Parenthood and Its Modifiers, II: Natural and Adoptive Parents

I wanted to pick up on a terminology thread I started a little while back.   You might want to go read it or skim it or remind yourself of it.   The basic idea is that the term “parent” is often accompanied by a variety of modifiers and understanding the different modifiers and how they relate to each other is important to the conversation here.

Remember the core purpose of this blog:   I’m concerned about how we define legal parent.   I take it as a given that the category of “legal parent” exists.   A legal parent is the person who has all sorts of rights and obligations vis-a-vis the child.   So, for instance, who decides whether a child is raised with or without religious training?   The legal parent or parents.   Who decides on what sorts of non-emergency medical care will be provided?   The legal parent or parents.   Who decides where the child will live and go to school?  The legal parent or parents.   It’s possible to imagine a world without legal parents–perhaps one where some state bureaucracy dictates these choices for the child–but that’s not my task here.

So then the question is who gets recognized as a legal parent?  What are the rules that tell you which people are legal parents?  The answer to this question turns out to be complicated.   We have had (and have in place now) a series of rather complicated rules for who gets to be a legal parent.

Last time I left the term “natural parent” aside.   That’s what I want to return to here.   I think many people use the term “natural parent” to mean “genetic parent.”    If you look for a dictionary definition I think that’s probably what you’ll find.   I think I assumed that was what it meant myself when I started to think about all this.

But I think that is incorrect as a matter of law.   What I mean by that is that “natural parent” has a legal meaning and it isn’t the same as genetic parent.

Let’s go back to the all-important concept of “legal parent.”   An adoptive parent is clearly a legal parent.   Indeed, I think you could say that adoption is a formal legal process by which one becomes a legal parent.   So all adoptive parents are legal parents.

But of course, not all legal parents are adoptive parents.  Adoptive parents are only a small subset of legal parents.   And here is the surprising thing:  All those other legal parents–the non-adoptive legal parents–they are considered to be natural parents.   That is actually the way the term “natural parent” is generally used in law.  It’s the label given to non-adoptive legal parents.    You can see this in the New Mexico case that was discussed here not so long ago.    Any legal parent who is not an adoptive parent is, by definition, a natural parent.

As used in law, natural parents are people who do not have to go through a formal legal process (adoption) to become legal parents.   So a woman who gives birth to a child is a natural parent because her status as a legal parent is established by giving birth.  A man married to that woman is a natural parent because his legal status as a parent is established by his relationship to the woman who gave birth–no adoption is necessary.   An unmarried man who holds a child out as his own is a natural parent because his status as a legal parent is established in the holding out–not in anything like the formal process of adoption.    A de facto parent is also a natural parent.

I can sort of see how the word “natural” came to take on this meaning–it is legal parenthood that just happens as opposed to that which is formally conferred.   But I can also see this as a source of a lot of confusion.   For instance, just as all adoptive parents are legal parents, so all natural parents are legal parents.   But because so many people equate “natural parents” with “genetic parents” (or the to my mind really fuzzy and ill-defined category “biological parents”) you might move from the first statement to a second one–that all genetic parents are legal parents.   That’s not a true statement.   (I mean this as a descriptive statement, not a normative one.)

You might also assume that if you can prove that someone is not a genetic parent then it means they are not a natural parent–but that’s not true, either.   You only to look at the New Mexico case (among others) to see that.   Chatterjee is not a genetic parent and she is, in terms of law, a natural parent.

What I want to emphasize is that the common meaning given to “natural parent” isn’t the same as the legal meaning.  This is bound to cause confusion, but I’m not quite sure what to do about it.    Perhaps the best I can do is to only use the legal definition myself and try to be as clear as possible about how this all fits together.

 

 

 

 

About these ads

28 responses to “Parenthood and Its Modifiers, II: Natural and Adoptive Parents

  1. Julie – the problem with assigning “natural” to a non-genetic parent (whatever version) becomes an issue in a few places in law and probably others.

