A Hypothetical About Consistency/Stability

I put up a post a few days back about my views on the importance of stability/consistency in fashioning a test for legal parentage.    The topic came up because of a Canadian case I had commented on earlier.   To be clear (and I’m not sure I was) I meant my comments on stability/consistency more generally, though.  I was thinking about how these factors should be weighed generally in devising a test for who is a parent, not specifically in the Canadian case or a case like the Canadian case.

Anyway, my point, in a nutshell, was that I think there can be tensions between valuing stability and consistency on the one hand and genetic connection on the other.   I do not by any means suggest that these will always pull in opposite directions, just that sometimes they will.    Focusing on circumstances where they do that helps you figure out what you think is more important.     This is a staple of law school teaching–it is what hypotheticals are for.

So here’s my hypothetical for us all to think about:   John and Mary wish to be parents.  They use a gestational surrogate–Susan.   What this means is that the baby Susan carries and gives birth to is not genetically related to her–it is genetically related to John and Mary.   Let’s call the baby Calvin.

Unfortunately, there is a mix up at the hospital and Calvin is switched with some other infant.   When Calvin is one day old, he is sent home with Olivia, who gave birth to a baby in the same hospital.   Time passes.   (I’m not saying how much because I think this will be an interesting variable.)

At some point, the error comes to light and we realize that Calvin has been raised by Olivia for however long has passed, but Calvin has no genetic relationship to Olivia.   Let’s assume that Olivia wants to continue to be a parent to Calvin but John and Mary would also like to be Calvin’s parents.   Now what happens?

John and Mary’s claim for parentage is clear–it’s the genetic link.   (If you are wondering why I’ve got a surrogate stuck in there, it’s so that John and Mary do not have the period of the pregnancy to add to their side of the equation. If you want, you could think about what difference it might make if they did.) Olivia can invoke the consistency/stability values.

To me, it matters a great deal how much time has passed.  If the mistake is discovered twenty minutes after Olivia leaves the hospital, this is easy.   Calvin goes back to John and Mary.    Indeed, as long as the time is short, I get to the same answer.   (Someone might want to press me on why it’s obvious to me that John and Mary win and whether this is consistent with what I’ve said in the past about genetics.)

But suppose the mistake isn’t discovered for six months?  Or two years?  Or five years?   In these cases I worry about the effect of moving the child–about the disruption of the Olivia/Calvin relationship.   I’m inclined to hope that John and Mary will agree to be interesting and important people in Calvin’s life but not seek to assert that they should be his legal parents and Olivia should not be a legal parent.   But if everyone insists on the all or nothing approach–the zero sum game–then I think consistent with the value I place on consistency/stability I have to go with Olivia, or at least a presumption that Olivia is the right choice absent some special showing from John and Mary.

What I’m effectively saying here, I think, is that I think there should be a general rule favoring consistency/stability over genetics.  Obviously you can (and many of you do) disagree with that.

Some of you may also disagree with the idea that there should be any sort of general rule–you may wish to argue that each case needs to be decided individually based on what is best for that specific child with no assumptions made.   I think this is actually a hard position to stake out–because how do you weight the value of the genetic connection, say?   I don’t think you can do it without making some generalized assumptions.

I don’t mean to assign any particular view to anyone, but it seems to me that if you think that genetics is the essential attribute of parenthood than perhaps Calvin goes back to John and Mary no matter how long it has been.   And it’s worth noting that under current law, whoever is found to be the legal parent gets to decide whether the loser has any contact with the child at all.

Food for thought.

22 responses to “A Hypothetical About Consistency/Stability

  1. Julie – stability matters a lot. Breaking attachment or bonds can create lots of damage in the child that can carry through their entire life.

    As to genetics being the essential attribute to parenthood – I think it is something that is very important but obviously not a sole limited qualification to be determined a parent – I have four parents – mom and dad, and a mother and father…they are all my parents – works for me.

    But it is also possible to transition through any change and is up to the adults in the room to be the bigger people. At what age is to old? Every child and situation and potential transition strategies have to be looked at. I think if the transition is possible for the specific child (and that includes the adults being able to do it with grace) then it should be done. Perhaps the transition becomes like a true open adoption or amicable divorce – perhaps it is truthfulness and acknowledgement that these new people in your life are your genetic mom and dad and we are (for lack of a better term) your adoptive parents and we will take each day as it comes.

