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.