    Inheritance laws – would a child of a defacto parent have the right to inheritance if the child was not listed in the will? What if the will stated to my natural children I leave – how will the probate follow the intent.

    To become the president – could an adopted child from a foreign country become president because the child is “natural” child of US citizens? Would a certificate of foreign birth as the natural child of US citizens allow him/her to be qualified to be president?

    Could parents of a child adopted from a foreign country skip US Immigration and all the rules to confirm the child was deemed an orphan under US law to allow them to immigrate, simply by applying for a certificate of foreign birth of their “natural” child. I say this because a lot of international adoptions take place in the foreign country BEFORE the US immigration investigates the orphan status and if approved, grants a visa for the child to immigrate to the US and based on the visa either gains citizenship at entry or upon re-adoption in the home state.

    • It’s certainly true that using “natural” as it is used in law can create all sorts of confusion and problems. I bet there are very few uniform answers to the questions you pose.

      You’d have to look to state law to see whether a child not listed in the will would take as an heir. I know that in many states a child can take by virtue of having been held out as a child without regard to genetics. I don’t know about a de facto parent–but it seems similar to me.

      As for the presidency–I think the language in the Constitution is “natural born citizen of the US” and I’m not sure people agree on what that means. Given the apparently endless furor over Obama’s birthplace, I take it some people understand this to mean you have to be born in the US. (No one doubts that Obama’s mother was a US citizen, do they? So he could claim citizenship by virtue of that relationship no matter where he was born.) This leads me to conclude that whatever the language in the Constitution it might mean something else entirely. Not very helpful, I know.

      I know nothing about international adoption and so have little to say about that. But adoptive parents are not natural parents—that’s essentially by definition.

      I don’t mean to undertake a defense of the legal usage of “natural parent” based on simplicity. It’s not simple. And given the more common usage of “natural parents” as equated with genetic parents it’s downright confusing. But it is the legal usage of the term.

  2. Recording people as the offspring of their genetic parents on their birth certificates entitles them to recognition as legal members of their genetic families and there are many rights that flow from that not only to a person’s offspring but also to other relatives within the family. Why should we skip this critical step that grant’s people legal recognition as members of their genetic families when legal recognition as a member of any other family does is not of any medical relevance to them or their relatives? Why would we not want all people to be recognized as members of their genetic families first and foremost and then members of other families secondarily regardless of who has the right and authority to raise a child?

    • I don’t know whether you mean to be describing how the law currently works or arguing how the law should work. FWIW, putting a name on the birth certificate does not entitle people to legal recognition as a parent, though it may be evidence of something or other. So if a woman names a man at the hospital his name may end up on the birth certificate but the mere fact that it was recorded that way doesn’t mean he is for sure a legal parent.

      There is no reason that one couldn’t have two separate registrations for children–one something akin to pedigree that involved genetic lineage and one that was a legal designation of parentage. (I’m not sure why one or the other would be “first and foremost”–that just seems to make more controversy from my point of view.) You could have different sets of rights/obligations that flow from the two designations and you could work out a sensible relationship between the two sets of rights/obligations. I’d even go so far as to say that this is perhaps a worthy goal given the host of issues that have been raised here–and maybe even a goal I share.

      I just want to be clear that this is not an accuarate description of how things currently work, nor is an description of any system I’m familiar with from the past. It’s a new idea that would need to be refined. The devil is surely in the details–like what exactly are the rights/obligations that flow from the genetic lineage designation and what from the legal parentage designation? It’s surely worth thinking about–and I do think about it a lot. But I wonder if I’d have a lesser set of rights flowing from genetics, such that it would be no more acceptable to you than the current system were I to be the designer.

      • The only rights that should “flow” from being the genetic mother and father are to be named on the birth certificate as mother and father. And there is certainly a responsibility to take care of genetic offspring and support them financially (and their mother), but there is never any set rule about who the legal guardians are, nor should there be.

  3. I think Marilyn wasn’t speaking about genetics making someone a legal parent – rather the person on the certificate has legal rights that flow from being identified as a genetic relative – in terms of inheritance etc.

