What better way to bring summer to a close than with a sequel? Works for Hollywood. A long time ago I wrote the first post with this title and I’ve written about nature at other times, too. But the idea of a natural order of things plays such a strong role in this area that I think it is worth revisiting.
Here’s what I think is at work: It seems to me that for many people there is an assumption that there is a natural order to things that sets a default. The default requires no justification–it just is that way. However, any change from the default must be justified. In particular, what you see here a lot is the argument that the people who contribute DNA to the creation of a child are “naturally” the child’s parent. Thus, there’s no need to explain why this is a good system to adopt. However, any change from that–recognizing people who do not have DNA links–must be justified.
I think that argument is fundamentally flawed in several important ways. This is not because I am anti-science. I understand that DNA from two people is indeed required to create a child. I accept this as a scientific principle. But the topic here isn’t the science of human reproduction (though I do occasionally wander into that area). My topic is law, which is to say, legal rules.
Failing to appreciate the difference between science and law is, in my view, the most fundamental error in the argument I’ve noted above. Legal rules are constructed by people. They are not like gravity or biology or other scientific matters. I accept that scientific principles are just out there, waiting to be discovered. I don’t think law is like that. Law is created by humans.
You can start with your scientific principles about reproduction and I think we’ll all agree. There are two people who have that genetic link. My question is what legal meaning do we give that link? And (perhaps this is the most crucial point) there is no default answer. Instead, there are a range of possible answers. All of them need to be considered. Any choice among them must be explained and justified. Thus, the position that the people who provided the DNA should automatically be considered legal parents is one that has to be considered, explain and justified. If you want to pick that option, you need to tell me why it is a good idea to do so.
In my experience, those who propose DNA as the defining aspect of legal parentage usually skip the justification step–and I think that’s because it doesn’t seem necessary to them. For them it is the default and therefore doesn’t require justification. If they do offer justification it’s usually something akin to “because that’s the way it is” which isn’t really a justification in my book. It’s just restating the assumption. Conversations tend to break down here because we are working on such different frameworks.
The idea that law isn’t socially constructed but rather just exists out there–including the specific part that there are people who are just automatically and by default “parents”–is sometimes called “natural law” perspective. It’s a legitimate perspective–I don’t mean to suggest that it is not. And I will confess that there is much in natural law that I find appealing. (There are some things I think are just wrong–unjustified killing perhaps–and that’s sort of a natural law thing to say.) Here’s the tricky bit, though. If natural law is just out there, where did it come from?
There’s an easy answer for some people–God. Sometimes you see this explicitly. (I’m thinking here about arguments against access to marriage for same-sex couples that talk about how God created men and women and decreed how reproduction happens–“complementarity” is a word that is used.) Sometimes I think it is in the background. If this answer works for you, then I think you’re done. But it doesn’t satisfy me–for reasons which I won’t go into here.
If not God then where does natural law come from? I guess you can say “nature”–the same place that laws like gravity and entropy come from. But this, too, seems unsatisfactory to me. After all, gravity is a universal law–it appears to operate over time and space. Rules about parentage aren’t and don’t. Nor do they operate across species. Some animals care for their genetically related young but many do not, or seem largely indifferent to the genetics.
Often as I’m reading comments here–and obviously I’m thinking of the comments of those who disagree with me–I try to figure out where the main points of disagreement are. I think about the underlying assumptions of the authors and about the frameworks in which they operate. Much of the time the key difference seems to come back to this natural law question. I figured it was worth coming back to to set it out on its own again.