One More Harm–Parental Loss?

[This is really picking up on yesterday’s post so if you are interested, it will be better if you start there.]  I’m trying to think through the issues around abolishing anonymity for gamete providers.   Yesterday I offered three possible harms that anonymity might create.   I called them concealment, health and identity harms.

Now there is one more that I want to put out there, and this one is the hardest for me to articulate.  It’s also one about which I think there really is disagreement, even within the activist donor-conceived community.  (I trust that someone will correct me if that last statement is incorrect.)

Some assert that the gamete provider–and I’m focusing on men who provide sperm–is a true parent of the child.   What I mean is that I think some people assert that this person must be allowed or even required to actually play a role as a parent of the child–and here I mean “parent” in the broad social sense.

I am fairly confident that not all the donor-conceived take this view.  For instance, as I understand it, Olivia Pratten, who instituted a ground-breaking lawsuit in Canada, does not contend that the unknown man who provided sperm is her true father or should have raised her.

But I also think that some people do take this view.   IAgain, someone correct me if I am wrong?)   I think it’s a form of something you might call genetic essentialism–the idea that genetics is essential to who we are and what we become and so it makes us a parent to a child in the social as well as the genetic sense.  If you do take this view then using an anonymous sperm provider creates another harm in addition to the ones identified above.  I think I will call it the parental loss harm.

For those who see this harm arising from the use of third-party sperm, it is a very serious harm–and that’s really not surprising.   Even if we don’t agree on who is and is not a parent, we probably all agree that losing a parent is a major harm to a child.

At this point you might wonder about why I’m taking all this time to try to separately categorize the harms as I’ve just done.   I wonder myself, especially as I sometimes think that my parental loss harm is really just a variant of the identity harm I laid out yesterday.   So let me say a word about why it is worth the time to try and lay out the harms as I’ve done.

Ultimately one might want to figure out how to eliminate these harms, or at least reduce them and I think the different harms might suggest different solutions.    For instance, the concealment harm can be eliminated if people do not conceal their child’s origin from them–if people tell their children they are donor-conceived.   And you can be frank and transparent with your child even if you’ve used an unknown sperm provider.  If your main concern were the concealment harm, then you’d be done.   Of course, this wouldn’t address the other harms–but you’d at least take care of one of them.

It’s this ability to assess various possible solutions that lead me to try to categorize the harms and particularly to try to split out the parental loss harm.  What strikes me is that you could require all donors be identified, that records be maintained, that children have an entitlement to some sort of contact at some specified age and these steps might alleviate the identity harm and the medical harm, but they would not alleviate the parental loss harm.

In fact, it seems like the only thing that would alleviate the parental loss harm is recognizing the sperm provider as a parent and this, I think, has the practical effect of making the use of third-party sperm essentially pointless.  People use third-party sperm to have a child with someone they do not wish to co-parent with–that’s what makes the person a “third-party.”  (Strictly speaking, sometimes the sperm provider is the second party and the user is a single woman, but I’m sticking with my terminology for now.)

If I’ve got this right, then I think it is an important point.   The first three harms–the ones from yesterday (concealment, medical and identity) can all be addressed within a framework that allows the continued use of third-party sperm.   I’m not at all sure that the fourth harm can be addressed in that framework.   That’s a useful insight to have going forward.

 

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94 responses to “One More Harm–Parental Loss?

  1. Providing lawmakers with examples of how people have been harmed by an action and convince them that the action will likely result in the same harm being done to others in the future unless that action is outlawed.

    Well that approach seems rather circuitous and cumbersome to me. The action in question is allowed for some people with offspring but not for others. That means our government has different legal requirements for similarly situated people – that’s bad. So despite the fact that every child has genetic parents some children will have a right to their support while others will not. It results in children not having equal rights. It does not matter if denying them those rights is emotionally scarring or not, its not right. Its not right to have different standards and it does not matter if you can prove that no harm results from it because the harm is resident in the unequal distribution of rights by the government

    Most but not all children will have:
    The right to expect that their birth record can be relied upon as a health record identifying them as the offspring of parents that meet the medical definition of the word parent by having reproduced to create them.

    The right to expect that their parents for medical purposes will be recorded as their parents for legal purposes.

    And

    The right to be financially supported by both genetic parents equally unless a formal adoption has been approved by the State.

    And

    The right to expect that they will not be recognized as the legal child of anyone other than their genetic parents without benefit of a court approved formal adoption that confirms nobody was cooerced into or out of their parental or adoptive parental obligations and confirms that no money, goods or services were exchanged in order to facilitate the adoption.

    • What you’re talking about here is what the law calls and equal protection problem. We’re committed–both in the constitution and more generally, I think–to the idea that fairness requires that similar things should be treated similarly. It’s a great idea, but turns out to be a really complicated one to implement for at least two big reasons.

      One is that we don’t always agree on when things are similar. Men and women are a great example–are they alike so that you have to treat them alike? There are some obvious differences as well as many fundamental similarities.

      Two is that our commitment to equal treatment is not boundless. Sometimes, for a very good reason, you can treat people differently. The classic example (now widely rejected) was the internment of the Japanese Americans in WWII. It was an equal protection violation for sure but was justified on grounds of national security. When there are grounds to justify unequal treatment remains a real question.

      But all of that aside, I’m not really aiming to convince legislators just yet. For the moment my goal is sorting out the thinking around this issue so that people can idenify where they agree/where they disagree and also so that individuals can think about possible solutions.

      • Well I think the law should be the same for men as it is for women except when it would be physically impossible based upon gender differences. For instance it would not be unfair to deny a man pre-natal care offered to every other pregnant woman who earns under a certain amount per year because men do not carry and deliver babies yet. For instance its entirely unreasonable for paternity to be presumed of anyone other than a potent male capable of reproduction; any evidence of a person not being male or not being a potent male should preclude the presumption from existing without anyone being treated unfairly.

        • I would leave out “any evidence of a person not being a potent male” since no such evidence is available without voluntary admission. However, I would include men whose whereabout were known to be elsewehre during the time of conception.

  2. When the law does not require the same thing of all people with offspring, it not only results in unequal legal rights for their offspring it also results in an unequal right of some to be named as legal parent of another persons offspring without having to go through the normal well documented procedure of a formal adoption that protects all parties to the adoption from being the victims of graft or coercion.

    People with offspring are parents for medical scientific reproductive and geneological purposes even if they are never recognized as their offspring’s legal parents. While people without offspring are not the parents of other people’s offspring for medical, scientific, reproductive and geneological purposes even though they may be the legally recognized parents of another person’s offspring. When people with offspring are not held to the same set of obligations people without offspring get named as parents on the child’s long form birth certificate which is suppose to be an accurate record of the child’s health as well as his maternal and paternal medical histories. Putting the names of non-biological legal parents that do not meet the medical definition of the word parent on a medical record means the government cannot rely on the accuracy of national birth statistics and nobody will be able to rely on the outcomes of medical studies based on those statistics.

    If the state certificate really is just for identification of people that meet that legal definition of parent, fine, but the federal certificate is a medical record used for medical research and there is no point in documenting the name of a legal parent who does not meet the medical definition of the word parent.