    Transitions happen in international adoptions all the time but that is considered “good”. A child may not be living with their genetic parent(s) but could have been living with a foster or relative for the past 5 years (and would have continued to live with them) and then moves completely away to a different culture, language, life. They are expected to transition through a massive change. And no one even considers a transition phase – off on the airplane to your new life…

    Side note/off topic – I was reading yesterday that a child will lose their original language by 12 weeks but not start to understand their new language until about 20 weeks when no one speaks their original language to them. I had also read that previously from an adoptee who thought they were going mad because they didn’t have a language to think in during that time.

    Complete transitions are possible but should be avoided if other solutions that are solely about the child can be worked out.

  2. So it’s your preference that people while minors should have the legal right to be raised by whoever has established a working relationship with them no matter how those people managed to attain that working relationship. So that would mean that adults have the legal expectation of maintaining legal parenthood achieved by having allowed the State’s false presumption of paternity to stand uncorrected. That would mean that adults have the legal expectation of maintaining legal parenthood achieved by mutually agreed upon black market adoptions or even forced black market adoptions. Kidnapping child traffickers all have the legal right to maintain their parental status because the child has bonded with them.

    The question for me is not who is best for the child but more importantly who has the obligation to the child such that the child would have the legal expectation to be cared for by that person? Who owed it to that child to take care of them for 18 years and why do we allow others to interfere with the performance of that obligation? If the person with the obligation is prevented from performing that obligation for whatever reason, should the child loose the right to the expectation?

    Did the child have a right to go home with his genetic parents? If so, why would that right be terminated as the result of an error? Did the genetic parents have an obligation to care for their offspring? If so why would that obligation be terminated do to this error ? Did the other woman that wound up with the baby have an obligation to take that baby home and support it? What if she did not want to once she found out that the child was not hers and what if the parents did not want their baby back? Would the law force her to continue in that roll or make her give the child up for adoption as if it were her child to begin with? Would the law just ignore the original parents and their legal obligation since they’d failed to perform their duty?

    I think the best interest of the child is served when they have the same legal expectations as all other children. A child’s legal expectations should not be altered by the non-performance of their genetic parents or conversly by the performance of someone other than their genetic parents in the act of raising them. Currently if a child is abandoned the child stops having the right to be supported by that parent. How is that fair?

    Kids should have the right to expect that their genetic and or social legal parents will cooperate to provide physical and financial support and there should be no expectation that it must be under the same roof or perfectly equal split down the middle for time or money. Your hypothetical would be best resolved by making the parents fulfill their obligation to their child so that the child’s rights are maintained. Eliminating the burden from the woman who had no obligation that the child had no expectation of support from and by ordering the adults involved to cooperate in a transition that would ease the child back into his own family while maintaining ample visitation if its desired by the woman who has no obligation to continue the relationship other than personal moral or ethical reasons. It would be wrong to force her to continue the relationship if she did not want to and wrong to say the parents had no obligation

    • Your assumption about what I think is incorrect–the one in the first sentence. This being so, most of the rest of what is here is not an accurate reflection of what I think, either.

      I do think it matters how people establish (or disestablish) what you call a working relationship with the child. This is something I’ve written about other places–including the discussion of the Vermont/Virginia case–but let me try to be more clear and to summarize.

      What I wrote here is only about the child’s interest. And what I mean to say is that for me, the child’s interest in stability/consistency in these critical parent/child relationships is more important than being raised by a person who is a genetic parent.

      But in deciding cases, the child’s interest is not the only important thing. There are other interests, some of which turn out to be larger and over-arching, even though they may not serve specific individual children well. If someone kidnaps a child or moves with them in violation of a court order, they have broken the basic rules of our system. To put it rather informally, you cannot let cheaters win or the whole system becomes a joke. So even if the kidnapper has been a perfect parent for ten years and the child is well-bonded, the child does not stay with the kidnapper.

      This is why the hypothetical is a switched-at-birth hypo–it’s so the person who bonds with the child cannot be faulted for having taken the child in the first place.

