As I wrote a recent post on drawing lines and worked through some of the comments, I was reminded about a question that has come up in comments with some frequency: Does the way laws are structured discriminate against children conceived with third-party gametes? I’m not sure I’ve directly addressed this question and it seems like it is worth some thought.
Now I may not be the best person to set this question up for discussion as it is not a question I raised, but rather one that has been raised by others in the comments. Still, I will try and then trust that others will move the argument along so we can have a look at it.
The first thing to do is to clearly describe the way in which two categories get treated differently. I think what people generally have in mind when they raise this is that children conceived via third-party gametes may not have a legal relationship with the person who donates the genetic material. (To make this simpler, I’ll restrict my thinking to states where there is no protected legal relationship between the gamete provider and a child conceived with those gametes. In some states there is a legal relationship and so that will muddy things.)
Here’s the problem I see: It’s not the case that children conceived via intercourse have a right to a legal relationship with their genetic parents. Some do and some don’t. See, for instance, Lehr v. Robertson which came up in yesterday’s post. (There are other examples as well.) This means that my description of the line drawn (those conceived via intercourse vs. those conceived via ART) isn’t right, because I’ve got some of the kids I’m concerned about (those with no legal relationship to genetic parents) on both sides of the line.
Now some of you are doubtless thinking that I’m not really trying here or that I’m not the best person to be doing this. That’s because I’m not myself a huge fan of genetic connection as a defining factor of legal parenthood. While it is true that this is my view, I will ask you to believe me that I am actually trying to formulate the discriminatory treatment claim here. I know as a lawyer that I can only dispute an argument when I fully understand its most forceful presentation so making arguments I want to reject is something I do–and have every reason to do well.
But we all have our limits and I need you all to work with me on this one. Can we (collectively) try to state the categories of children who are being treated differently? (There may be more than one way to do this–that’s often the case.)
There’s a different way to approach these questions we may also want to test out. There are two basic con law arguments you can make. One–the one I’ve been talking about here–is equal protection. This has to do with treating different groups differently.
The second is substantive due process. When you make a substantive due process claim you don’t compare groups but you focus on the right itself. So for example, can the state forbid all people from using birth control? If a rule applies to all people then you cannot invoke equal protection–everyone is treated the same way. But the answer to this question is still “no” and that’s because the Supreme Court found (in a series of cases the first of which is Griswold v. Connecticut) that there is a right to make your own personal decisions about conception.
You could try to use this general approach–that there is a right to something that all people have–to assert that there is a right to a protected legal relationship with your genetic parents. That’s quite different from the first argument and it doesn’t require you to identify different groups of people being treated differently. It does, however, have its own complications which I’m happy to discuss if we got that way.
thoughts? I’m most interested in hearing about how you all see the categories of children–how you would describe which children are advantaged and which disadvantaged. But, as always, I’ll take anything offered as long as it is civil.