    I’m trying to show that we need to think in terms of broad policy changes that aknowledge the ways in which children of men that donate sperm are similar to children of other men so that we understand if they are not being treated equally to other children. Anonymity of a genetic parent outside of formal adoption is considered abandonment – that is any attempt to skirt legal recognition as a child’s parent in order to avoid parental support obligations is something people are not legally allowed to do but for some reason the law makes an exception for people with offspring so long as a doctor assisted them in creating their offspring. How is that fair to their offspring? They have no control over that criteria that cost them the financial support of one of their parents. Why does the law think its acceptable for certain children not to be supported by genetic parents while other children have a legally protected right to support from their genetic parents? Nobody has ever raised the issue of entitlement to support when asking for help finding their families this particular loss of equal rights is not on the radar of people looking for their family members ever, I don’t think that they feel the least bit harmed by the fact that they have been denied the right to expect financial support from parents who have not relinquished them in a court approved adoption. So this aspect has not really harmed anyone I know on an emotional level, but it does not matter if they don’t feel hurt by their lack of equal rights. The fact that they don’t mind being treated like second class citizens is not justification to continue the practice once we are aware of it. I think there must be some duty to correct parts of the law that unfairly deny people the liberties that other people are enjoying.

    We only need to prove the one big fat harm related to obtaining equal rights for all children born.

    • I think you can guess what I’m going to say. I would suggest that not all people with offspring are similarly situated and so there is no obligation to treat them the same in the first place. Some have existing social relationships with their children and some do not. Some always intended to have those relationships and some never did. Some are men and some are women. Each of these differences might be important and hence might justify a deviation from our commitment to equal treatment.

      What’s happening, I think, is that we disagree about the level of generality at which we define our categories. The level you choose matters. You could say everyone in the US should be treated the same but someone else will say we should distinguish between citizens and non-citizens and yet another person will say we should distinguish between those legally present and those not legally present. There’s no abstract right answer. It’s a choice.

      As you suggest, you can select different categories for different purposes, too. So for example, for giving consent for a child to go on a field trip, all legal parents should be treated the same, no matter how they got to be legal parents. But when a doctor records family medical history, she or he should probably treat legal parents who are parents by virtue of adoption differently from legal parents who are parents by virture of genetic relationship. (I hesitate to say this, because this isn’t categorizing for legal purposes, but it does make the point.) Anytime a person makes a choice about the level at which they define their categories it is open to question and should be justified.

      • Did you just agree that parents for medical record purposes would be different than parents of legal record when they are not one and the same? Sounded like it.

  3. Hi, Julie—

    I have been following your blog and the thoughtful comments it inspires with interest.

    My wife and I are in a situation where I was unable to carry a child due to a chronic illness and she was unable to conceive due to poor ovarian response. We underwent an IVF procedure whereby she carried my eggs. She gave birth to an amazing baby girl, our daughter, who now is a toddler. I would argue this may be uncommon but less and less so. For example, “Iron Chef” Cat Cora and her partner very publicly underwent a similar procedure to conceive their children. A search for “Cat Cora & Lesbian and IVF” returns more than 14,000 Google hits. I offer our situation to highlight that, in many states, including our home state, the legislature outlaws both gestational surrogacy and same-sex (unmarried partner) adoption. This in essence provides that the “birth relationship” my wife established with our child likely trumps any “genetic relationship” I might claim. (Or, because two women cannot legally co-parent, if I “win” based on genetics, she “loses” based on birth.). Because our daughter was conceived via an anonymous sperm donor, birth certificates are not afforded FF&C, and we live in a state that does not acknowledge same-sex marriages, our daughter currently does not have any legal basis via which to access her genetic/medical information or to claim either of her genetic parents as legal parents. Equally substantially, aside from beneficiary designations, she may not be entitled to federal economic benefits (VA, social security) stemming from me or the sperm donor. In my experience I, honestly, do not think ours is an outlier situation. In all of the conversations taking place here, I think it is essential to acknowledge the heteronormative prejudices that underlie legislative decisionmaking regarding both same-sex adoption and the status of children conceived via ART. These issues are just beginning to be litigated. See In re adoption of Sebastian, 25 Misc. 3d. 567 (2009). It is also important to recognize the intentionally discriminatory effects of legislation on parents and children. If state governments are actively overriding whatever harms may exist in cases of same-sex parenting because of the vital state interest in preserving heterosexual parenting or “moral” values, it seems to place an unfair burden on parents residing in those states to anticipate the harms implicit in receiving and utilizing anonymous gametes.

    As a note, as I am currently teaching constitutional law, it strikes me that each of these claims to harm you identify is a generalized grievance, in that it is unlikely (and unfortunate) that one person would feel all of these losses so acutely as to generate standing sufficient to make a legal claim. If such person did exist, I would advocate the court’s granting his or her access to the information, but on the ground that access to genetic information–or even identity information–substantially impacts his or her own Constitutionally-guaranteed reproductive freedom.

    • I think you are correct that what you all did is not that uncommon (although it isn’t exactly run of the mill, either.) There are a host of problems women on this route sometimes encounter. For example, clinics operating with standard forms might treat the egg provider as a “donor” (using that word in the clinic’s sense) and hence, the forms state that the donor isn’t a parent. Whether this is true as a statement of law is one thing, but it is certainly not true of the intent of the people involved. Yet some people don’t always read all the forms that carefully.

      In terms of actual court cases, Pratten (from BC, and it’s been discussed here so you can search the blog) really does raise the equal protection question clearly. The case is certified as a class action, too. It’s on appeal.

    • You’ve got a whole range of questions here at least some of which I hope to get to, but one at a time and down the road. There are also a lot of possible solutions to the anonymity issue, not all of which have the same impact. For instance, what the UK now requires (and Pratten, too, I believe) is that information be available when the child turns 18 or 19 or 21. Now that’s quite different from saying that the child (as a child) gets to know who the donor is, or to have access to siblings. Is it a satisfactory solution? That might depend on the harms you identify at the outset (which is why I started there).

      As to your starting point–you make an assertion that there is a particular right. But why? Where does it come from? How do we know? Surely not everyone agrees that the right you identify exists, so how to you argue in favor of that right? Practically speaking women can have sex with unknown men and then you’ve got an anonymous sperm provider–is that where the “right” comes from?

  4. I agree Marilyn, there is enourmous variety and we can not guage how much suffering will result. That does not mean government should manipulate laws and collude in unequal protection, to benefit a small class of people (ART and its sellers and users)

    • The next post I write (but it may not be today) will be about the other side of the equation–the harms on the prospective parents sides. I think it’s a little surprising that people are solicitous of the genuinely expressed and felt harms of the donor-conceived and entirely willing to shrug off the harms of those who might need to use ART to have kids. Isn’t that a bit of a double standard? In any event, that’s the next post (so think of this as a coming attraction.)

      To respond directly though, I’ll agree that there is enormous variety of experience. Not everyone feels all these harms and some feel none of them. But it’s still useful to think about the different types of harms that might be experienced and what we would have to do to alleviate them. Somewhere down the road in this analysis you’d come to thinks like balancing costs/benefits which might in turn mean figuring out how common various things are. I’m just not that far along yet.

