The Forest Instead Of The Trees? (Just for A Moment)

There’s been a fairly extensive discussion of what I’ve called third-party reproduction here over the last little while, featuring a couple of threads that I’ve tried to begin to draw together.   It’s a pretty fine-textured discussion of a range of issues–details like exactly how one pays for sperm/eggs, things like that.   And like all good discussions, there’s been a lot of disagreement.

I intend to continue that discussion but I wanted to take just a moment away from it to take a step back and look at the bigger picture.   Oddly, I think we might find greater agreement at a greater distance, at least among the folks active in the discussion.     

From my perspective it makes very little sense to have the parental status of a man who provides sperm for the creation of a child turn on the precise manner in which the sperm reached the egg.   Remember, I tend to favor function as the defining factor for parenthood and a person can function as a parent whether egg meets sperm via intercourse or through some other route.   Conversely, one can fail to function as a parent no matter how the encounter of egg and sperm take place.

As I was reading comments Friday it occurred to me that people for whom the critical question is the genetic connection ought to agree with me on this one.   After all, the genetic connection either is or is not there, and how exactly it got there isn’t what you care about, right?

What this really highlights for me is that it is pretty difficult to offer a principled reason why parentage should turn on the manner in which egg and sperm meet.   Yet this distinction is quite important in the law governing ART.   There’s a different set of rules for parentage in ART cases than there is in cases where pregnancy occurs because of intercourse.

You can explain this difference with a combination of historical and practical reasoning.   A very complicated set of rules arose over the centuries.  Because there was no ART, these rules governed conception via intercourse only.   When ART came along, using the same rules frustrated the purpose of ART.    When an infertile couple used sperm from a man not the husband, they wanted to husband to be the father, not the sperm provider.   The law came to accommodate their desire.   So a different set of rules developed.

The thing is, if you take a step back and look at it, it’s hard to justify the rules except instrumentally–we need them to make ART work properly.   I’m not sure that’s good enough.   And I think every now and then it is worth stepping back to remind ourselves of what the bigger questions are.    Should we have two sets of rules or just one?  And if one, what should it be?   What would that look like/what would that mean?   That’s my momentary interruption–a look a the greater forest before we return to tree identification.


11 responses to “The Forest Instead Of The Trees? (Just for A Moment)

  1. Well, a husband has always been presumed to be the father of a child born to his wife. However, in some stats this presumption can be rebutted with a DNA test. The change in the law, I think, just made it impossible to use a DNA test as evidence for rebuttal if the husband consented to the use of donor sperm. Which, I think makes sense. I don’t think a man should be able to sign a document consenting to that, then 9 months later say, “no thanks, changed my mind.” I knew of a guy who actually tried this after a divorce – said he didn’t want to pay child support because he never cared that he was infertile and his wife was the one who wanted the donor sperm and he never wanted any kids that way but gave in because she did. He had signed the consent, so it didn’t work and he was required to pay support, but I think he actually chose not to see the kids and let the mother have full physical and legal custody with no visitation. They were old enough to know what was going on, so I felt really bad for them.

    Even without fertility treatments, parental rights can be voluntarily given up for the purposes of another individual or couple raising the child – it’s called adoption. While the mother cannot sign away her rights before birth (so she can decide after birth if she really wants to go through with this), in many states the father can, or he can simply take no action at all if he doesn’t want the child and can’t be bothered to sign something.

    I’m personally of the opinion that genetics should be the default determination of parenthood. That is, that the biological parent should be presumed to be the legal parent, with rights that cannot be involuntarily terminated absent abuse/neglect, unless there is evidence otherwise – such as the biological parent voluntarily signing away their rights for someone else to raise the child, whether through sperm/egg donation or adoption. While I believe that a biological parent, unless proved unsafe, should always have the first opportunity to raise their child, I’m fine with them signing that right away as long as they ensure someone else will be responsible for the child and care for the child. I can see where the process of giving up those rights needs to be a bit different with ART and adoption, but I think the end result should be the same – the biological parent has rights unless they choose to let someone else raise the child instead of themself.

