I’ve been thinking about whether it makes sense to have two different sets of rules determining legal parentage–one for children conceived via ART (that’s assisted reproductive technology) and one for children conceived via intercourse. It seems to me it would be good to answer this question before one considers what the rules should be.
But perhaps there is something to consider even before answering what I have now identified as a preliminary question: What is the underlying object of parentage rules, anyway? One could obviously say they are there so we can identify parents, but that’s not what I mean. I mean what larger purpose are trying to accomplish when we identify parents? What goals do we seek to reach?
I fear this is now looking rather abstract and vague, so let me try to be concrete. One could take the view (to be clear–I do not do so myself) that the goal of law here should be to recognize and affirm the rights of “natural parents” and that those are the people whose genes created the child. This is essentially an assertion that something other than law (nature?) determines who is a parent and law should generally seek to accurately follow that lead. If this is the goal of a system of laws identifying legal parents, then I think you would not distinguish between ART and conception via intercourse–there would be no justification for doing so.
If instead you took the view that the goal of laws of parentage was to make it possible for people to become parents if they want to (perhaps because parenting is one of life’s profound experiences and all people who want to do it should have access to it), then you might decide that it made sense to facilitate ART (because that would enable more people to become parents.) With this goal in mind you might set up two different sets of rules–a special set for ART only. (I think this actually may be what we’ve got now in most places, at least to some degree.)
Too often I think the overarching goal or goals behind a system can be overlooked as we get all enmeshed in discussing the features of the system. Which is why I want to pay a little attention to the underlying question now. (I also think it is reasonable to ask people–including me–to justify their choice of overarching goals.)
For the moment, I think I’d like to offer maximizing the well-being of children as an overarching goal. (I think this is a pretty easy goal to defend–how could we question that the well-being of children is a worthy goal?) In choosing parentage rules we should choose them by considering how well they serve that goal.
I think I might try a subsidiary goal, too, which would be something about the well-being of parents/adults. If it is possible, in designing my rules I’d like to attain both these goals, but if it isn’t possible, I’d place the children ahead of the parents/adults.
Now the next question, I think, ought to be whether this would suggest a separate set of rules for ART. I think it would not. I would assert that there is nothing about the manner of conception that is relevant to the well-being of children. (I suspect some would reject this assertion, but then we’d know where we disagreed.) So I would look for a uniform set of rules, applying to all children without regard for manner of conception, that would be established with the goal of maximizing the well-being of children generally and, to the degree consistent, the well-being of adults/parents.
I wonder if I’ve made any progress here.