets a different set of conditions.
In the abstract, this seems to me to be a strong argument in favor of rejecting the hierarchical model. Once you decide that a particular criteria (say a genetic linkage (which I do not agree with) or giving birth or whatever) confers parental status, why would you deprive someone meeting that criteria of that status?
Is the main argument might be that you want a back-up parent, in case the first one doesn’t work out. What I’m thinking of is this–in cases like Michael H (which I discussed last time) the man with a biological link is there in the event the husband elects not to claim his status as legal parent.
That logic seems seriously flawed to me. If Michael is Victoria’s parent, then he should be recognized as such. If Gerald also has a claim, then he, too, can gain recognition. But it makes no sense to me to say Michael has a claim only if Gerald does not. The basis on which Michael claims parenthood (genetic linkage plus social relationship) is the unchanging. Either it is enough to claim parentage or it isn’t.
Of course, I think I know why the hierarchy approach seems natural. It ensures you won’t have too many parents, or too many parents of the same sex. In the Michael H. case, Victoria actually asserted that she was entitled to relationships with both Gerald and Michael. The Supreme Court (I think it was Justice Scalia) found this idea hardly worthy of discussion.
But, as you’ll know if you’ve been reading this blog, I don’t accept biology as the defining criteria of parentage and I don’t accept the strict limit of two parents per child. So why do I need to accept the hierarchical approach? I have come to think I do not.
This has some important implications. In particular, it seems to me I need to think very carefully about which bases for parenthood I would accept, because no one is there as a fall-back, in case no one with a better claim is around. Once I accept a basis for parentage, the people in that category are going to be parents.
I think I can live with that, and of course if one only has one basis for parentage anyway, this doesn’t really mean any change I’m going to leave this here to sit for a bit and try to catch up on current events for a while. And I noticed that the comments got lively today, so I’ll go and have a look there, too.