      • Ahh but Julie nobody NEEDs to use ART. And I say this as a middle aged single woman who suffers very much from my own childlessness.
        But thats besides the point- outlawing ART is not whats on the table . Most forms of ART will continue to be permitted whether you consider it a need or a want. The quesiton here is why are they entitled to Privieleged status. that infringes on the rights of others.,

        • Perhaps I am not understanding you and maybe my next post will be better if I can understand you. There are people who experience real pain because they wish to have children and cannot do so. Some can have children through the use of third-party gametes or IVF or other ART. Thus, ART alleviates their pain. Their pain is just as real (it seems to me) as the pain of those who as donor-conceived feel they are missing a piece, etc. Perhaps this doesn’t mean the “need” ART, but is there anything wrong with recognizing their pain and then noting that we have the ability to alleviate it?

          I know we’re not talking outlawing ART. I’m just trying to catalog the harms we should be alert to before I move along to another stage of analysis. Brick by brick and all that.

  5. I believe a woman has the right to have a child from an anonymous man if she chooses to. The anonymous donor could come from a bank, or maybe a one night stand. Ending donor anonymity infringes on the reproductive rights of women.

    Ending anonymity hurts families and destroys life because it reduces the donor pool. It also discourages potentially excellent donors from donating.

    A lawsuit to end anonymity will invariably happen in the USA. Since Canada now only has ONE sperm bank, because dozens of them closed down after they over-regulated the industry, Canadians are using American sperm in record numbers, most of it anonymous.

    Donor siblings are finding each other on the DSR. Some are finding their fathers there too. That is good enough.

    Where does this argument stop? Should we end sibling anonymity too? Should the donor have the right to know the whereabouts of every child they have fathered from the bank as well? Will women be banned from having one night stands?

    Right now there are lots of choices. Donors can be anonymous or not, women can choose anonymous sperm or not. Donor siblings can connect with each other or not.

    First they will end anonymity. Then they will impose a hard cap on individual donors. And then the government will create a genealogical registry to enforce these laws. This is the wrong path to take. It will cripple the industry, destroy life, harm families, and infringe on our reproductive rights.

    • I believe a woman has the right to have a child from an anonymous man if she chooses to.

      Absolutely a woman can wind up giving birth to a child and be unable to locate the father it happens all the time only the state will help the mother track down and test every man she had sex with in order to test them to find the father put his name on the certificate and order him to pay support because the child is entitled to recieve it – right? That child does deserve have a right to support from both of his parents correct? Courts have ruled that its not for mothers to bargain away that right privately waiving the need for child support. I know that one daughter successfully won a case and her father was ordered to pay back support to her despite having a private agreement with the mother that she did not want his money, So when the law catches up with the guy and the establish that he is the father not only does he have to pay from that point forward he has to pay from that point backward, even if he had no idea the child existed because the child is owed his support. Its harsh but its the way it is for the rest of the population which means the rest of the kids in this country will be legally supported in their right to receive support from both parents while children of anonymous donors do not have that same legal protection. In the rest of society trying to hide from that obligation to support is called neglect or abandonment and its a crime and helping someone commit a crime is also a crime and children in the rest of society are protected by the state when neglected or abandoned by one of their parents without benefit of a court approved adoption.

      Anonymity is really sanctioned abandonment

      • Maryln does it again! The state refusing to legally enforce donor anonymity does nothing to infring on anyone’s reproductive rights! A woman has the right to reproduce with any man that agrees to reproduce with her. Are you saying that the men won’t want to reproduce, well in that case thats their right too, after all no one has the right to force anyone else to reproduce with them.

        • At this point in time, if a woman buys sperm from a mainstream sperm bank, she has to sign a contract holding her legally liable not to attempt to find out the donors identity. My opinion is that piece of paper should be considered legally worthless.

          • But, Marilynn, I have to differ with you on back child support. I don’t believe a father should be held liable for years and years of back child support. If some man is struggling, then he’d never be able to get back on his feet and that won’t do much good to the child. You can be sure this dissuades a fair number of fathers from showing their faces, even though they want to make up for past misdeeds, they simply can’t for fear of being ruined.

            • I’m not necessarily agreeing that it is fair. In fact I only recently changed my mind from thinking he should not be obligated to pay support from when he was not aware he had a child. Cause then I thought well then who was responsible for his share of support during that time? Like who but him and the mom would be ethically on the hook for a child that is not theirs that they have not adopted? Anybody? I mean the State may cover for him until he knows but….was it really their burden? Well that’s a tough call. He pays taxes that go into a fund that provides citizens with an infrastructure to support the population and provide for emergency services like caring for his child if he is unable or unaware. I mean we don’t have to pay the fire department back for putting out the fire on our house, should we have to pay back the State/Fed’s for taking care of our kids until we are able? I don’t know but currently a guy can have to pay back child support from birth forward prior to the establishment of paternity. Which ROCKS for proving this point:

              A man is the parent of his offspring based soley on genetics and he owes support because of that – he does not become a parent because paternity was established, the state just could not prove he was the father until that point. So the duty to provide support precedes the establishment of paternity. A woman that could but wont establish paternity by identifying the father of a child is then preventing her child from obtaining support from both parents even if the child only has one legal parent.

            • m below is me Kisarita and Julie i just messed up

            • I wrote a killer reply but its awaiting Julies moderation because i messed up and did not type my name right. I hope it comes through K

          • I’ve never seen the sort of contract you refer to (please point to one on the web it you can?) but I’m inclined to think that it is an unenforcable agreement. This may not be quite the same as worthless because some people might feel bound to do what they’ve agreed to do, of course. Honor and all that. But probably it does mean legally worthless. After all, what remedy could a court order?

            • Julie – I have endless links but this is an example of that kind of clause

              http://www.alabamafertility.com/Donor_Oocyte_Program_Pkt12_06.pdf
              4. Confidentiality
              …In the case of anonymous egg donation, both husband and wife understand and agree not to seek the identify of the donor(s) and that the oocyte donor has been advised and has agreed not to seek the identity of the oocyte recipient(s).

              —————————–
              here goes another one but it wont let me clip text
              http://books.google.com/books?id=t0dMeFz-XWIC&pg=PA158&lpg=PA158&dq=recipient+agrees+not+to+seek+identity+of+donor&source=bl&ots=jKTffnqMSC&sig=g0vmymzGDutDgOnIOGpTmzAI_Xo&hl=en&ei=uRu3Tr3nJY_YiALIpvxr&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCAQ6AEwAA#v=onepage&q=recipient%20agrees%20not%20to%20seek%20identity%20of%20donor&f=false

              • Thanks.

                I wonder how common these provisions are? (I’m not sure what I am supposed to look at in the second–the insemination agreement is for a known donor and so is quite different.) I really do not think they can be enforced, but it’s an expression of what the parties have in mind at the time. (That’s assuming everyone actually reads it and thinks about it, I suppose.)

                • Some people collect stamps, I collect links to gamete and embryo contracts and informed consent agreements for all the various acts. Really the promise of the recipient not to seek the gamete provider’s identity is pretty rare, it’s the gamete provider that ALWAYS agrees never to seek the recipient’s identity or their children’s identity even in those ones where they may be contacted 18+ years after their offspring are born. The agreements always say that giving up contact with their offspring is a condition of giving up their gametes, which stands in contrast to donating gametes for research for instance where giving up the gamete does not mean your giving up the children born of those gametes. Its very sad but when one reads the agreements its quite clear that these people are giving up their offspring which they don’t have to do; its a choice to never know what becomes of them.

