A Different Way Of Framing The Choice: Marriage vs. DNA

I’m still thinking about that recent Kentucky case where the court essentially chose DNA over marriage as a means of establishing parenthood.   Not so much about which is the right choice as about the different ways one can lay out the options.   And of course, how you describe the choice can have a lot to do with what gets chosen.  

It seems to me that one way to characterize the choice is that you can have the truth (that would be the DNA test results) or you can have the optimistic hope (that would be marriage.)   This, it seems to me, is how it is often framed by those who think that DNA is the obvious answer.  

But here’s an alternative framing you could think about.   Take the facts in the Kentucky case (the earlier post links to the opinion)  and think about it from the point of view of the child’s well-being.   There are two options for how the child’s life will be organized.   

If you enforce a strong version of the marital presumption, then the child lives in what is sometimes referred to as an intact marital family.  That is, the child has a mother and a father who are legally married and who live together.    Remember that I’m talking about legal parentage and one can perfectly well say that the husband is the legal father of the child. 

If instead you go with DNA that the child lives with its mother and step-father part of the time and with its father (who is, in this particular case divorced) part of the time.   Further, we the child’s mother and father do not get along terribly well, nor do the child’s father and step-father.  

 It’s important to realize that these will always be the two options in the circumstances we’re thinking about (minus the part about the DNA guy being divorced–that will vary.)   We are considering the application of the marital presumption in a case where the husband and wife are united in their desire to raise the child within their family despite the genetic link to the other man.  

Now many people might say that it is better for the child to be raised within the intact marital family than in the split custody decision, especially as the split custody is likely option may very well include some acrimony.   This being the case, it seems to me that you can make a fair argument that a general concern for the well-being of children weighs in favor of a strong marital presumption–in cases where the husband and wife wish to raise the child together.    In other words, there is a child-centered argument in favor of picking the marital presumption over DNA.    I hadn’t really focused on this before.

You can also make a pro-marriage argument in favor of the marital presumption–and this, I think, is part of the argument offered by the losing side in the Kentucky case.   Let’s assume we have a society interest in marriage generally.  (I don’t particularly buy this, but this is not the moment to discuss that.)   If we go with the marital presumption we support the existing marriage of husband an wife.   The husband is aware of wife’s infidelity but is apparently willing to put it aside.    We support him in doing this and in continuing the marriage.  

If instead we go with DNA then we put more pressure on the marriage.   Husband and wife are still free to remain married, but they must share custody of the child with the man who provided the DNA.   It’s easy for me to imagine that under these circumstances the marriage is much more likely to fail.   And this, I think, is why organizations like the Catholic Conference are supportive of a strong marital presumption.  It is not that they think it usually is the husband’s DNA–it’s that there are social goals that are served by the presumption. 

Now you can certainly say this isn’t fair to the person who provided the DNA.   And fairness is also an important value we need to consider.   But if you think of the role he is playing (the wife’s lover) he is not the sort of person we are generally very concerned about.

There’s another issue I haven’t addressed, too.  What does the child know?  Does the child believe that husband is the source of DNA?   If you go with the marital presumption then it is possible that the child would be deceived on this point.    

 

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29 responses to “A Different Way Of Framing The Choice: Marriage vs. DNA

  1. I can see the point that the child’s interests might be better served by denying the existence of the lover. I am sure that this is true in some cases. However, I am just as sure that in other cases it is not. In order to override what we know to be biological fact, we would need some pretty strong empirical evidence, not just speculation.

    (This is assuming we believe that it is ever justified to ignore fact, which is also a point of dispute on this blog)

    • What would we need empirical evidence to show? I’ve never been clear on whether there is empirical evidence to support a preference for DNA/genetic connection.

      I can see many reasons why this might be hard to study. Would we try to compare the well-being of children born of extra-marital affairs who are raised by the husband/wife vs. the well-being of children born of extra-marital affairs who are raised by the wife/lover?

      I’m not saying that empirical evidence is useless, just that it would be hard to get and subject to all sorts of interesting criticisms if it came around.

      • Exactly the point. The law should decide on the basis of known fact; not on some conjecture on the bests interest of the child for which there is no emipirical evidence.

        • Evidence would be nice but I’m not sure we really have enough evidence to support any of these choices, including the ones we make now. You can understand the choices we make by studying the history of family law, but in the end all the options are based on beliefs rather than real evidence, I think. Once we thought children were better off being raised by their mothers. Now we don’t. The shift wasn’t made based on evidence but on ideology, I think. And that’s what most of this stuff is about.