    The pedigree and legal descriptions is exactly what should happen for adoptees for instance. The pedigree has to be first (or perhaps permanent ?) and the legal designations second in adoption and probably other instances because adoptees can and are readopted (dissolution and readoption – and step parent adoption) – and that seems to be happening more and more much to my dismay.

    Referring to my last comment – I don’t know how any states have dealt with this issue when they have opened their sealed records laws but Ontario built conditions into their new open record law for adoptees (some type of process on whether a previous adoptive parents records would be unsealed) so it happens often enough to be incorporated into law.

    • Yes exactly. I say first and foremost because only your genetic parents are medically relevant and only their relatives are medically relevant and in fact that relevance flows both ways as the health and identity of the child is just as important to the genetic parents and their relatives as they are to to the person for whom the certificate was issued. Immediate relatives are entitled to obtain copies of one another’s birth marriage and death certificates; those certificates contain important information about those people’s health – so important in fact that the information on original certificates is collected by the CDC and is used for medical research on genetic inherited conditions. Its worth noting that revised certificates upon adoption are not collected and used for that purpose by the CDC because they are only interested in the certificates that are suppose to be genetically accurate – the original ones. Its a travesty that adopted individuals are denied the right to that information and it is a travesty that their relatives are denied access to theirs as well. Its an absolute crime in my opinion when the information on original certificates is withheld or falsified with the names of genetically unrelated parents. Its unnecessary and serves no other purpose than to feed the ego of the people who intend to raise the person on the certificate.

      Yes other rights flow from having the genetic parents named on the certificate like inheritance and simply being a legally recognized member of their family because they are legally recognized siblings and grandchildren etc with that certificate in their hand and they can take time off work to care for sick relatives or take time off to attend a funeral or help a sibling immigrate. They can claim an ill sibling as a relative dependent on their tax returns all of this should be permanent and unalterable even when a person is adopted into another family. Therefore I say genetic first and foremost and adoptive, step, in-law, foster etc secondarily so that people would always be recognized members of their own families first and foremost in addition to members of other people’s families. You know step family members qualify for all that stuff too except immigration and what would be the harm in just being a step parent instead of having to be listed as a parent. Nobody ever answers me when I say look at all that is lost for a person who ends up with their step father or mother named on their certificate as a parent. You never answer me Julie. You never address all that is lost and could be saved were it not for the selfishness of the people who reject the “step” designation in front of the word parent. They would have so many rights and so would the child + the child would loose nothing with regard to their own genetic family. Why is it a good thing for the child to loose all that in order to gain a step parent who denies being a step? Would they love them less if they had to accept the step designation?

      • What do you gain out of labeling adoptive parents “step parents”? Why can’t you have whatever rights you want from genetic parents without labeling adoptive parents as “step parents”?

        • I don’t think she is referring to what we’d traditionally call “adoptive parents” but to families where the child was born from the eggs or sperm of one half of the couple along with eggs or sperm from a donor, so that the child is genetically related to one of the people raising him or her. She believes they should be legally required to complete a stepparent adoption I think.

          • yes thank you

            • The question still applies. What do you gain out of calling them a step parent?

              • clarity as to legal status

                • How does calling them a step parent provide legal clarity?

                  • Kali everyone knows that the word parent stated without the modifier will be taken to mean genetic parent because it is the one type of parent that everyone has – its the universally understood common definition of the word parent.