                  Its interesting that from the gamete donor’s side of the agreement nobody promises them anonymity really. The agreements are laced with disclaimers about how the law may not support the agreements and they may be required to give the children up for adoption to secure the recipients parental rights or how accidents happen at the clinic or how the law can change or how the child might need medical information etc. The gamete donor’s agreement requires performance of duties for at least 18 years after the birth of their offspring if not longer deep into the time when they are biological parents not just gamete donors. Lots of contracts pay people now contingent upon performance of some duty in the event X occurs they will do Y. So in the event a child is born they will not seek to establish paternity or dispute the paternity of the recipients husband for instance. These are heavily loaded and agreements and I don’t know how they could really be enforced. Really the DSR is evidence of the fact that many providers are looking, reaching out to find their offspring who may have found out their provider ID #’s. These contracts have no penalties for nonperformance. They only hold water so long as the parties honor them like you said.

                • check pacific reproduction. I believe they have a form of sort that states that the recipient will be liable for any embarrassment coming to the donor. That boils my blood!

                  • I really had no idea these clauses were common in the contracts. I do wonder if anyone has ever tried to enforce any of them given the rapidly rising number of people who do succcessfully locate gamete providers and/or offspring. I’m inclined to think that the language has no real effect. And I really do wonder if people even realize it is there. Has anyone seen clauses that bar people from going to Donor Sibling Registry? Just curious.

  6. Wally ending anonymity does not infringe on a woman’s reproductive rights. Nobody is stopping her from reproducing. Are you suggesting that mother’s should have the right to waive their child’s right to paternal support? That would be different than a right to reproduce.

    • “Wally ending anonymity does not infringe on a woman’s reproductive rights.”

      There are a lot of donors who will only donate anonymously. So it infringes on her right to reproduce with these anonymous-only donors.

      “mother’s should have the right to waive their child’s right to paternal support?”

      from the biological father, yes.

      • Wally
        Can I ask you some questions to see if you thought through the various implications of that opinion? If you have then cool I just want you to walk me through the thought process.

        There are few ways in which children are equally situated at birth; some are rich and some are poor, some sick some healthy, some wanted and others unwanted. But the law does strive to afford all children equal rights at birth at least to the extent that they are all equally situated to one another.

        Children are equal in that they were all born on earth in an area claimed by some official country. Children are automatically natural born citizens of whatever country they were born in and as citizens of that country and be entitled to whatever rights are afforded to citizens in that country and will have the obligations of other citizens of that country.

        I’m gonna start off topic here to keep it neutral. Can you think of any justification for the government refusing to acknowledge a child as a natural born citizen if he was born on American soil? I mean if the majority of other children born on american soil are considered American citizens but they were born on American soil to someone who was a contentious objector during the 60’s and left for Canada to avoid the draft or something like that. Something the child has no control over at all. So every other child bam, out the gate has a country willing to acknowledge them as a citizen but not for a small group of kids. I mean every child is entitled to an education and protection from having to work to bring money into the house while they are children. Should parents be able to opt out of that and keep their kid home (without homeschooling) because they are the parent and they get to choose? The child won’t always be under his or her parent’s control at some point they’ll need to go out into the world and won’t have an education to get a job, for instance. Should a parent be able to take and live off of a child’s earnings from work that they do in television or movies because they are the parent and can decide whats best for the child and determine how much of the amount owed them they really need? I mean parents are there to help children get what they deserve not to thwart their effort to receive it right?

        • I know this is tangential but in many countries children are not citizens just because they are born in that country. It is true in the US (at least for now, though there are those who would change our Constitution to get a different result.) There are also a variety of rules for children born abroad to people who are citizens of the US. And there are children who end up being citizens of no country at all.

          • Its not tangential, its intriguing. I’ll have to look into that. I thought children arrive unequal in almost every other way than they most definitely are the offspring of the parents they originated from (there is no way around that one scientifically yet) and would definitely be citizens of the country of birth. Well at least we know for sure that all children were born in some country, what arises from that is not as clear as I’d thought.

            • I think the latin term is jus soli and i think it might refer to soil–being born on the soil of a country. I actually don’t think it is the majority rule though it is the US rule (for now). FWIW.

  7. Francine I think that your child should have the absolute right to records that identify you and the donor and I mean by name, as the parents for all medical intents and purposes because that is what. I would think that those names belong on the federal long form certificate with all of your health history and the the history of her paternal parent.

    Now the State Certificate Julie has me convinced now is just to document whoever the legal parents are and I suppose that you want that to be you and your partner and maybe we could just have States put a disclaimer on every birth certificate that said State certificates name the parents for legal purposes only please order a copy of your federal certificate for the names of your parents for all medical purposes. The federal could say please order your state certificate for legal parentage purposes.

    How you go about achieving legal parentage should be as easy as adoption. Sorry you have to deal with that. It is not fair. I hope that changes soon

    —-

    Maybe the federal government could just trump state law and release people’s long form certificates regardless of any sealed record laws in the various states because every person should have access to a birth record that contains medically accurate information on parentage.

  8. Wally – taking a sentence perhaps out of context…”Ending donor anonymity infringes on the reproductive rights of women.” Something a prior commentor touched on also as a “constitutional right to reproduce”…

    Yet no where in this dialogue has been a discussion on something that should be at the very absolute core – the rights of the child and acting in the child’s best interest. Instead it is all about “me”…

    Have any of you thought about the end product you deem to be your right to produce? Really thought about the child who will become an adult and have adult views on your choices? Have any of you taken the time to discuss this in-depth with anonymous donor conceived individuals? Without your defensive arguments, just listened and tried to walk a mile in their shoes? Then thought about it, searched your soul about whether anonymous really is a path you think should happen? That works with your moral compass? That will be acceptable to you when your child is being hurt by your choices? Whether that happens when they are ten of forty – how will you justify that it was the right thing? Tell them to “get over it”, “be grateful they are alive”, “that there are worse things on earth”? Could you also not apply those statements of rebuttal to yourself – before you make the choice to go the anonymous route?

  9. Wally if a man refrains from reproducing with a woman because he does not wish to be a father, that does not infringe on her rights to reproduce. This is no different that a wife who uses birth contorl because she does not want to conceive, do you think that infringes on here husbands rights to reproduce????? Whats the difference?
    Anyone who wants to reproduce is perfectly free to fin someone who wants to reproduce and reproduce with them. The govenment does not need to create a legal fiction in denial of reality to enforce someone’s rights.

    • I think gametes should be traded freely with consent.

      • Right, and so should poeple have a right to have sex freely with consent. But the government won’t enforce an anonymity contract with one, so why shoul dit with the other?

        • I think the law should be changed so the government will enforce an anonymity/no support contract in both cases, within reason.

          The way I see it, this helps women a lot, because with such a contract, they’ll have access to the genes of men they could not attract normally.