      Beyond that, I’m sure we’d find many layers of disagreement over when conduct in establishing the relationship with the child is wrongful. I’m not sure it’s worth sorting through all that. Perhaps a useful observation I can make, though, is that I think the wrongfulness of conduct is measured against the law and not personal standards. That’s because the overarching interest in making sure cheaters don’t prosper is about abiding by (or not abiding by) legal rules. Thus, if a husband stands on the legal presumption of parenthood when his wife gives birth to a child, even though he knows he isn’t genetically related to the child, that’s not wrongful. It’s not wrongful because this is something that the law allows him to do so he is playing by the rules. I know you do not like this result, but my aswer to that has to be that you would need to change the rules–which is to say, change the law.

      • OK so I now understand that you would not allow the child to remain with someone who had broken the law in order to obtain custody of a child.

        What about the issue of minors having a right to be supported physically and financially by their parents – the people that were suppose to have been named as their ? Do you think they should just loose that right because of the parent’s non-performance? When the error is discovered or the location of an estranged parent is discovered, shouldn’t that person still have an obligation to take care of their child? And should the person who has been taking care of the child who had no obligation to as might be the situation with paternity fraud, be forced to continue underwriting that child’s existence when the person who is responsible for the child is right there getting off scott free? Isn’t that the same concept as letting someone get away with kidnapping they get rewarded for bad behavior?

        • Yes, I think generally I woul dnot allow the child to remain with someone who had broken the law in order to create the relationship.

          I’m not sure what you’re asking about the minor’s right to support. I do think minor’s have a right to support from their legal parents. But that doesn’t tell you who the legal parents are. IT seems to me to be a bad idea to say that the obligation to support ends if the parent behaves badly, because that makes it too easy for the parent to shed the support obligation and actually creates incentives for the parent to behave badly. Surely we don’t want that. I suppose this means that in the case where a parent has kidnapped the child in order to disrupt the child’s relationship with another parent (which I think is a fair description of what happened in the VT/VA case), the kidnapping parent would still have a child support obligation after she/he was apprehended and custody was switched to the other parent. (I don’t know that I’d terminate the kidnapping parent’s parental rights, for that matter. This seems to me a different question.)

          I’m not sure I can follow your paternity fraud question. Maybe we need to be more concrete in terms of what we are talking about. Remember that the law may recognize a non-genetically related man as the legal parent after a period of time (holding out) and so he would have a support obligation on that basis. But I don’t know if this is what you’re thinking of.

          • I think the point is that with paternity fraud (lying to a man that he is the biological father in a convincing enough way that he doesn’t request testing) some of the men would not have chosen to act as the child’s father if they had been aware they were not the biological father from the start. Some would, some wouldn’t. So some men would have chosen not to “hold out” the child as their own.

            • I’m not terribly sympathetic to the men who raise these claims. If they care that much that they are only willing to play the role of father if the genetics line up, then they should insist on a DNA test. It’s not hard to do them, right? (See the mobile “who’s your daddy” lab in the next post.)

              On the other hand, I’m quite sympathetic to the kids involved. If someone has actually become a father to you psychologically, then I think you ought to be able to rely on that.

              It’s interesting to me that the story we tell about this situation usually makes the man the victim of the devious woman. I would suspect that the truth is often a bit more complicated and that the man is into the idea of being a father, at least for a while. Then again, I don’t know how we’d ever establish what the “typical” case like this is.

              • I would love to get you to frame the question a little differently just as a mental exercise for 10 minutes.

                When someone writes that they are mad about having been separated from their families for whatever reason, you express measured empathy tempered with a firm closing statement that while some people definately feel harmed by not knowing their genetic histories others have no interest at all and are happy to be alive surrounded by people who choose to be involved in their lives.

                So I will respond in kind to your concerns about maintaining existing relationships with people named as parents under false pretenses. Not everyone would be traumatized by such a separation from a daily caregiver. That person may be emotionally distant or may have little in common with the child they are raising or may have emotional problems and the genetic parent seeking to establish a legally recognized kinship may be entheusiastic and deeply committed to building a deep and meaningful relationship with their child while maintaining a good continued friendship with ample visitation for the person who had been named as a parent erroneously. Maybe they are more financially stable etc etc maybe the child longs for that deep and meaningful relationship with their biological family and never really liked the person raising them. Not all minors will feel the same way we have to look to what’s in the child’s best interests and maintaining the status quo may not be in their best interests.