          • I believe you have misunderstood me. I will try to clarify my position:
            I am not asking your for evidence on the child’s best interest; I agree that there is none. Therefore the law can not be based on “best interest”.

            However, there IS evidence for genetic paternity. The facts here are known.
            With only an ideological, non factual basis to overrided them.

            • I’m still a little confused about what you mean. It’s true that we can reliably establish genetic paternity. And this makes genetic paternity easy to establish with certainty. But that in itself is not (to me) a reason to use it as a test for legal parenthood. Is there evidence that genetic paternity is the best basis for establishing legal parenthood? That it serves the interests of children to use genetic paternity as the determinant of parentage? This is where I think we lack empirical evidence.

              We might all agree that we should choose the test for parenthood that best serves the interests of children. I’m just not convinced we have evidence that tells us how to answer the question. (It’s also possible that there are other interests to consider–like those of involved adults–but i leave that for another time.)

  2. Julie,

    In every story I have read from a “Late Discovery Adoptee” except for one their entire life history has become nothing more than a lie. It is heartbreaking to read. In the best interests of the child you must also consider the entire lifetime of the child – not just up to age of majority.

    Secrets and Lies are wrong – google “Late Discovery Adoptee” and see how they feel. It is eye opening.

  3. Its fascinating to me that right wing, bible banging, family values, homophobic hate spewers and left wing, religion rejecting, angry gay and lesbian radicals actually agree that the State should not use DNA to determine the legal parentage of the child. The most vocal activists on both sides of the SSM are in absolute agreement that marital presumption should prevail over genetics.

    I’ve read statements by those opposing SSM stating reasons like SSM will increase the number of children unfairly denied relationships with their fathers or mothers because gays and lesbians will necessarily be raising children that have one or more anonymous-for-money parents. They warn that SSM devalues biological parents and destroys families. Now that part I agree with except something about that argument felt shifty to me because if the SSM opponents really cared about preserving a child’s connections with biological relatives they would not be worried about same sex marriage they’d be worried about the laws that favor the relationship between the spouses over the parent child relationship. In fact these same people that get so angry about the destruction of the biological family will turn right around and call for the destruction of a biological family in order to preserve the relationship between spouses – so long as the spouse is a member of the opposite sex. That hypocritical thinking makes my frking skin crawl. These conservatives don’t care about the child or the child’s parents like they claim to they care about appearances, they care about creating the perfect facade of conservative upstanding middle class white picket fence world where unmarried parents are shamed into relinquishing their children to older married couples that live in the suburbs. They think society is crumbling because of all the fatherless children being raised by black welfare moms and “baby daddy’s”. The hate and venom and judgmental superiority of these people infuriates me my blood boils at their smugness. And the same goes for gays and lesbians that say virtually the same thing.

    And then it hit me all the statistics fell into place in a very different way. Those gays and lesbians, are college educated professionals. They are middle and upper class raised more than likely in homes where their mothers were college educated….like the statistics from the CDC on what type of unmarried parents give their children up for adoption at birth: unmarried parents who have the potential to get a college education, that come from middle or upper class families with college educated mothers are more likely to give their children up than poor unmarried parents.

    Then I thought college educated middle class families encourage their children to get an education before getting married and starting a family – its the educated people with good incomes that are all trying to start their families at the tale end of the woman’s reproductive life. The pursuit of education and financial independence is a singular pursuit that isolates individuals and makes maintaining biological family relationships less important your simply less dependent upon one another when you can take care of yourself and are less inclined to share with moochy family. They are more concerned with appearances than with biology – so if you give your baby up for adoption at 16 and then find your infertile when your married at 35 you can just adopt one yourself.

    So there it is people must pull together more when they are not financially independent. Biological relatedness matters more to poorer people. The gays and lesbians raising children conceived with the help of a physician are at the very top of the economic food chain just like the people who oppose them in their bid for marriage equality. Its all a bunch of self centered egocentric crap – people want to say that the spouse of the mother is the parent of the child. Her relationship with her spouse is not a permanent one how dare a mother create a permanent legal relationship between her child and someone that she has a temporary contractual relationship with! How dare she make a permanent legal bond between her kid and another human being when she can just opt out of that relationship herself when ever she feels like it? That is so so wrong. How can the temporary changeable nature of marriage trump the absolute permanence of being related by flesh and blood? How dare she erase the real relationship with a child’s parent for a relationship that could fall apart if her spouse cheats on her?