          • You are not serious. Very good you had me going. I’ll stop preaching to the choir then. I’m pretty gullible. Embarrassed

            • You want it so a woman must attract a man, and either get him to marry her, or accidentally get her pregnant so he will have to pay child support. That’s a lot to ask.

              • my god! horrors! to actually ask men to have a relationship with their own children, I mean who could one even suggest something so outlandish. these poor, put upon men. Exctly, thats just too much to ask …
                (Why do I suspect that it is not the benefit of WOMEN that you are so concerned for? )

              • No. I expect that the law will hold all people with offspring as being responsible for their offspring and will equally obligate them in the support and care of their offspring so that all offspring will have a right to expect the same thing of the people that created them.

                The law has no business in dictating how someone becomes a person with offspring. The law should limit its involvement to making sure those that do have offspring take care of them.

                No I don’t want it so that women have to do anything in particular to get pregnant, why would anyone care about that? Once they have children then as a society we want the law to say that the child has a right to both parents support. Who cares how they became biological parents? Why would that make a difference. ?

                relinquishing their parental obligations in court for the protection of children from being trafficked and to ensure that parents are not paid or otherwise coerced into relinquishing their obligations and to ensure that adoptive parents have not been coerced into accepting parental obligations against their better judgement, etc.

        • kisarita! yup

      • how can a consumer be absolutely certain that the gamete they receive was obtained from a person that consented if they don’t have a copy of that person’s signed consent? In fact even if they do have a copy of a signed consent form how can a consumer be sure that the gamete received really came from that person who gave consent and not say, another patient at the clinic who had not given consent for others to keep children created from their gametes? Like at UC Irvine the doctors can obtain gametes at no cost to the clinic by stealing them from fertile patients and simply marketing them as having come from the donors in their profile books. This greatly improves profit for the clinic and there is no recourse for the patients to get custody of those children. The identity of the customers is anonymous. The Mexican women in Juarez being killed fro their ovaries and other organs did not sign consent forms but organ traders are fencing those women’s parts in El Paso and I’m sure their gametes are being marketed as having come from their other donors. If you don’t cross check donor DNA with the gamete before implanting it and if the patient does not have that persons signed consent it should not happen. Should people have the right to resell gametes if they don’t use them all up? Should the gamete provider have to ok that?

        • How can consumers be certain that the clinic actually went through the IVF process with the egg and sperm of their choice? Be it their own eggs and sperm, someone elses, or a combination of both – how can they be certain they are not having an embryo implanted that some couple donated for research or that some couple did not pay storage fees on. It would save the clinic a ton of money and save a perfectly good embryo from being destroyed. How does the customer really know and what should be done to make the process less about blind trust because there are plenty of instances where clinics have proven to be corrupt just like that. It may not be standard operating procedure but it does certainly go on and go on unchecked.

  10. Julie, I am not sure that you are right about Olivia Pratten. She has said that ending donor anonymity is only a first step in the fight for equal rights for donor children. As far as I understood from an interview with her, she basically wants to end the practice of donor insemination.

    You use the expression “genetic essentialism”. To me this sounds like trying to turn something fairly simple, namely taking responsibility for your own reproduction, into a matter of philosophical speculation.

    • I certainly do not mean to misrepresent Pratten’s position but I don’t think I’ve seen the interview you’re referring to. What I have seen suggests to me that her primary interests really are about access to the information. But let’s see what I (or anyone else) can find out. In the meantime, perhaps we can agree that some people seek access to information rather than an end to the use of third-party gametes?

      About genetic essentialism–I don’t mean to go all jargony here, but I don’t think this is a simple point and I wanted to give it a label. For some, genetics is defining of relationships. Thus, for each child, there is one true mother and one true father–the people who provided the DNA. But many people would not agree with this view–they’d say the parents of a child aer defined by a host of other factors or at least a host of additional factors. I chose “genetic essentialism” to define that first view because what is essential and defining is the genetics.

      I don’t know if this makes it a matter of philosophical speculation or not, but it is certainly an important point about which people disagree and I think it is important to be as clear as possible about where the disagreements lie.

      • Its not genetic essentialism its an obligation to the human beings you create its responsibility for the lives you bring into the world. The opposite of which is irresponsibility, negligence, abandonment – outside of formal adoption which at least provides for some basic protection for the child and parties involved.

        • I know we’ve been round and round this before, Marilyn, so I probably do not need to say this for your benefit. But in case others have read down this far:

          Maybe you would call it something else–perhaps you do not like the term I have chosen (that is to say “genetic essentialism”) but I want some term for the set of beliefs that just because you are genetically related to a child you are a parent of the child. This is not a univerally accepted proposition and is an important point and so in order to talk about it, I’d like a name for it. It seems to me that genetic essentialism is fairly descriptive, but I’m open to considering other suggestions.

          This is, by the way, different from saying you have responsiblity for what you do, I think. You could say a man is responsible for offspring created with his sperm and then you could say his fulfills his responsibility by providing sperm to a bank that will in turn provide it to those who wish to raise children. This might not be something you could say of a man responsible for a pregnancy that results from a one-night stand.

  11. Why put so many preconditions on creating life? Obviously a child prefers to live, even without a biological father. If the argument is that they won’t receive proper support, well i think that’s weak argument. Each one is born into a different situation.

    Children who don’t exist cannot defend themselves. So it is easy to pass all sorts of regulations which doom them to non existence.

    • “Why put so many preconditions on creating life?”
      I’m not talking about restricting people from reproducing which would be putting preconditions on creating life. Men and women can make babies together however they want even anonymously to one another that is dandy. But being anonymous to their offspring is not a matter of reproductive rights. They already exercised that right or they would not have a shared biological child. Why would these biological parents be treated any differently under the law than the rest of the biological parents who don’t give children up for adoption – for they are not allowed to be anonymous to them and they are not allowed to not support them.

      “Obviously a child prefers to live, even without a biological father.” Obviously children can’t live without being the offspring of parents that include a mother and father of the biologcial kind.

      “If the argument is that they won’t receive proper support, well i think that’s weak argument. Each one is born into a different situation.” Right every child is born to different financial circumstances some have rich parents and some have poor parents, life just is not always fair. But they all have biological parents and the law can require all biological parents to support their children – and it does, with the exception of gamete donors for some stupid reason and that results in that group of children not having the right to expect support from both as other children do. It does not matter if they are rich or poor. And for children whose fathers ditch out and stick the mom with all the work, well that is abandonment and it is a crime and that is the parallell situation to using anonymous gametes. Abandonment

  12. Nobody asks to be born Wally.
    Sure, once we are already here, we have a survival instinct that gives us the desire to live [almost] at all costs. But had we not been created we would have never had that instinct!
    According to your philosophy, people should all have a dozen children and never use birth contorl whetehr they can afford it or not, even if they are a homeless drug addictcuz hey, you are giving live after all.
    But this is all besides the point, since the only people who are creating preconditions for reproduction, are the ones who are drawing up all those anonymity contracts.

    • There’s a tricky question you can ask in this area that I’ve never discussed. It’s the one about whether chlidren conceived via ART are always necessarily better off because absent ART they would never have been conceived at all. This, it seems to me, is what has surfaced here.

