I’ve been trying to work through some of the comments on this post earlier post. (The question at hand there is whether you can formulate a claim that the legal treatment of children conceived with third-party gametes constitutes unlawful discrimination of some sort.) I’m not done yet but I am going to exert my prerogative and put up another new post on the subject. I’ll still try to get back to the rest of the comments on the first post (as well as the ones on the man with 30 children), but I wanted to try to move things a bit forward. I’m inspired to do this by the comments and don’t want to lose the new threads of thought.
As I understand it, the claim people want to advance is that children conceived using third-party gametes are disadvantaged because they have no entitlement to a legal relationship with the people who provided gametes. One thing I’ve been struggling with is that it seems to me that this assumes that those who are not conceived with third-party gametes do have such an entitlement and this actually isn’t true. Thus, it’s hard to say that donor conceived children are treated less well than other children on this ground.
Some of the comments got me thinking about other ways to frame this question. Suppose there were a category of children who, because of the manner of their conception, had no legal parents at birth. Would that be a problem?
You might think this an absurd category but historically it has existed. For quite a while illegitimate children were considered to be filius nillius, which means child of no one. They had no legal parents. (Eventually the law came to recognize that illegitimate children had a mother but it still denied recognition to a father.)
Within the last forty or so year the Supreme Court has emphatically rejected discrimination based on marital status of a child’s parents. There’s been a consistent effort to eliminate differential treatment based on marital status of parents, though it is harder to do than you might think. Thus, it seems to me, you could perhaps say that the historical precedent notwithstanding, a legal system that created a class of children who had no parents would be impermissible.
But donor conceived children do have parents–or at least they have one parent. (Perhaps this offers an interesting avenue of discussion, too. Is it permissible for the law to allow a child to have only one parent? It clearly does so in many states and I’m not aware of any challenge that has been brought.)
I would imagine that the point some people would then raise is that while those who are donor conceived do have parents, the parents are the wrong people–they are not the people who are genetically related. Donor-conceived children have parents who are not genetically related to them while not-donor conceived children have parents who are genetically related to them.
Assuming you could establish this difference (see my earlier skepticism) I think the response to this (in court) might be the equivalent of “So what?” Why does the difference in treatment matter? Are parents who are genetically related better than parents who are not genetically related?
Here I think history might again become important. Historically parentage has not been defined by reference to genetics. (I’m thinking here of the marital presumption.) There’s no traditional entitlement to a genetically related parent. Thus while there may be somewhat different treatment, why should the difference concern us as long as each child has at least one parent?
Ive been pondering a hypothetical to think about that turns the problem inside out. Imagine an unmarried couple. A child is born to the woman and the man assumes (wrongly, as we shall see) that he is the genetic father of the child. The three–man, woman and child–live together as a family for ten years. the man performs the role of father (whatever that means). Then the woman dies.
For some reason genetic tests are done and they reveal that the man who has served as father for all those years is genetically unrelated to the child. There is no way to locate the man who is genetically related. The state seeks to declare the child a ward of the state and place her for adoption on the grounds that since the man isn’t genetically related, he’s not a parent.
Stanley vs. Illinois is akin to this, but in Stanley it was assumed by all that the man was the genetic father of the children. (I do not believe DNA tests were done.) Under those circumstances, the state was not permitted to ignore him and declare the children to be parentless. (Illinois law at the time did this because the parents weren’t married.)
Can the law treat the child in my hypo differently because of the absence of genetic connection? In other words, does the absence of a genetic link justify differential treatment? Can the child raise a claim that she/he has the right to be treated the same as a genetically related child–that what really matters is the role the man has played?
The claim in my hypo is that the overwhelming similarity of situations (the person acts as parent) demands similar treatment, that the distinction cannot be given that kind of weight. I don’t know the answer to this, but it seems to me it poses a question similar to the one raised at the outset–what kinds of rules about who is a parent are permissible, when can presence or absence of a genetic relationship make a legal difference?