                    If a person say’s they are the parent of a child that is not their offspring they are lying by omission. There is always a phrase or term that will describe the nature of a relationship clearly and exactly so that the reality of it will be understood by all. For instance it would be a lie to imply that someone was your husband if they’d never gotten married but had lived together for 15 years. It may feel like they are married but they’re not actually married without the piece of paper and the state’s recognition of them having joint income. So it may feel like your step father is more like a real father than the real father who does nothing for you but its not true because unlike marriage where a contract creates the relationship, the parent child relationship is created by being the source of a child or the offspring of the source. A step parent is connected to the child only by his or her marriage to the child’s parent. Its a real important distinction to make. Some are incorrectly recorded as a parent when they have no continued connection to the child absent the consent of the child’s parent without the objection of the child’s other estranged parent

                  • Kali when someone is in fact a step parent and their spouse’s offspring is not their offspring but someone else’s it means their spouse’s offspring has a truck load of other relatives that are, at least from a medical standpoint, relevant to them and someday to their children as well. What is gained by specifically describing that spouse as a step parent is respect and acknowledgement of the child’s maternal or paternal relationships. There is and should be implied a duty by a person to the children that are born from their act of of sexual reproduction – and it becomes real clear real quick if that person is or is not fulfilling that duty when you 1) Knowledge their existence with accurate kinship terms and 2) Observe the absence or presence of that person in the daily life of the child. Calling the person a step parent gives them their own specific type of relationship it adds them and their relatives to the child’s existing family so that the child has an even larger base of support and will have a larger group of individuals that the government will treat as the child’s legal relatives in the event of an emergency or with regard to social benefits etc. importance of the child’s position of importance in and amongst their own kin.

  4. I haven’t had a chance to read all the comments, so my apologies if the California bill about parents has already been discussed here. But just in case it hasn’t, I thought I’d post a link to today’s opinion piece about it. http://tdn.com/news/opinion/california-bill-creates-a-quagmire-of-parental-rights/article_d77d4d3e-cfa3-11e1-b8e2-001a4bcf887a.html

    • It’s on my list of things to post about and maybe this will get me off the mark to do it now. One can hope.

      • I’m thinking maybe from a legal standpoint the word “parent” is too ambiguous. Instead we have legal guardian, genetic mother, genetic father, surrogate mother. Each term would have some rights and responsibilities associated with it. There can be multiple legal guardians and each would have the rights and responsibilites that come with being legal guardians. In traditional families, the mother would be a legal guardian + genetic mother, and similarly with the father.

        • Good thinking. Now, since nobody but a person with offspring is a ‘parent’ for the purposes of ‘family’ medical history, and a birth record is a medical record and vital statistic for the state and government before it is ever used to establish custody and control and whatnot then would you agree that only people with offspring should be listed as parents on those documents that are intended to collect information for medical and statistical purposes about people that meet that medical definition of the term parent? Or call them progenators or whathave you but would you agree that its pointless to name anyone other than those who actually share biology with the child those two individuals that the child originated from? Would you agree that the person named on the certificate has a right to have that info be medically accurate and has a right to that info on demand? Would you agree that it would be wrong for whoever takes care of the child to withhold that document/info from them and would you agree that if the record was certified based on a false assumption of maternity or paternity that no parental status or rights arising out of that false assumption or having been enjoyed in error will remain once the false assumption is discovered or reported to the court. That is pretty reasonable. If you get into the bar with a fake ID it does not mean you are an honorary 21 year old once the bar owner knows the truth.

          • Are you saying that both the genetic mother and the genetic father should be named on the birth certificate, in addition to the legal guardian(s)? If none of the people involved have a problem with that, I don’t see a problem. (Disclaimer: I’m not a lawyer and am speaking as a complete layperson. So there are probably issues I am not aware of.) It will be useful medical information. I do see a problem when it becomes legally actionable information in the sense of the government going after people who don’t provide the complete information or the completely accurate information on genetic parents. I don’t think it benefits anyone to bring back the age of government forcing people to name names or submit to medical/genetic tests.

            If my understanding of the birth certificate is correct, it establishes that a new citizen exists. I don’t think that the primary purpose of the birth certificate is to gather medical/genetic statistics.

            • The birth certificate should only list the mother and father, the parents of the child. This would never be out of date if it was filled out correctly, and the only corrections to it should be if the mother and father were listed incorrectly. Mandatory DNA testing of parentage wouldn’t be too expensive and is something people should have a right to. If a verified progenitor is unknown, the space should be left blank.