      There’s something very tricky about this question, which is part of why I’ve not raised it directly. But perhaps more importantly for me, I’d like to think about what to do going forward–how should we manage ART in the future. It may well be that we have made mistakes in the past–surely we have. And there are good questions about how to fix the mistakes we have made. But when you focus on the future you think about how to organize things so it is the best all around–whatever that ends up meaning. It’s quite hard enough to do that without also trying to answer the existential question.

  13. “some people assert that this person must be allowed or even required to actually play a role as a parent of the child–and here I mean “parent” in the broad social sense…Again, someone correct me if I am wrong?”

    Who has asserted that sperm donors must be allowed or required to play a role as a parent? Sorry, I haven’t read the whole post or the comments yet, but I’ve brought this up before, and I think you are making a strawman here. I think all we say is that the sperm donor is the father, and should be listed as such on the birth certificate. Custody is separate and dealt with on a case by case basis, being a father does not guarantee custody or require custody or even support if you ask me. And furthermore I say that gamete donation and intentional parenthood should not be allowed at all.

    • I said it John and if you get right down to it you are saying it too and that is there are certain obligations to making a baby and being named on a birth certificate so that its an accurate medical record is one thing and then the fact that being the father your suppose to support the child unless you relinquish obligations in court in an adoption. None of that guarantees custody though true enough.

      • “None of that guarantees custody though true enough.”

        Right, so you aren’t saying that “this person must be allowed or even required to actually play a role as a parent of the child.” No one says that. I’m pretty sure Julie was referring to custody, legal parenthood, or at least visitation, not just being named on the BC. If all you mean by “play the role as a parent” means be listed on the birth certificate or have to pay child support that’s different from what Julie was saying we say. I don’t think anyone says fathers are guaranteed parenting rights or even visitation. It’s a case by case basis.

      • Fathers don’t have to relinquish custody, they can also have custody taken away if they are unfit.

      • Hey–I got something right. Thanks.

        • No, I think Marilyn was confused. Let’s see how she answers my response. I still don’t think anyone has said that fathers “must be allowed or even required to actually play a role as a parent of the child.”

          • I think they have to play the roll unless proven unfit. I think for children to be treated equally they need to all be able to rely on their biological parents having to comply with certain laws and if they don’t comply then all children should be protected by the next set of laws taking away their parents rights and assigning them to others.

    • I don’t mean to set this up as a straw man and maybe you are right that no one asserts what I said. Perhaps, too, I was clumsy in my framing. No one can actually make a person perform the role of parent–I do get that. But I do think there are people who would contend that in the ordinary course of things that many would/should be involved in raising the child. (I notice you’ve used the word “father” and I’m not sure what you mean by that. Do you mean anything beyond the progenitor?)

      The question, I suppose, is whether a person has any special status by virtue of being genetically related to the child or whether the person is in the same position vis-a-vis the child as the rest of the world. (The law is currently organized in an all/nothing mode so that either you are a parent and you get all legal rights and obligations or you are not and you get nothing.) And I do think that some people take the position that a man who provides sperm has some special rights/status. I think Marilyn might, but I’m sure she’ll speak up if I’m mistaken.

      This isn’t about custody, nor did I mean to make it sound that way. Many legal parents do not have custody of their children. But many have the right to see their children–and the law operates with a presumption that it is a good thing for a parent and a child to have time together. Also most legal parents have the right to participate in major legal decisions about their kids–even when they do not have custody. And perhaps most importantly, a person recognized as a parent has a right to have various procedures before they lose contact with the child. A non-parent doesn’t.

      The birth certificate is sort of a separate point. We’ve talked about how you might have some sort of pedigree certificate that would show genetic lineage and a different document that would show legal parentage. If you had such a system than clearly the sperm provider belongs on the pedigree certificate. But right now birth certificates aren’t for pedigree (which I know many people think is bad) and do show legal parentage. So when you say you would put him on the birth certificate, you are actually saying he would be a parent.

      • How about this: Even a father who became a father by rape should be listed on the birth certificate as the child’s father, but never gain the privilege of being the child’s “parent” or have custody or visitation or legal parenthood. The child would probably consider his social father to be his father, but should know the true identity of his father too.

        The BC should record the father and mother of the child and should never be changed (unless it was wrong), and we have legal guardian documents for when the father and mother are not the legal parents.

        This reminds me: have you commented on the Justin Bieber statutory rape? A 20 year old was the rapist, he is alleged to have fathered her child when he was 16 (note that we say he “fathered” the kid when he had sex). Assuming the kid is his, does his name go on the BC (I say yes) and does the rapist get custody, visitation, her name on the birth certificate, status of “mother”, and is she or the child entitled to Bieber’s wealth, or can he deny it to his kid and/or her? (I say her name should be on the BC but she should go to jail and not have custody, and the kid should go into foster care unless he wants custody. At least that’s how we’d treat a male rapist).

        • No convicted rapist should ever have the right to sue for paternity. Rapists are violent, dangerous criminals. They are especially dangerous to people they have victimized in the past.

          Statutory rape laws differe from state to state, some are more reasonable than others i believe.

          • Kisarita
            In my opinion the government should concern itself first with accurately recording the identities of the child’s genetic parents and making it clear cut fraud to misreport or allow an error to stand uncorrected. The truth is the truth irregardless of the way it became the truth and, if I were to stay consistent with my statement that all children deserve equal protection under the law – that would be the right to expect the same thing of their genetic parents as all other children, the right to have their identities recorded and the right to their financial support and to be raised by them. Then you move on to the fact that all children have the right to be safe from harm and abuse or potential abuse by either parent and the authorities could strip him of his rights etc and the child would have the right to be adopted in a formal setting. I think we have made too many exceptions to just recording the facts. There is always going to be some extenuating circumstance where someone feels the truth is too horible to document and we should not be judging the impact of the truth we should be documenting it and dealing with reality. The end result would be the same as you want without inaccurate records. My mom has one of those inaccurate records because the truth was just too terrible to record, in fact I have helped lots of people with records altered for their own protection – alleged rape among them. Really it would have been fine to just record the truth and manage the issues nothing good or productive came of fraudulent documents.

            • I think it may be useful to separate the issues out here. There’s a record keeping interest, maybe, in having information about genetic lineage and that can be separated from who will be given rights to control the upbringing of the child.

              • We agree on that. And there already are two different documents. There is a BC for lineage and there are documents to assign legal parenting duties. People who want to just change the BC so they can pretend they are the genetic parents are asking too much. They aren’t the genetic parents, they shouldn’t pretend to be.

              • Oh good grief we agree. How about separate the long form federal as absolute genetic accuracy since it and only it is used for medical research and birth statistics and it can have a disclaimer saying that the names of the parents may not reflect legal parentage refer to state birth certificate and the state bc should state excactly the same in vice versa. Every person should be entitled to their fed cert for health reasons even if it has the names of parents who are otherwise concealed by state laws. F-em, there is no reason for the federal government to hide those people’s identities and they already say that all children deserve parentage for medical reasons in the parentage act, can’t go against that because of some state’s adoption or donor rules.

