What About the Kids?: Managing After the Fact

Once again I have been away from the blog for a bit so I’ve just spent some time catching up with the comments.    It gave me a slightly different perspective on things, which I’ll use for today’s post. 

There are two kinds of conversations we can have.  One is about broad theoretical questions:  Should surrogacy be permitted?  If so, under what circumstances?  How should we regulate ART?   A blog is a fine place for discussions like that.   I suppose I would call them “policy questions.”  

There are a couple of keys to intelligible/productive discussions of policy.  One is clarity–particularly clarity in language.  It’s essential to understand what is proposed and where agreement/disagreement lie.   This may sound easy, but it is not.  Consider the slipperiness of words like “parent”–with or without modifiers.    I might want to ask “Should a sperm donor be considered a parent” and to someone else this question might appear ridiculous–because I mean “should a sperm donor be considered a legal parent” and  the other person might be thinking “but the sperm donor is the genetic parent–how can you deny that?”   

The second key to productive discussion, it seems to me, is trying to articulate not only conclusions but reasoning.   Hence my recurrent question for those who want a rule that genetic forebears be recognized as legal parents:  Why?   What set of assumptions/arguments supports the assertion that the genetic forebears be recognized as legal parents?   

In the end I think that all possible answers to the big policy questions rest on various sets of assumptions and arguments based on those assumptions.    I include my own answers here.   And I do my best to articulate the assumptions and the arguments.   (This reflects yet one more assumption which some may dispute–that legal parentage is something that is created and assigned by people–it is not a natural phenomena.)

But there’s this other set of questions that crop up persistently.   Put policy aside–how do we deal with real children who are in real situations?   Consider the French surrogacy case that I posted about last week.   In her comments, Kisrita (among others) really focussed on what the case meant for the kids involved and it seems to me that’s an important thing to do.   After all, the kids had nothing to do with the evasion of French law about surrogacy.  

While it seems perfectly legitimate and appropriate to focus on the individual kids involved in these cases, it can play havoc with the policy discussions.   What’s the right way to both to justice to the kids involved in the French case and uphold French policy about surrogacy?   Perhaps it is to directly punish the parents–a fine, perhaps?   For if anyone is culpable it is the parents.   It’s curious (and noteworthy) that the law often seems to end up punishing the children. 

Perhaps the idea is that the French children are part of a cautionary tale–the next French couple won’t do this because of what happened to this set of kids.   Maybe there is something to that, but surely we ought to consider the trade-offs of teaching by example. 

Don’t get me wrong–you cannot go waiving your legal policies every time there’s a child involved.     Sometimes individual children must suffer harm/disruption in order to sustain a larger point.  

For an example, consider the hotly debated case of Sean Goldman.   At some point Sean Goldman had lived with his mother’s family in Brazil for a long time and had little contact with his father.   If we cared only about the child, we might consider whether it was reasonable to leave him in the place where he had developed ties.   But he had been brought to Brazil wrongfully, in violation of his father’s rights as a parent.   His  return to his father can readily be justified not on the basis that it was the right choice for this individual child under these specific circumstances, but rather that it was mandated by respect for the rights of parents generally. 

All of which makes me wonder how we decide when to accommodate particular needs of specific children and when to stand on principle.


One response to “What About the Kids?: Managing After the Fact

  1. “Hence my recurrent question for those who want a rule that genetic forebears be recognized as legal parents: Why? What set of assumptions/arguments supports the assertion that the genetic forebears be recognized as legal parents? ”

    Who wants a rule that genetic forebears be recognized as legal parents? I think Marilynn and I and DC advocates want a rule that the genetic forebears are identified on the birth certificate as the mother and father. But we don’t demand that they be the legal parents. There needs to be another document for public use to declare who the legal parents are. (And isn’t “legal parent” the same as “legal guardian?” Or does adoption make a legal guardian into a legal parent, and set up inheritance, etc? Inheritance could be set up with a will, without having to pretend that the child is a descendent. And inheritance passes on to descendents even if they were not their legal parents. Robert Johnson’s illegitimate son was never raised by Johnson, but everyone knew it was Robert’s son, so he inherited Johnson’s estate anyway.

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