    As for children conceived the old fashioned way, right now the law is, I think, that parental rights can only be voluntarily terminated by one parent if the new spouse/partner of the other parent is willing to do a stepparent adoption. So I guess this kind of creates a conflict for me and maybe it’s a bit hypocritical. I’m fine with someone giving up their rights even if the end result will be that the child is raised by a single parent who used donor sperm or a surrogate, or adopted by a single parent. Yet I don’t want men to just be able to abandon a pregnant girlfriend because the birth control failed and they don’t want to have a child and the girlfriend refuses to have an abortion. I’m not sure how to resolve this and maybe everyone is a bit hypocritical about something, I don’t know.

    • “While I believe that a biological parent, unless proved unsafe, should always have the first opportunity to raise their child, I’m fine with them signing that right away as long as they ensure someone else will be responsible for the child and care for the child.”

      This does not occur in gamete donor situations as there is minimal to no screening as to whether the recipients are actually fit to care for the child.

      I would also add that someone should have to show pretty good cause in order to permanently waive their parental status and it should be reviewed by a court.

  2. That’s what I’ve been trying to do! Should we have two or three or four different sets of rules as we do now? No.

    Ask yourself what that is a sign of – when there are different rules for different groups of people what does that result in?

    Discriminitory policies don’t discriminate against everyone, that is why they are so hard to change. Most people will take a neutral position on unequal treatment if its not working to their detriment. That is apathy.

    Not everyone who is treated unequally will be upset about it. That does not make it right.

    Making the rules the same for all won’t prevent anyone from reproducing freely. All it will do is obligate them to their offspring equally once they have them. Finding someone to make a baby with is a private matter, obligating them to care for and support them is a matter of public health safety and welfare.

    • To be clear, I’m not always against different sets of rules for different groups of people. While I think the heart of equality is treating like things alike, if things aren’t alike, then we need not treat them alike. To take an example, I think different rules for adults and children are perfectly fine–because there are some real differences between grown-ups and children. So children cannot vote and, below a certain age, cannot drive or own a gun. That’s not inequality, to me. That’s recognizing difference.

      The tricky part, then, is recognizing when there is difference that ought to be taken into account. If said this before–it is very slippery and tricky.

      But in this case, if you have kids conceived via intercourse and kids conceived via ART (or if you make your groups grown-ups who conceive via intercourse and grown-ups who conceive via ART) I don’t see any real justification for treating them differently.

      • I want to double check in with you. You and I just went over the fact that you never meant to imply that people who are sterile or are infertile are actually reproducing together right?

        So when you say “couples who conceive via intercourse vs couples who conceive via art” you are talking specifically about the couple of people who are actually parties to the reproductive act that resulted in the birth of their shared offspring – whether they did that via intercourse or art is irrelevant because the end result is a child and they were the reproducers. They may not both be the legal parents even though they are both related but the couple that conceives is the couple who reproduces – separate in this case from the couple who will be legal parents.
        keeping reproduction and legal parenthood is the goal yes?

        • Oh good on you and sloppy me. Major misunderstanding caused by poor use of language on my part.

          I do not mean the couple who provided gametes, but rather the couple (if a couple) who put the whole process in motion by wanting to raise a child.

          I think your point is well taken. “Couples who conceive via ART” isn’t something I should have said. I think I should have said “couples who use ART to conceive a child.” That would, I think, have avoided the issue you spotted and made my intended meaning clear. (I trust you will tell me if you agree.) I might also just have stuck with “a child conceived via ART.”

  3. yes your right we agree

  4. “In a nutshell, at one end of the spectrum is a set of rules that prohibit or make impossible third-party reproduction.”

    What if instead of trying to prohibit and restrict people’s reproductive freedom we simply held them all accountable for the health safety and welfare offspring they produce? Sounds fair right? People with offspring would be automatically obligated to provide care and support to their own offspring while people without offspring would have no such automatic obligation. The State would automatically be obligated to provide care and support when people with offspring fail to or are prevented from meeting those obligations. People without offspring could voluntarily obligate themselves to provide care and support for other people’s offspring with the knowledge and consent of the the couple who produced the offspring and the approval of the court.