            • here we go again- mandatory DNA testing. If i became pregnant of rape I would tell my kid what happened but i would NEVER let there be any document associating the rapist with me or my kid. I woul dalso refrain from pressing charges because I woul dnot want the rapist to see me with a big belly and get ideas. If there was any benefit outweighing whatver nebulous benefit the state the staet has in recording peoples geneticsthis is unequivocal. (I happen to believe the state has no business in the first place going after peoples dana asyou already know.)

              • Wow, you’d leave a rapist out there, so he could keep doing it? I think victims of rape ought to report it immediately and be given a morning after pill to prevent pregnancy, whether they want it or not. It’s not fair to a child to be born that way.

                And sure, why not mandatory DNA testing? We can easily verify that the persons listed are the father and mother, and if they aren’t a match, their name should not be on the BC. It should be left blank, marked “UNKNOWN.”

              • K
                Do you believe that women have authority over what their offspring can and cannot know about their father’s and father’s families? Their offspring are only under-age for a while. If you believe women have authority to not identify the father of their children then do you believe that those children are not entitled to support from both parents? Do you believe the state is not entitled to be repaid for having to financially support his child while he languishes in jail for the rest of his natural life – like “that’s ok, don’t you worry about California will pick up your tab?” Is the child for some reason less deserving of her medical history than the rest of the children in the population? Does she not need to know who her siblings and cousins are because she is somehow exempted from the cognitive and physical abnormalities and social stigmas that come from inbreeding?

                Its the exceptions all the freaking exceptions to the truth that are reaping havoc on us. Sunshine ordinances that is what we need.

          • Right, you are agreeing with me, right? What do you think about the rapist’s name on the BC? I think it should reflect the fact of who the father or mother is, regardless of whether they are a good person or not.

            • Yes. Let the truth be recorded.

              Let the truth on the record give rise to action. Let someone petition the court to have the father’s rights taken away because he’s in the state penetentary for 15 years to life for eating the beating heart out of a fluffy white kitten – fine. At least then there is a paper trail of who he is and why he is unfit and that she’s been adopted. If not adopted she should still deserve to inherit through him and everything even if she never meets him because he’s in a straight jacket somewhere.

            • Thats up to the mother. The state does not do mandatory DNA testing.

        • Justin Bieber my daughter’s idol had sex with a 20 year old girl and got her pregnant?

          Go Justin. If its his kid, he should be named father and participate in raising his child. Statutory rape? I’m a bit chauvinistic on the subject of teenage boys being taken advantage of by hot girls between the age of 18 and 30, I just don’t believe they did anything other than thank God the girl both profusely afterwards.

        • Your comment illustrates how confusing our use of the word “father” can make things. You’re suggesting, I think, that even a man who impregnates a woman should be listed on the birth certificate as the child’s father or parent. (Some birth certificates use “parent” instead of father.) Whether I agree depends on what follows from being listed on a birth certificate and given what does follow, I disagree. Right now if I want to get a passport for a child, I produce the birth certificate and both people listed must appear or provide notarized statements. I don’t want to put the rapist in that position, so I say “no” to the birth certificate. You might want to change how birth certificates are used, but that’s another whole project that is discussed elsewhere on the blog.

          If you want to suggest that there should be a record of genetic lineage which is nothing more than a historical note about lineage, that’s easier for me to agree to. But we have no method for doing that right now. I do not see what is gained by describing the rapist as the father of the child, especially if you’re using “father” without a modifier like “genetic.”

          • What happens if the father dies or goes to jail or becomes a violent abuser after he has already been listed on the birth certificate? Does he still approve of passports? I find that hard to believe.

            Have you seen the Bieber coverage? They are using “father” like the medical term it is.

          • Julie
            If a man meets the scientific definition of the word parent of a child because he that child is his offspring and meets the scientific definition of the word father because he is a male person with offspring – he is a parent, a father according to the medical, scientific, reproductive and genealogical definitions of those words.

            It happens frequently that parents, according to the medical, scientific, reproductive and genealogical definitions of those words, are named by default as parents on a child’s birth certificate, even when they have no intention of fulfilling their parental obligations or have been otherwise deemed unfit to fulfill those obligations.

            A court procedure strips them of their parental obligations and assigns them to someone else, temporarily or permanently. The child’s birth certificate is not altered by that transfer of power. Whoever has authority over the child will have paperwork proving guardianship or if they adopted the child they can ask for a birth certificate with their name replacing the name of the relinquishing parent. The original may be sealed and the child may not be allowed to see it, but it does exist as proof that the parties involved followed procedures that are intended to protect all of their interests. Of course I think the child should be able to see that document, but that is a separate battle.

            If the father is a terrible man and he is stripped of his parental obligations, why would we the people deem it not necessary to record such a major thing as stripping a person of their parental obligations. That kind of judicial omission seems ripe for corruption – would he have to be convicted and sentenced of rape to not be recorded as father or is being accused sufficient evidence? Accused by whom? The mother? The mother’s father? What if the accusation were unfounded and out of spite? What if it were later retracted? Its not so cut and dry in this world of ours which, I thought was the reason for due process. I find it abhorrent that we actually have laws that permit facts of parentage not to be recorded when known or corrected when errors have been identified. I find deliberate falsehood or falsehood by virtue of omission to be big-brother-ish. The state defines our reality by fondling and manipulating facts to serve their purposes. Its gross and offensive that anyone would say that we cannot handle the truth. Its terrifying.

            • I think you’re playing with the language here. Is there really a scientific definition of the word “parent?” Can you cite me to it? My guess is that there are different definitions and/or that it is accompanied by modifiers depending on usage. Thus a geneticist probably means genetic parentage (and they might call it that or something else) while a psychologist might mean a psychological or social parent and a demographer might mean something else again. We use words like “parent” in common speech all the time and most of the time most people know what we mean. My guess is that something simliar is true for scientists.

              But even if there is some unmodified universal scientific definition of the word parent, I’m not sure what it shows. The law clearly has its own set of definitions which may inform (or be informed by) but do not define social usages.

              For the law the parent question is about rights/obligations. As you suggest, I think, you can have a series of questions here. Who is initially recognized as a parent to the child? Then how can you move people out of that category and into that category. Genetics is part of the picture but it is not (and has not historically been) the whole picture. And the answers vary depending on where you are. I feel I have said this a lot, but it bears repeating–genetic parenthood (if you want to call it that) is an unchanging biological fact and no one questions that. What this blog is really about is what legal meaning is given to that fact. (Perhaps it is also about what social meaning is given to that fact.) Here, I think we might agree that the meaning varies. (I offer that as a descriptive statement–not asking anyone to say it is good/bad.)

              To figure out what meaning should be attached to genetic relationship I would try to avoid simply fighting over the language (though I know I succumb to that sometimes) and focus on the why questions: Why should it be given one meaning or another.

  14. Wally, individuals do not have a right to reproduce, only marriages have a right to reproduce. Individuals have a right to marry, and there are supportable basis to prohibit certain relationships like siblings, and same-sex couples also should be prohibited from reproducing offspring.

    • Okay–this could lead to the beginning of a huge side-fight and if you want to have it in my comments, that’s okay as long as everyone stays civil. For what it is worth, I find the statement “marriages have a right to reproduce” to be unintelligible. A marriage is not a thing with rights. Maybe you want to say “only a married couple has the right to reproduce”, which is to say that being granted a marriage license is essentially being granted a license to reproduce? This is one of those things we just are not going to agree about.