                Personally I feel the BIC results in haphazzard expectations for adults and children alike so I’m not any more fond of my snarfy little twist favoring my side any more than I like it when you do do it. I think its really unfair to everyone involved and undermines consistency as a concept in the broader sense for society.

                • I will try to address your point which is certainly a fair one.

                  I’ll assume (I’m not sure I fully believe this) that reactions vary with regard to disruption of the psychological parent/child relationship. What I mean is I’ll assume that some people are fine and some are not, just as I do indeed frequently say that some people are fine and some are not on the genetic connection.

                  I think this leaves us with two possibly ways forward. One is to do the individualized BIC for each person, trying your best to figure out where they fall on these spectrums. I don’t find this approach satisfactory. I think you made this point yourself–it’s always possible that some judge is going to say that someone could do a better job for the particular child. This takes as away from a system of general rules/policy choices to a system of ad hoc decision making that I think is way too unpredictable.

                  The other option is to try to make generalized rules–understanding that there is variation in the reactions of people you’re dealing with. Thus, I do think you have to say, at the outset, that a generalized rule won’t always come to the best result for every individual. There will be hard cases where it doesn’t fit. I think this is true no matter what generalized rule you choose.

                  The goal then, in my view, is to pick a generalized rule that will be best most of the time. And I think the rule going with psychological bonding will be best more of the time than the rule going with DNA. Neither is perfect–so the question has to be (in a way) which is less bad. The question of which is less bad is one that can be answered in part by actual empirical evidence, but I don’t think it can entirely be answered that way.

                  So I’ll agree that not everyone will be served by a de facto parent type rule–but I think overall more people will be better off.

  3. Time left vs time served is also quite a big deal. Yes an infant will bond with a caregiver that they have lived with from birth for 3 months or 2 years, but if there are 16 years left before the child is an adult then shouldn’t the people who owe it to the child be doing the work of raising him, rather than someone the child had no right to expect that from?

    What if John and Mary don’t want to continue supporting and caring for Olivia’s child and Olivia does not want him back either. Cruel, I know but these laws are not made so much for children being a prize but rather a burden – made to require someone to take care of the world’s little people. Who gets forced to do that regardless of their intentions to the contrary. Would John and Mary be in a legal position to give the child up for adoption or would Olivia?

    What if Olivia is on public assistance and John and Mary are not…how do you think the judge would rule then when the tax payers are supporting a child that could be returned to a couple with two full time incomes? (Oliva had her baby with a sperm Donor so the child she took home has only one legal parent). Would the judge force John and Mary to keep Olivia’s baby just to keep the kid off welfare?

    • I like this idea of yours Marilyn about weighing time left with time served. this means that if a kid is fourteen, we would look at the matter differently than if the kid is four, even if the step parent in both cases was invovled for say, 2 years.

    • I think the point about time left vs. time served is interesting and I ought to think about that a bit more.

      Is describing someone as a person who owes it it to the child to take care of the child another way of saying “legal parent?” I think it might be. After all, the legal parent is the one who owes something to the child–the obligations of care and support, etc. What I think means is that I’m trying to decide who owes something to the child and thus, I cannot use the factor of who owes something to the child as part of the analysis. That makes it circular.

      It seems to me that a lot of the questions you raise–which are good ones–are about who is the legal parent of this child. And of course I want to think about why you choose one person or another–what the test is and what the rationale for the test is.

  4. At minimum change the child’s birth record to list the real parents so the child has his genetic kinship with all his relatives legally recognized and then name Olivia a legal guardian. Have the parents pay support and the child can live with Olivia and have court ordered visitation with his family and they all have to cooperate until hopefully the child is moved back with his parents and Olivia can get on with her life.

    • The phrase “real parents” has no fixed meaning. You mean you want the birth certificate to list the genetic parents, right? We’ve talked about that. We could certainly switch to a system where that is what we do, but it isn’t the system we have now. Birth certificates generally list legal parents–which takes one back to the question of who the legal parents are.