              An entirely separate document (and more than just a document, which can be out of date, but a record in a federal database) should show that someone is a legal guardian of such and such a person.

  5. Kali everyone knows that the word parent stated without the modifier will be taken to mean genetic parent because it is the one type of parent that everyone has

    This is true only in the case (still most common) where the genetic parent is also the legal parent. A gamete donor is not a parent in the usual sense in which we use the term “parent”. It is misleading to call a gamete donor a parent without the qualifier of “genetic” or “bio”.

    • No its not. Julie is quick to point out that being named as a parent on a birth certificate does not necessarily give the parent any legal rights of authority over the child. Plenty of parents have their rights terminated or have reduced or limited custody of their child. I know that the UPA says people are not the parents of their own offspring they reproduced themselves through an act of gamete donation rather than full contact sex. This is a legal fallacy and should be corrected in the law as it asks the world to pretend that the child is not that person’s offspring. Its a charade. So calling them a parent is not misleading, pretending that they are not is what is misleading

      • So calling them a parent is not misleading, pretending that they are not is what is misleading

        There is no problem with calling them a genetic parent. But calling them a parent without the qualifier of “genetic” is misleading in the case of gamete donors who are not legal parents.

        • If you mean “legal guardian” use the term “legal guardian.” If you mean genetic progenitor use the word “parent” or “mother” or “father.”

  6. and it becomes real clear real quick if that person is or is not fulfilling that duty when you 1) Knowledge their existence with accurate kinship terms and

    Accurate kinship terms would be “genetic parent” not “parent” without any qualifiers. You seem to want to remove that qualifier of “genetic” while adding the qualifier of “step” in front of the parent who is the legal parent, who is actually raising the child. I don’t know what you gain from that.

    Let’s take an example. A child is born with sperm donation to a married couple. The mother is a genetic parent and a legal parent. The father is a legal parent but not the genetic parent. The sperm donor is a genetic parent but not a legal parent. Everything is open and the child knows who the sperm donor is. The child grows up in the care of the couple. The child goes to school and her classmate asks her what her father does. Do you think she is going to give the profession of the sperm donor or of the father who raised her? You want the law to be the opposite of that experience where “father” without any qualifiers means the sperm donor and not the father who raised her.

    • People who are the offspring of an unmarried couple deserve the support of both their genetic parents don’t they? Why would they not deserve the support of both their parents? Is it fair for the law to say that people only deserve the support of one genetic parent but not the other?

      When an unmarried couple has a child the right thing to do is name them both on the certificate so that the child is ensured both their support and is considered a legal member of both families. If either one or both parents marries or is married to someone then that person is the child’s legal step parent and the child is entitled to additional support from their married parent because the parent’s income is improved with the additional income of the step parent. Step parents are considered the child’s legal family. Step siblings are considered the child’s legal relatives. The obligation of the step parent ends when the marriage ends but as long as the marriage is entact all the duties are there and the step parent’s social security death benifits would go to the child if the child had been claimed as a dependent on the step parent’s taxes and none of that interferes with the child’s rights to inherit from both parents or to receive their social security death benefits.

      If a child was being raised by their mother and step father and was receiving support from their father and had visitation with him and his family and someone at school asked her what her father does for a living, the truthful answer would be to say what her father does for a living and if she thought maybe they meant her step father because he is who picks her up from school every day, she could add to her statement by saying what her step dad does for a living. She could even tack a little end statement on by saying that her step father is more like a father than her real dad, if she was a particularly bitter type.

      I think that senario is respectful of the child’s rights and also does not expect the child to replace all of her paternal relatives with the relatives of her mother’s spouse who may not be with her permanently. With a 50% divorce rate lots of people end up as legal members of their ex-step families which can be fine if they get along but there was no real need to sever ties with their own genetic family. And what is wrong with the truth? What’s wrong with describing your mother’s husband as your mother’s husband when your not his offspring and what is wrong with holding a man accountable as your father when you are his offspring?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s