    Boiling now.

    • I should be clear that when I said I was sorry to Karen Alana and Stephanie, They don’t fall in to either category that I was describing, They are writers and I am not. I’m more of a blurter really. It was so rude as to undermine my point. Which I caught on to. So I’m saying sorry for being tacky.

  4. Julie
    Can you please delete this sentence or allow this retraction of it to stand? “Its fascinating to me that right wing, bible banging, family values, homophobic hate spewers and left wing, religion rejecting, angry gay and lesbian radicals actually agree”7 It should say its fascinating that the most extreme activists on both sides of the ssm debate the most vocal – seem to be in agreement that marriage should determine parenthood not dna.

    Karen, Stephanie and Alana. Sorry i appolkogize

  5. chill Marilyn. Being equally offensive in both directions I view it as legitimate poetic license….

  6. DO ADULTS HAVE A RIGHT TO SOMEONE ELSE’S CHILD OR DO CHILDREN HAVE A RIGHT TO THEIR PARENTS?

    I think there is a lot of truth in how the class of people that put education and career first on both sides are the ones that minimize biology. They’re also the people that are so involved with their brain that they pay no attention to their bodies. They’d prefer to live in a world disconnected from their bodies. So why would it be important to their children to be connected to THEIRS and their natural families?

    1. biology DOES matter. People want to know where they come from. They want to have an idea what they will turn out like (especially as they age and face medical issues- wouldn’t you want your daughter to know if her “egg donor” had breast cancer?). We want to know that our mothers liked and respected our fathers and that our fathers liked and respected our mothers. That way we can like and respect ourselves.
    2. That is why we have encouraged sexual exclusivity in marriage for so long. Because the married couple can have and enjoy their child with full confidence on the father’s end that the child is biologically his and he’s not paying $100k on college for the milk-man’s bastard, and the child can receive the beautiful gift of knowing its parents, their family background, their medical history, and their full love and attention.

    Anything less is robbing the child of one of its parents, a biological father from the joy of knowing its child/fatherhood, and the married couple from harmonious relations.

    It’s about respecting people.

    I don’t know why it’s so hard to respect and include your child’s natural parent.
    I think if you’re unwilling to include your child’s natural parent in their life than you ARE by DEFINITION a bad parent.

  7. marilynn huff

    If you enforce a strong version of the marital presumption, then the child lives in what is sometimes referred to as an intact marital family. That is, the child has a mother and a father who are legally married and who live together. Remember that I’m talking about legal parentage and one can perfectly well say that the husband is the legal father of the child.

    Marital presumption is little more than an educated guess by the State. They presume the husband is the father unless someone says otherwise. To suggest that a man is entitled to claim his wife’s children as his own despite a false presumption of paternity suggests that he is entitled to claim them as he would any other property she earns or inherits while they are married. It treats people like marital property – too bad if another man invested in that property the profits go to the husband. Your suggesting that the children are not free to know or be known to their own father’s family because their mother is contractually obligated to transfer the title of father to whoever she’s married to. Or that the mother should even have that option is horribly offensive because neither of them should be treating her kids like joint property.

    I know this disturbed you and Kisarita both but I’m going to say it again if you don’t see the parallel in thinking to that of a slave owner holding title to his slave and any children his slaves have – your not dialed into the reason why these reproductive arrangements are a violation of the child’s personal liberties. That a person’s children could be absconded with and treated as the property of his lover’s spouse is a terrifying prospect.

    The best interests of the child are served by an option that you did not explore, cooperation of the parents and who cares if their marriage suffers for it? why do we have laws that favor the temporary nature of marriage over the permanent parent child relationship?

    • There are two quite different ways of thinking about the marital presumption. One is what you describe–it is an educated guess, perhaps even an optimistic assumption. If you think this is what the marital assumption is, then the advent of reliable DNA testing makes it seem silly.