      • This relates to what you were saying up top: “Men and women are a great example–are they alike so that you have to treat them alike? There are some obvious differences as well as many fundamental similarities.”

        One of the purposes of marriage is to create equal entities which we can treat alike. They all have a man and a woman and a complete human reproductive system (by definition if not in each particular case of course).

        They are entities with rights, particularly the right to reproduce offspring. This is one of the few remaining artifacts of coverture, which I’m sure you are aware is the legal principle of a marriage being a single entity.

        But if you don’t want to acknowledge that marriages are legal entities with rights, then OK I’ll settle for “only a married couple has the right to reproduce” which is to say that being granted a marriage license is essentially being granted a license to reproduce.

        • I don’t know what it means that “one of the purposes of marriage is to create equal entities which we can treat alike.” Neither do I know how you konw that or why I am supposed your statement that this is a purpose of marriage.

          Figuring out the purposes of marriage is actually a difficult task. Surely marriage once had to do with solidifying familiy relationships allowing the consolidation of land and power. Over time a lot of other purposes have developed and/or been proposed, but there’s no official list of purposes. You are of course entitled to your view of the purpose of marriage but you cannot expect to me to share that view and in this case I’m not sure that I do. Actually, I’m pretty sure I don’t. But it is also taking us rather far afield so I will stop here.

  15. John thats incorrect. There is no locale in the United States in which individuals may not reproduce freely. Julie you would know better than I, but I’m pretty sure thats a right that has been upheld by the supreme court. If you wish otherwise, you should find another country to live in.

    • They reproduce without the right to.
      The most recent case that mentioned marriage and the right to reproduce was Lawrence v Texas, and it affirmed that marriage is about the right to have sexual intercourse, which is the same as the right to reproduce. Yes, it said marriage was more than just or simply about the right to have sexual intercourse, but in doing so, it said clearly that it was, at bottom, about the right to have sexual intercourse. No Supreme Court case has ever said there is a right to fornicate, or have sex or reproduce outside of marriage. It is one of the 10 Commandments. It has been illegal and is still illegal and a capital offense in many countries. It is a big deal. Sorry, maybe you should accept that there is no right to have sex outside of marriage, in any country. You don’t have to be perfect you know. No one is perfect.

      • In my state, sex is not mentioned in the family code regarding the requirements of the contract of marriage. Consumate is defined in the contractual sense that is to fully execute a contract involving the transfer of property. Being of age or requiring parental permission is described as being old enough to sign a contract involving transfer of personal property or having to obtain parents permission to do so. Fidelity is described not as sexual exclusivity but the same way its described in the financial code. Support is described not in terms of emotional support but in terms of financial support. Conjugal is only mentioned in the Penal code and the term is defined as of or relating to married persons and not the act of sexual intercourse between married persons or reproduction or anything similar. Intercourse and the right to reproduce is not part of California civil marriage anywhere that I can tell. And laws regarding parents and children – they obligate people to their children regardless whether or not they are married.

        You need the marriage license to have your property viewed as joint or to get that special treatment in court where you don’t have to snitch on eachother, but you can get that same thing if you are legal partners in a business to but you need the business license or marriage license. So not having the license would mean your income and assets will not be viewed as joint and you don’t have that get out of snitching free card. I don’t see anywhere in my state’s code where people who have unmarried sex are like fined for it or don’t have their children recognized as human or don’t have to take care of their kids just like married people. What is the penalty for unlicensed activity – there has to be some penalty or they would not require a license directed at that purpose. Married people can reproduce togehter but they have no more right to do so than unmarried people. At least I don’t understand what your saying yet. Lay the links on me and I will read.

        • That protection against having to testify against a spouse is another one of the remaining vestiges of coverture. It is the Fifth Amendment right against self-incrimination, your spouse is your self. I think you are wrong that business partners can also get that protection.

          California could enact fornication laws and I think they should, I think all states should have fornication laws and even occasionally prosecute fornication. People should know that they are not supposed to have sex with someone they are not married to, and married couples should feel society’s approval of sex and procreation.

          You say “Married people can reproduce togehter but they have no more right to do so than unmarried people.” And that is untrue. They should certainly have an absolute right to reproduce together (though not a right to unethical technologies to do it, though medical privacy comes into play here, we don’t know how they do it), and unmarried couples do not have a right at all. They can still do it, but they don’t have a right to. Unless of course they are siblings or mother-son couples or underage, in which case they cannot marry. Same-sex couples are like siblings in that it would be unethical for them to conceive offspring together, and they should be prohibited and put in jail if they do. That should never happen to married couples, who have a right to conceive offspring together and should never be prohibited or put in jail if they do.

      • I would say that Lawrence affirmed the right to engage in sex outside of marriage–after all, the parties were not married and they could not be prosecuted consistent with the US Constitution. I don’t think you could successfully prosecute members of an unmarried heterosexual couple for consensual sex in the US under a fornication statute anymore–which is not to say that the statutes aren’t still on the books in a few states.

        It’s important to be clear about the difference between what we think ought to be the law (as you think that all non-marital sex should be criminal) and what actually is the law. At the very minimum, can we agree that most states do not criminalize consensual non-marital sex? And can we agree that even those few that do criminalize it do not prosecute it?

        • Lawrence’s only mention of sex was that “marriage is about the right to have sexual intercourse.” The rest of the case was about intimate behavior, not sex. Sorry.

          • I gather this means that you consider intimate behavior and sex to be distinct and mutually exclusive categories? (I would have said that esx is one oform of intimate behavior.) Does this also mean that for you “sex” only means sexual intercourse? (I would have said that sexual intercourse was a specific form of sex/intimate behavior.) And does this mean that in your view all sorts of people are entitled to engage in intimate behavior that is not sexual intercourse but only people who are married can engage in sexual intercourse?

    • Right. People are free to reproduce here–you cannot bar them from doing so. Once, of course, this was not the case and this is a dark and tragic part of our national heritage. See http://rockcenter.msnbc.msn.com/_news/2011/11/07/8640744-victims-speak-out-about-north-carolina-sterilization-program-which-targeted-women-young-girls-and-blacks (which just happens to be in today’s news.) Note that NC is trying to figure out what to do to make reparations for what everyone now understands was a wrong that was done.

      • Absolutely, everyone should have a right to their fertility and to have it protected, not put in jeopardy by policies and programs that lead to STD’s and surgeries that render people infertile. Programs that treat infertility lightly are unconstitutional, like the TransKids Purple Rainbow Foundation that encourages parents to raise their kids as the other sex. In their FAQ’s, they answer the question “Who will they marry?” with this line” “If they choose to have children, they will seek out options available to other infertile couples.” They are going to have to make reparations for sterilizing people someday too.

        And everyone should have a right to marry, and every marriage (or married couple) should have a right to have sex, natural uncontracepted procreative sex, and create offspring. They don’t have a right to parent those children, the state can take their children away if they are abusive or unfit parents. But they can’t take away their right to make more, they can’t sterilize them. (They can incarcerate criminals and keep them away from their spouse, of course.)

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