Discrimination Against Donor Conceived Children?: Some Further Thoughts

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?


5 responses to “Discrimination Against Donor Conceived Children?: Some Further Thoughts

  1. julie my phone cant do capital letters forgive me. you always argue from the cross. from the position of the poor discriminated against person who is not treat like a real parent by society because of its preocupation with genetic relatedness. you totally overlook the fact that there are close to 3 million donor offspring who have no idea who half their immediate relatives are and add to that at least 3 million relatives who dont know who they are either. those people are reproducing without all the information they need to prevent themselves from being the source of disease and illness in their own families and communities. not being named as parents of their own offspring creachts a chasm of information and a public health emergency. concealing the identity of the parent from the child and the child from other relatives is dangerous for the child parent and all relatives and the community. its bad in adoption. its bad in abandonment and its bad in paternity fraud. donors have the distinction of being the only fully protected class of individuals with offspring they dont have to be accountable to or for their offspring. millions of genetically inaccurate birth records treated as vital statistics and used as the basis for medical research on genetic birth defects. talking about whether some unrelated person is worthy of the title of parent because they are acting like a parent of a kid who has an estranged parent is so shallow. we dont live in a vacuum. you cant just say your a parent on a medical record if your not withou it having a negative impact on a bunch of lives. parent should not be a title assigned to people who deserve it. its a fact that needs to be recorded like it or not.

    • I actually don’t think it is fair to say that I always focus on the adults involved, though it’s true I sometimes do. If you read this post, for example, you’ll find very little about the adults and much more about the children. You’ll notice that the hypo is framed in terms of what the child might claim and it’s not chance I set it up that way.

      I really do think we’ll just keep coming back to the core disagreement that we have, which is about the importance of having a social/psychological parent with a genetic connection vs. the importance of having a social/pscyhological parent period. That’s what the hypo is meant to highlight. I think the child should no more lose the non-genetically related social/pscyhological parent than she/he should lose the genetically related social/pscyhological one. And I do not think that the mere fact of genetic connection makes you a social/psychological parent. As long as you and I disagree about this–and I think we probably always will–then we’re going to come back to the same issues and you’re going to feel like you’re writing the same comments over and over.

      This is not to say that I don’t see value to having information about genetic origins. Again, I think we’ve discussed this quite a bit. There are ways of preserving the information, making it available to children at some point and that sort of thing that don’t make genetics the be all and end all of parenthood. Indeed, I think the overemphasis on genetics can counterproductive here. If genetics is so important than non-genetic parents perhaps should feel threatened by the genetically related people out there. Perhaps they should even feel like second-rate parents, which might lead them to conceal their status. Nothing good will come of this, it seems to me.

  2. What’s wrong with giving the guy in your hypo legal guardianship so that if the father is ever found his deceased girlfriend’s son can add him to his birth record and then be considered legal kin to his father and siblings and cousins and aunts and uncles and grandparents nieces and nephews and they will all be considered relatives of his own children when and if he has them. He’ll be able to obtain birth, marriage and death records of his father, his father’s parents and father’s other children and they will be able to obtain his. He’ll be considered kin for inheritance purposes and he could name any of them as a dependent relative on his tax returns should he need to care for one of them as an adult and they’d be eligible to receive his social security death benefits if he died while caring for one of them that was permanently disabled and vice versa. They’d all be eligible to sponsor one another to emigrate to the United States. They’d all be able to take time off under the family leave act to take care of one another should they become ill. They would qualify for bereavement leave to attend one another’s funerals. They would not be allowed to get married to one another. He would not be prohibited from marrying one of his guardian’s nieces or nephews. They would all know who to avoid dating and would be able to have ongoing communication about family health should they wish to. All of that stems from the simple act of naming the genetic parents on the birth record. If the proper name is entered at the time of birth it also means the record does not pollute the nation’s vital statistics or undermine medical research in genetic birth defects and it prevents the wrong people from unwittingly loosing contact with their offspring or unwittingly playing the roll of father to another man’s child. It prevents fraud.

    A non genetically related parent may be wonderful but they are only in that roll because the person who is suppose to be there is not there. We need to know why they are not there in fairness to them and their offspring before we just say that someone else is the child’s parent. That is not an unreasonable thing to think considering all that is lost when a non genetic parent is named as parent on a person’s birth record. You cannot leave the truth in the hands of a non genetic parent. That is too much power. Its dangerous as we can see.

    Your hypo guy can have all the parental authority without the title and if the father surfaces know that the father still has his own obligations to fill. Help from the non genetic father figure should not erase the father’s duty.

  3. In the last case you cite, there couldn’t be any legal intervention to clarify the parental relationship because the man who was acting as father didn’t know he wasn’t protected legally. They’d gone on in the assumption that he was, and you don’t know how he would have behaved if he’d known.

    It’s not uncommon for the non-bio-related partner to formally adopt their partner’s bio child when they formalise their relationship, if the other bio parent is not on the scene. Where they know, people often want to clarify things legally because it’s highly inconvenient not to – eg that case in the UK recently where the non-bio partner of a lesbian couple got parental rights so she could use them to care for the child in an emergency, take them to the dentist and sign for treatment, collect them from school, and other everyday things that you need to be have parental responsibility status to be able to do.

    Where there is a clear parental relationship it seems to me that at worst the state should require the de facto father to go through the adoption process unless there are concerns about him being a suitable parent. Ideally both the dad and the child should be given the chance to reassess their relationship in the light of this news and the opportunity to redefine their own relationship without putting the child’s emotional and physical security at risk by some kind of forced intervention at a very delicate and vulnerable point.

  4. “I think the child should no more lose the non-genetically related social/pscyhological parent than she/he should lose the genetically related social/pscyhological one” Really?

    Would you say “I think the child should no more lose the non-genetically related social/pscyhological parent than she/he should lose the genetically related one”?

    Why should the child have to loose anyone? There is an absolute clear benefit that comes fom being known to and knowing ones immediate genetic kin that does not come from knowing ones social/contractual kin. Why would anyone deliberately place a child in a compromised position of trying to swap family who are relevant to their health with those who are not? Why cant they just be step family?

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