A Curious Compromise: Trading Donor Anonymity for Marriage Rights?

Back a few months ago there was some lengthy discussion here about the well-being of donor conceived children.   Much of this was triggered by the release of a “report” (I’m putting that in quotes because to my mind it was more in the nature of an advocacy piece that the objective term “report” suggests) called “My Daddy’s Name Is Donor.”   You can go read the earlier post to catch up with that.

I didn’t follow the discussion all that closely over the summer and so I missed this post in which Elizabeth Marquardt proposes what I think is a very curious suggestion for a compromise.   

same sex marriage can and should be legal in jurisdictions that have put in place strong recognition of, and when possible protection for,  the right of the child to know and be known by the mother and father who gave him life.

I’m trying to work out why I find this proposal so very puzzling.  I suppose on one level it is because I don’t see that the two things connected up in the compromise are necessarily related.   This makes it seem like a political trade-off (I’ll give you something you want if you give me something that I want) rather than a coherent proposal based on principle.

 I have my doubts about the institution of marriage overall (imagine long feminist digression here) but at the same time, I fail to see the justification for denying same-sex couples access to that institution.   I think we could generally agree that there is harm done in relegating a group of people to second-class citizenship, which is what barring access to a significant social institution does.   State recogntion of domestic partnership, which to many seems a pallid imitation of marriage and is reserved primarily for same-sex couples, only compounds the original exclusion. 

The question, then, is whether there is justification for the exclusion of same-sex couples.   I understand that many see marriage as an institution that is central to our civilization.  What I don’t see is that allowing same-sex couples to join in will undermine the institution of marriage.   It does not seem to me that the mere fact that some same-sex couples will marry will cause different sex couples to reject marriage. 

You’ll notice that this argument doesn’t have much of anything to do with children.   Yet it is true children and the status of same-sex couples as parents has played a role in the ongoing debate.   That’s because the parties on both sides of the debate seem to agree that it is better for children to have married parents.   Just for the record, I have a ton of trouble with that proposition.   (I’ve written about this before and I’m sure I’ll do so again in the future.)  Still, it is something the opposing parties seem to agree on. 

Marquardt’s compromise links the marriage issue to the question of the rights/recognition of a sperm provider.   This, too, is something that has been discussed here at some length.   

In truth I’m not entirely sure I understand what Marquardt is proposing.   It’s one thing to say that the identity of the provider should be something the child can learn at some point in her/his life.  It’s an entirely different thing to say that the provider should have parental rights.   

My hunch is that the “strong recognition” language signals something akin to legal parentage.    While I may be reading that wrong, it seems to me that at least Marquardt is proposing some sort of arrangement where the sperm provider has some legally defined role in the child’s life from the infancy of the child.   Even if that role is less than full parenthood, it’s a long way from saying that the identity of the provider would be available to the child if the child wants it at some point as the child nears adulthood.    

I won’t repeat my opposition to the sort of legal recognition proposed here.   You can read about it in earlier posts if you like.    What’s striking to me is the linkage of these two issues.    I think the logic behind it is something like this:  If advocates for same-sex couples will accept the primacy of biology as the determinant of parenthood, then marriage for same-sex couples somehow becomes more acceptable.  Perhaps that is because in accepting the first point, same-sex couples will have essentially agreed that they will always be incomplete parents.   It’s not a deal I’d take.      

Finally, it’s striking to me that in offering this compromise Marquardt seems to contemplate something larger than a tw0-legal-parent family.  She suggests both of the women could be legal parents and then there’s that legally recognized sperm donor.  I do think it is worth recognizing that the move beyond the two-and-only-two parent model is both a large and interesting step in a different direction.


14 responses to “A Curious Compromise: Trading Donor Anonymity for Marriage Rights?

  1. Kissarita said something similar here: https://julieshapiro.wordpress.com/2010/09/17/perry-v-schwarzenegger-iii-and-my-point/

    I am not opposed to gay marriage and I did not see what the two things had to do with each other either. I replied to Kissarita that I thought it was hypocritical to say that the law should recognize step-parent’s as parent’s to their spouse’s offspring just as long as the step-parent is straight and not gay. We had further discussion where Kisarita said that in a straight marriage the law can realistically presume that the spouse is the other parent because conception is biologically possible. Well that’s all fine and good but if the presumption is based on a misrepresentation of fact to begin with – I think all bets should be off.

    The marital presumption law needs to be axed because its ripe for fraud and misrepresentation anyway, straight or gay. I love the secondary benefit of right-wingers not being able to use that as a reason to prevent gay marriage.

    Julie you took exception to my using the term step-parent to describe people who are not related to their spouses biological children born during their marriage. I know that marital presumption law is consistent with what you say. That is the law I’d like to see change. Other people do use the term step parent for that senario, I found it here:http://books.google.com/books?id=2HbX6Zz8fzoC&pg=PA249&lpg=PA249&dq=%22not+the+mother%22+gave+birth+egg+donation&source=bl&ots=jrKgGLmCMy&sig=spsXdqb92Zy8rdlkPN1RKNY3QyE&hl=en&ei=6161TP65CoKCsQPsx4DQCA&sa=X&oi=book_result&ct=result&resnum=4&ved=0CCkQ6AEwAzgK#v=onepage&q&f=false
    in the Blackwell handbook of childhood social development
    which could be a wretched book for all I know – I was just trying to find support for my preferred terminology

  2. I’m single. Am I a second class citizen?

  3. “If advocates for same-sex couples will accept the primacy of biology as the determinant of parenthood, then marriage for same-sex couples somehow becomes more acceptable.”