      But there is another way of looking at it (which of course you are free to reject). You can think of it as a choice to entitled married couples to special powers. So a married man and woman can choose together to raise a child no matter what the DNA. But they don’t have to. If either one of them wants out, they can do that. The married couple gains power, the man who is the source of the DNA loses it. This might mean that men are a bit more cautious in having affairs with married women, though I rather doubt it. It’s surely a way of privileging marriage–nothing else gives you a similar entitlment. If you think about the marital presumption this way, DNA testing doesn’t make it obsolete.

      • The availablity of DNA testing is not a good criteria to apply in determining parenthood because it’s a terrible overreach of the powers of the state.
        The state should only invoke DNA testing when their assistance is requested by one of the involved parties.
        My DNA is absolutely none of the state’s business.

        • I think your DNA is not the government’s business either Kisarita, unless of course your about to leave the hospital with a child that by rights belongs to someone else who never intended to “donate her egg” or “donate their sperm” or “donate an embryo”; unless your about to go home with a child that would rather be raised by parents he’s related to. We worry about strangers taking babies from parents, but we are not worried about giving babies to parents that are strangers?

          I question the judgement State’s use to establish who is and is not “an involved party” at the time of a child’s birth, since the most important party to a child’s birth won’t be free to request the State’s assistance for another 18 years. In many cases that’s 18 years after being handed over to parents that are not related to them.

          I question the judgement State’s use to establish who is and who is not “an involved party” when the people who reproduced to create the child may not even know that they’ve reproduced.

          I question the judgement State’s use to establish who is and who is not “an involved party” when we know it could result in a child being raised in an unrelated family without benefit of a court approved adoption and no proof of their genetic parent’s knowledge or consent.

          I question the judgement used by State’s to determine who is and who is not “an involved party” when million’s of “involved parties” are asking for assistance to no avail because, its too late.

          • I think your DNA is not the government’s business either Kisarita, unless of course your about to leave the hospital with a child that by rights belongs to someone else who never intended to “donate her egg” or “donate their sperm” or “donate an embryo”; unless your about to go home with a child that would rather be raised by parents he’s related to. We worry about strangers taking babies from parents, but we are not worried about giving babies to parents that are strangers?

            I question the judgement State’s use to establish who is and is not “an involved party” at the time of a child’s birth, since the most important party to a child’s birth won’t be free to request the State’s assistance for another 18 years. In many cases that’s 18 years after being handed over to parents that are not related to them.

            I question the judgement State’s use to establish who is and who is not “an involved party” when the people who reproduced to create the child may not even know that they’ve reproduced.

            I question the judgement State’s use to establish who is and who is not “an involved party” when we know it could result in a child being raised in an unrelated family without benefit of a court approved adoption and no proof of their genetic parent’s knowledge or consent.

            I question the judgement used by State’s to determine who is and who is not “an involved party” when million’s of “involved parties” are asking for assistance to no avail because, its too late.

            Also Kisarita I want to challenge the flip-floppieness of when testing is a violation of privacy and when it is not. If the government is paying to raise someone elses kid, they can test ton’s of men without it being an invasion of privacy.

            So privacy turns on $$$$$$$$$$ just like parenthood? Nice.

            • Marilyn–I’m tempted to say that you think there is a natural right (that is, a right existing by nature rather then by any act of people) for a person to claim parentage because of the DNA. This assumption seems to underlie many of your comments and reactions. Is it a fair statement?

              I do not mean to suggest that there is anything wrong with claiming there is such a natural right, by the way. But this is simply an assertion or an assumption and it is one I won’t make. So I think it lies at the very heart of our disagreements. It is also a position that must be justified–by which I mean that you cannot just assert that it is so and expect that other people will agree.

              I think this is the core of most claims about the essential importance of the genetic connection, by the way. So you are not alone if this is the assumption you start with. Many people believe that DNA is the essential marker of parenthood because nature made it so.

  8. Once again the slave analogy is inappropriate given the cruel history of actual slavery in our country. With the one exception of access to his biological roots that person grows up with the exact same rights and freedoms as any other.

    • how about a livestock analogy – if your neighbors stud jumps the fence and knocks your filly up the foal she delivers belongs to you because you own the female that gave birth. That’s pretty much what I think I’m saying. There is the whole well a man can’t marry a horse thing, to which I’d say well, a man can’t own a woman. And it does not matter how related we are by blood or adoption or sheer love, we should never think we own our children.

      • I’d like to think that we’ve moved along from a time when children were considered property (and that would be property of the father.) In a general way, I think we moved from that view to the idea that young children were the special charges of women, who were singularly well suited to raise them. And we’ve tried to move from that, too, to a more balanced view of gendered parental roles. But of course, traces of history always remain.

