Some of the comments on recent posts about assisted reproductive technology (ART) and determining parenthood via DNA have lead me to think again about a foundational question: Do we need one set of rules for determining parentage when ART is used and another different set of rules for determining parentage the rest of the time?
At the moment most jurisdictions do have two sets of rules. Possibly the simplest explanation of how this came to be is historical. A first set of rules evolved over centuries and provided guidelines for all the naturally arising sorts of circumstances. (It’s worth noting that this set of rules does not use DNA as the ultimate litmus test.)
Then along came ART. A second set of rules was developed, largely to facilitate ART. In some cases, it grew fairly directly out of the first set of rules, but in other cases it was starkly at odds with the prior rules.
To make this a bit more concrete I’ll give some examples. The ancient rules associated marriage with parenthood, so that a man who was married was presumed to be the father of any child his wife gave birth to. This rule transferred nicely to ART: when a married couple used ART, the husband was presumed to be the parent of a child born to the wife, even when the child was conceived using sperm from a third party. That, then, is an instance where the new ART rule grew easily out of the older set of rules.
But if you take away marriage, the picture changes. Where an unmarried woman gives birth to a child, the ordinary rule tends to assign paternity to the man whose DNA matches that of the child. This is probably a fairly familiar rule of law. But when an unmarried woman used ART, typically she did not wish the sperm provider to become her co-parent. So not surprisingly, the ART rule is that the sperm provider is not a parent.
Even as ART was being developed (and as laws evolved to facilitate it) other changes were taking place. DNA testing became easy, quick and quite reliable. Thus, the possibility of using DNA testing to establish parenthood became realistic. At the same time, social forces were at work, making families without men (be they single-mother families or lesbian families) more common even as anxiety about fatherlessness rose. These developments, too, lead to changes in laws, though it is difficult for me to characterize them in any broad and sweeping ways.
Whatever the history, we now find ourselves with two inconsistent sets of rules for determining parentage, one for children conceived via sexual intercourse and one for children conceived via ART. On occasion, the two sets of rules would lead to starkly different outcomes and the critical question is in determining whether a man is a father is how the specific sperm that penetrated the egg leading to conception got to it’s goal. (The unwitting sperm donor case can be seen in this light.)
This strikes me as ridiculous. Of all the things the man’s parental status could turn on, this is one of the least relevant to me. And that, in turn, makes me wonder whether history is a good enough reason to continue with two sets of rules. Would it make more sense to have one single set of rules? What justification is there for having two sets of rules, absent historical accident?
This is a question I would like to think about a bit, and as it is late just now, I won’t be trying to answer it here. I would note, however, that saying there should be a single set of rules does not tell us what the single set of rules should be. My question here is only how one justifies different rules for children conceived via intercourse via children conceived via ART.