    I am one of those currently opposed people, who might be more amenable to the idea of gay marriage if it were constructed as such.

    “Perhaps that is because in accepting the first point, same-sex couples will have essentially agreed that they will always be incomplete parents.”

    I would emend that statement to only one member of the couple. And that member could still choose to adopt.

    In fact, I’d suggest institionalizing an express adoption route for both gay and heterosexual step parents after a defined period of time in which they have cared for the child. (Witht the consent of the original parent, of course).

    I might restrict that to married and/or domestically partnered couples, because I really don’t take the prospective adopter’s commitment to the child so seriously if he/she is unwilling to commit to the family unit of all of them. If so, that would certainly be a legitimate reason to advocate for gay marriage- for the child’s stability.

    Gay marriage, as it is currently constructed, encourages the fragmenting of biological relationships.

    My suggestion, however, limits fragmentation as it helps to stabilize the child’s life after the fact, without encouraging it from the beginning.

    • so then you do feel stright step-parents ought to meet the same requirements as gay step-parents (when they want to be considered parents to their spouses child)?

  4. Yes but I don’t extend it to include the small percentage of cases that slip through the cracks of the marital presumption, for reasons that I have explained elsewhere.

  5. Finally, it’s striking to me that in offering this compromise Marquardt seems to contemplate something larger than a tw0-legal-parent family. She suggests both of the women could be legal parents and then there’s that legally recognized sperm donor.

    No, she’s not saying the sperm donor would be a legal parent, just that the child would know their identity (at 18, or from birth, I’m not sure).

    I agree with you (as you perhaps saw in the comments) that the two things she proposes are not quite related enough, since using donor gametes is not a right of marriage.

    Also, do you feel that a person has a right to verify that the people they think are their biological parents are in fact their biological parents, or for a husband to verify that his wife’s child is in fact his child? Do you think that people have a right to use DNA testing to identify their biological parents, perhaps collecting hairs from people they suspect might be and having them tested?

  6. I do, absolutely John. A parent’s authority to control the flow of information to their child should not outlast their offspring’s childhood. I don’t think a child should have to collect hair samples by stealth to confirm his identity. Paternity should just be confirmed for every child born when the state is collecting the rest of the identifying information and background history. Having to tell the truth will only phase the people who want to lie.

  7. John, no one has any right to collect samples from anyone’s body without their consent except for a court ordered procedure.
    And Marilyn, a government representative (usually a police officer) has no right to search me, my home, my car or anything else belonging to me, without “probable cause”. It is beyond me how anyone who wishes to live in a free country, could think of overturning that basic constitutional right with regard to even searching my property, let alone mandating a search of my bodily specimens with no probably cause indicated.

  8. If you want to be recognized as the natural parent of a child why in God’s name should anyone take you at your word for it? The stakes are much too high. Someone’s whole identity hinges on weather or not that person tells the truth. Someone could loose their child if they did not agree to have their sperm or eggs used by other people. A child could grow up to be an adult that thinks they are related to one family when in fact they are related to another. Don’t those things count more than someone’s right to lie?

    • This comment illustrates some of the identity claims I find confusing. When and how does someone’s whole identity hinge on the DNA test? I understand that the outcome could be important for any number of reasons which will in turn have an impact on one’s identity. So you could learn that your parents had lied to you–that would surely impact your sense of your self. Or you could learn that you can trace genetic lineage through a particular person–that migth shape your identity, to. But “whole identity?”

      It’s hard to think about this in the abstract–it has to occur in some context. I think the age of the child and the circumstances around whatever the critical event is matter. Perhaps there are some scenarios in which it is critically important to learn this, but I suspect that will have as much to do with surrounding circumstances.

      I also just want to flag the phrase “natural parent.” It’s one that can cover a lot of ground.

      • As you know I’m narrowing my focus to getting facts accurately recorded on original certificates even if the actual name of one or both genetically related parents is unavailable for whatever reason – and there are so many reasons why those names may not be available to the people preparing that document.
        Forgetting fancy ways of creating a family there is the issue of paternity fraud. Allowing a man to believe he is paternally related to another man’s offspring should be against the law. Its not fair to him nor is it fair to prevent the man with the paternal relationship from knowing that his offspring exists. Paternity testing should exist to make sure the adults are held responsible for their own actions rather than the actions of other people. To the extent that the state of California says it has an interest in determining the paternity of every child – well I think the State is not trying hard enough and it settles for the first guy willing to foot the bill.
        Also I think finding out that you are a member of the Cohen family rather than the O’Boil family can kind of jar your identity. You still are who you are but – come on when you are born your whole identity hinges on who your parents are for a long time. I love telling people they are Jewish when they were raised not Jewish. It blows them away (especially Jewish because for some reason its treated as more than a religion). Its a whole lot to learn about when your 40 that is for sure. Nobody has ever freaked out about it but it changes many things for sure.

  9. They have a right to ask you for your ID right Kisarita? Well that is when your identity relates to only you. What about when your identity relates to someone else? What about them?

  10. The government may require ID when it is necessary to verify that I am who I say I am. For example, I must prove that it is I who is truly licensed to operate a motor vehicle.
    This is irrelevant to the question of who my parentage is.
    A person’s parentage is only one of many way’s of identifying them. In infancy it is the only way. As they grow older there are many other ways of identifying people.
    My driver’s licence, which is the legally issues ID I always use, does not say anything about my parents. It has a photo, my physical description, my address and my signature.
    I’ve said before, that requiring citizens to carry proof of ancestry gives me the creeps, reminding me of Nazi germany. There is no reason a government needs to keep track of that kind of stuff.

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