        Once children were more of an asset. They worked the farm, they took care of you in old age. Now they are more of a liability. You have to buy all this stuff for them. Childhood goes on so much longer–it’s the rare child who is earning his/her own keep by 15. Things change, but slowly and maybe never quite completely.

        • Well Julie isnt it wrong to consider children to be the property of the woman who gives birth just as wrong as considering them the property of a man? The problem with the law is that parentage of children is being determined by who hapens to possess them at birth rather than children being the responsibility of the two people that reproduced to create them. Cause and effect, if you cause something to occur your responsible for the ramifications of your actions. That is not a property based approach to the responsibility for a child, calling a child the property of the woman who gives birth (overlooking the fact that she may have become pregant with another woman’s child due to error or outright graft) is lazy law its unfair to some people but we just ignore them. Calling that woman’s husband owner is lazy law too because we don’t care who that is unfair to either. Its lazy and discriminatory penalizing women who are disabled and cannot carry their own offspring, it penalizes unmarried men who could be denied the opportunity to provide for their children and be part of their lives, its unfair to married men who can be duped into bonding with another man’s children and duped into supporting them when really that is another man’s responsibility, its unfair to the children who have half or sometimes all their relatives erased to serve the needs of people who wish they were parents.
          its rude lazy law. Its not in the best interest of children to be raised by two people in a committed relationship if in order for that to happen half the childs family has to be concealed by some paid middle man or something. Its never in the best interests of a child to be treated as the mother’s personal property rather than their parents’ natural responsiblilty.

          • I imagine we agree that it would be good for a child to have at least one parent at the time it is born. You’re attached to one way of identifying the parents–and it will always yield two. That’s DNA. I don’t see that this method is any less like property-based regimes than is my method of looking for the people doing the work, say. Either way you are assigning “ownership” of the children.

            To put this slightly differently–there is a fundamental issue here–how do we assign legal parentage. Using DNA is certainly one option. But it doesn’t solve any of the property problems you’re thinking of as far as I can tell. It just assigns ownership based on contribution of raw materials rather than labor.

            I think you’re assuming that the DNA route is a neutral starting point perhaps, but it is nothing more than a different choice.

  9. OK kisarita its the only way to explain it what we are talking about here with marital presumption when its known to be incorrect yet allowed to still stand despite pleas from the actual father to please let him help raise his child – we are talking about ownership of your spouses child or hell ownership of your own child to the extent that your allowed to not only revise narrative history in their own home but for the record publily on official documents. The child will be prevented from being a member of his or her own family unable to freely be raised by their own parent who in this case wants to raise them. Its irrelevant that they don’t have the kid out picking cotton – they are asserting that they own him like property obtained during marriage, like the kid is not hers and the father’s separate from the husband. Like the husband deserves to reap the benefit of the wife’s kids like laborers or something. I can imagine this might be helpful if you had a farm and like some fields to till

  10. ki sarita, you say that “With the one exception of access to his biological roots that person grows up with the exact same rights and freedoms as any other”. This is not always the case.

    I read an interview with a donor child in California. Her single mother used donor insemination and she grew up in what is technically called ‘deep poverty’, living off food stamps. She didn’t only have problems with her identity.

    In California it is a criminal offence not to pay child support. You can be imprisoned if you don’t pay. They value fathers supportive role so much, that fathers are classified as criminals if they don’t fulfill that role. It is much the same in the UK. There are several reasons for public support of this policy: saving on welfare expenses, making men ‘accountable’ etc. It is however a fact that more than a million children in America are lifted above the poverty line by child support alone, so they haven’t got it totally wrong in California.

    To get back to the donor child living off food stamps: her father didn’t get his car impounded, he didn’t loose the right to run a business (UK) and he wasn’t thrown in jail (California). On the contrary, he was rewarded for his efforts where the high point probably was leafing through a pornographic magazine while he was paid for creating another person.

    It is easy to blame the mother, but it is the state which has stripped her of her rights. Maybe she could sue the government for ‘loss of a provider’ as sometimes happens in murder cases.

    I wonder if anybody could explain to her that her case complied with the overriding principle in family law: ‘the best interest of the child’ (she didn’t think it did). To me, it seems more to be in the ‘best interest of the mother’.

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