About That “I’m Married, Too” Argument

I’m about to head out for travel but will try to put something quick up to follow on the last post.   (If you go read that first it will help here.)  Neil offered a novel argument in trying to avoid the effect of the marital presumption.    Remember that some argue that the marital presumption is valuable because it ensures the child is raised in an intact marital family if there is one willing to raise the child?  Well, Neil pointed out that he was married and had an intact family, so why not let him raise the child instead of Mary and her husband?   (Or maybe the child could be raised in two intact marital families–which must be better than just one?)

Now on one level I think this takes amazing chutzpah.  Here’s a guy who has had an affair with a married woman that resulted in the birth of a child and he’s asking for special treatment because he’s married, too.   I know I am quite old-fashioned here, but the fact that Neil is married does not improve my opinions his actions here.

But though I do think it is nervy, it actually does make a certain amount of sense to me.  But it seems to me that his argument really feeds into an argument I don’t think he made (or at least, the court doesn’t say he made it.)  That’s a sex discrimination argument.

Think about it this way:   Neil has the same genetic relationship to the child as Mary does.   Both of them are married to other people.   So they are really quite similarly situated.   What’s the rationale for saying Mary gets to be a parent while Neil just has to wait?    Why doesn’t he have exactly the same claim she does and why doesn’t his wife have the same claim that Scott has?   Perhaps there’s another sex discrimination claim there in fact–why is Scott treated more favorably than Neil’s spouse?

What this points up is that the marital presumption is gender-specific.  It doesn’t go both ways–the child Mary gave birth to is not presumed to be the child of Neil’s spouse so she has no status, but Mary’s spouse is presumed to be the father of the child and thus displaces Neil.

I think there’s a simple answer here–but like all simple answers, it raises a ton of questions.   Mary is female, Mary is pregnant, Mary gives birth.  The idea that we would have presumed Neil’s wife is the mother in the face of Mary’s pregnancy and birth seems odd to say the least.   Somehow Mary really is th mother and her role cannot be reassigned.   By contrast we’re familiar with the idea of assigning fatherhood as it suits us.

Uh oh–gotta run.  But there’s some food for thought.

12 responses to “About That “I’m Married, Too” Argument

  1. Honestly giving birth should not give women the ability to interfere with the child’s right to be supported by the two people they originated from. Giving birth, as any adoptive parent knows, is not an indicator that someone is well suited to raising children. If that’s true why on earth should giving birth qualify a woman to decide if other people can be parent’s. Her scope of authority should be limited to herself.

    • It may be that giving birth isn’t a good indicator that you’ll do well taking care of a child, but neither is providing the genetic material. Indeed, I’d say that if anything the genetic material is less useful as an indicator. At least the women who has been pregnant has invested some serious time/energy in the project.

      But beyond that, you should see that your entire comment is predicated on the assumption that there are parents out there for the child to begin with and that the question is whether the woman who gives birth should be able to interfere with their rights. The whole question I want to raise here is who are the parents and how do we know? You have an answer that satisfies you and so that makes all the rest easy. But I want to go to the why questions. Why pick the people with intention over the person with performance? Or why pick the people with genes over the person with performance?

      • Julie, you say: “At least the woman who has been pregnant has invested some serious time/energy in the project”. It is not just a question of time and energy. It takes very little time and energy to pull the trigger of a gun and kill somebody. The reason why people who commit such an act are being punished is not related to the time and energy they spent.

        • I agree it is not solely a matter of investing time and energy and I didn’t mean to suggest that it is. But I do think it is important to note that the woman who is pregnant has necessarily invested a great deal of herself–in an actual literal sense–in the project of having a baby. The intending parents may have an emotional investment and perhaps a material one. But it is also possible that they had a relatively fleeting intent.

  2. ” Here’s a guy who has had an affair with a married woman that resulted in the birth of a child and he’s asking for special treatment because he’s married, too.”

    He’s not asking for special treatment; he’s asking for equal treatment.

    Regarding is “prenatal relationship” I personally don’t place much stock in that, but Julie, I expect that anyone who uses prenatal intent as a criteria in ART cases (as has occured on many cases in this blog) should respect this man’s intent equally.

    • I meant he is asking for treatment different from and better than that which would be afforded an unmarried man who had an affair with a married woman, and I think this is an accurate statement of his legal position. In other words, he is comparing himself to an unmarried man who has an affair with a married woman, not to the woman who is party to the affair. Sorry if I was not clear about that. There is indeed the other point of comparison–the treatment of the man involved vs. the treatment of the woman. He didn’t raise that as a matter of sex discrimination as far as I can tell. I find that, too, interesting.

      On the intention point: When people talk about intending parents (mostly in surrogacy) and give them credit for itention, part of the rational for that is that the pregnancy would not have occured but for the intentions of those people. This is a bit different–I doubt the pregnancy was intentional, but certainly it was the result of sex. Thus it might well have occured with or without intention and he is not a traditional intentional parent. That’s not to say that there isn’t an argument for counting his behavior after conception, but only to draw a distinction between those generally considered intended parents and people in his position.

      • I find that difference truly forced. People know that sex is a reproductive act. And why exactly should intent 2 minutes before conception matter more than 2 minutes after it anyway?
        (Because no one makes money on it????)

        • That’s certainly a fair question. If you go back to the case I wrote about over the summer–the one with the surrogates who conceived on spec–https://julieshapiro.wordpress.com/2011/08/12/take-two-more-about-the-la-baby-selling-operation/ the order point was very important there, too. These women got pregnant before there were intended parents instead of after and that changes everything.

          I don’t say that because I think this all makes great sense but rather to affirm that you’ve hit on something really important and perhaps odd. Why does it matter so much. And if it doesn’t make sense, what would make more sense?

          Part of what might explain this is we have a pretty clear (and deeply embedded) understanding of adoption. Adoption is what happens when you get pregnant first and then find some intended parents. Adoption cannot be completed before the child is born. So the ART industry didn’t want that model and needed a line to draw to justify a different set of rules. And conception is where the line is drawn. If you don’t want that line, what do you do? Does adoption become like surrogacy or surrogacy like adoption?

  3. In a world with DNA testing the only purpose of the “marital presumption” would be to make sure that the child grows up in a stable married family. Assuming such a modern interpretation of the marital presumption, what if a married man fathered a child with a woman (other than his wife) who was single? Obviously the marital presumption would say that his wife would be the presumed mother of the child and they should get custody of the child.

    • And Julie comes back with pregnancy makes a mother not genetics….I’ve whistled this tune before

    • This is a hypothetical I love to consider, and of cousre the answer is that we do not consider the wife to be the legal mother. I think what that shows is that we are far more willing to assign fatherhood in ways that suit our grand purposes than we are motherhood. You might say that we act like motherhood is “real’ and so cannot be assigned as we like while fatherhood is not so very real. What this might reveal is that we think about motherhood and fatherhood quite differently.

      I wouldn’t quite agree with your first statement. In some states–CA, for instance–it might be more accurate to say that the purpose of the maritial presumption is to protect marital families from incursions by others as long as it is an intact marital family. Thus the marital family can close ranks and exclude the outside man. We also talk about the child being raised in that intact marital family, but there’s more than that going on, I think. (And it just doesn’t apply to motehrs the same way–see the above paragraph.)

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