    Should offspring have any legal expectations of the people who reproduced to create them, or not? If yes for some, then it needs to be yes for all. Conversely if it’s no for some it needs to be no for all.

    Having the right to have certain expectations met does not ensure that they will be met, but there is dignity in that right remaining intact. We currently have a system where our rights to expect certain things from our genetic parents simply evaporate and dissappear if the expectations are not met by them. We currently have a system where our rights to expect certain things from our genetic parents simply evaporate and dissappear if someone else steps in (formally or informally) and attempts to meet those expectations.

    Why should a person loose their right to inherit from their genetic parent just because their genetic parent abandoned them or relinquished them for adoption? Why should they no longer be considered legally related to their maternal or paternal relatives and why should their identity as the offspring of particular individuals no longer be recognized if their genetic parents cannot or will not provide them with care and support? Why should they loose their right to a medically accurate birth record and ongoing communication with their relatives which the UPA says is vital to an individuals health and sense of family heritage? Why can’t people maintain their rights to these things even in the absense of performance by their genetic parents?You hear adoptees say they have two sets of parents, 1 adopted and 1 bio but, they can legally marry their own sibling because their altered birth records do not reflect their identity as a member of their genetic family. Part of the reason birth records are maintained is to prevent members of the same family from unwittingly marrying and that is not possible when their identities are altered in adoption or through paternity fraud or quasi marital situations or when mother’s withhold the name of the father or when donors are not considered parents for recordkeeping purposes.

    If donors have no business on birth records for legal purposes then intended parents or spouses have no business on birth records for medical purposes. I think that when siblings find one another they should have the right to be recognized as eachothers legal siblings and that they should be prohibited from getting married because they are already family for medical purposes. I also think that because they should have the right to inherit from their genetic parent and know and be known to that genetic parent’s other relatives. The fact that they were not a legal dependent of their genetic parent while they were minors should only effect them while they are minors in that they could get the social security death benefits of the person they were a dependent of if that person died while they were still a dependent. Let them be able to inherit from the social or adoptive parent in addition to their own genetic parent rather than instead of. Why do they have to loose (as is clearly the case when mother’s withhold the name of the genetic father) why can’t the right remain intact even if it is not fulfilled as they would have that right intact had their genetic parent abandoned them and not met the definition of a donor?

    When you looked at the harm of concealment you only looked at the emotional trust aspect of it. The UPA says that it may be vital for people to have ongoing contact with both parents and families because of inherited diseases and the need for vital family medical information – only genetic parents can offer that to people, not social, adoptive, step or foster parents. Why do they have no right to this?

    • I think I might agree that if there are legal rights that flow between genetic parent and offspring (or vice versa) then they should be the same for all genetic parents/offspring. This might just be a different way of getting at my point about uniformity–that the precise mechanics of how the offspring was created are irrelevant. It’s an interesting and I think useful way to think about it.

      But we may part company soon after this point of agreement–when we come to saying what the common rights are. You have a much more expansive sense of these rights than I do. I am actually tacking towards something in this regard, but I think far more limited than you would want.

      On your last point about harm of concealment–I tried to separate out the emotional/trust aspect from the medical aspect. The latter I meant to include in the medical harm. I think they are different harms. I can imagine steps that might ameliorate the medical harm but not the concealment harm and vice versa.

  5. Lets imagine we separated the genetic family from the social family and said the genetic family had no innate right to raise the relative descendant; care and support of people would fall to the State who would review petitions from people who wanted to adopt the child and the court would decide the issue blindly not knowing if the people applying were genetically related to the child until after they’d rendered a decision. I fear that this would result in poor people not getting to keep their offspring in the family though, which I think is horrible but would get everyone off welfare. It would get rid of marital presumption, that’s good for me.

    Ongoing communication with both genetic parents is vital to keeping informed on health information of the various relatives and the relative offspring’s health is vital for them to know as well. Also public health is jeopardized when people are not recorded as the offspring of their genetic parents people should always know who their siblings and other relatives are. So you’d have to come up with the legal right to be recorded as the offspring of genetic parents so the person would never be concealed from their genetic family and then you’d be on to something.

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