      • So people can angle to get named as legal parents erroneously in hopes that the error will never be discovered or if discovered that the error will be allowed to stand uncorrected do to the amount of time the person has now been performing parental duties. The child simply looses the right to have had those duties performed by the person who owed them that duty by default because people have a responsibility to take care of whatever arises as the result of their actions. Why does the child loose that right? Why does the other person become permanently obligated as the result of the error? Do you realize the person who stands to loose their legally recognized kinship to half their relatives by allowing the error to go uncorrected for consistency sake? Those relatives are not just “people of interest” those are that person’s own relatives and the law will force them to live as if they were legal strangers rather than the genetic kin they are and I ask you why is that fair and just treatment of the individual and why is it that we don’t owe them the respect of recognizing the truth of their existence? Why must they live out their life as if they were someone else’s child? Why don’t we owe it to that person to allow them to be the child of their genetic parents while simultaneously figuring out how to make the best of a complicated situation like that? Why must the the child’s identity be the reward given to the person who has been doing the caregiving?

        I understand that it does not seem fair that someone can get the coveted title of Father after doing nothing more than procreating. To people who want but cannot have children that must be a bitter pill to swallow but its true, that is all it takes to be a father – not hardly all it takes to be a good one though. The duty follows the title, not the other way around. Is someone who adopts an adoptive mother in your book on the day she brings the child home before she’s ever done the work of caregiving? How long until she becomes a real adoptive mother in your mind, 6 months a year? Until she’s bonded with the child then can she feel secure in saying that this is now her real adopted child? Same goes for a new mother bringing her child home from the hospital at what point has she earned the right to call herself the parent of the child she reproduced to create?

  5. would this be a different case, if say, olivia sneaked off with the baby instead of receiving it by hospital error? In both cases a law was violated, does it really matter so much whether it was deliberate or in error?

    • right! see how looking at the circumstances case by case for what is best for the kid gives society as a whole no steadfast understanding of who is obligated and who is not or under what circumstances one becomes obligated or under what circumstances the obligation can be waived or transferred its chaotic. whats best for the country is stability and consistency in law too

      • There’s a really important point to be made here, but I’m not sure I can make it well and also briefly. I’ll try, though.

        There are two ways you could put the BIC (that’s best interests of the child) into the equation. One is that you can say “in each case, declare the legal parents so that the BIC of the specific child are served.” Generally speaking no one really wants to do that. It eviscerates any idea of parental rights–because anyone can challenge any parent saying she/he could do a better job and judges would be free to do anything.

        Instead you can put BIC into the equation at a higher level. You can say “let’s have a test for who gets parental rights and let’s base it on what is best for children generally–not with an eye towards any specific child.” To follow the argument I’ve made, you can then say “what is best for children (generally) is to emphasize stability and consistency and so we’ll use that as the touchstone for awarding parental rights” and this could lead you to a de facto parent test. You could say instead “what is best for children generally is to be with their genetic parents” and that would lead you to a DNA based test for legal parentage.

        In both of those cases you are thinking generally about what is best for chidren (as a group) and not about any specific child. And of course, you have to back up your assertions about what is best for children generally.

        Perhaps I confused things by offering a specific hypothetical, but in the land of law school that is how you probe general tests–you try them out in particular situations to see how they work. It helps you figure out if you like/do not like them.

        • That approach however leads us to unequal obligations by adults with offspring. “What’s best for THIS child” specifically, should come AFTER ensuring that all person’s with offspring are equally obligated to the care and support of them while they are minors. If the parents fail to abide by then law then it should be the job of the law to intervene and attempt to secure that support or find other people to live with and that transfer of custody should be carefully scrutinized by the courts so that nobody planned it out or contracted for it or paid for it. Adoption should be handled more like a name change than a whole sale identity change so that the adopted person remains the legally recognized kin of their parents and other relatives even though they’ve gone to live with others. Each person’s identity should document them as the offspring of the individuals who created them so that there is no further back that can be gone genetically or otherwise. That is who they really are there should be nothing to uncover or discover or question for anyone ever – and if there is something to uncover it should be clear that a crime was committed against that person. Abandonment, identity theft, paternity or maternity fraud, kidnapping, trafficking. Helping someone conceal their identity the way physicians do with donors should be a crime aiding and abetting in the abandonment of their offspring. How it ever got to be legal….I know how it got to be legal husbands are on the hook so we don’t care about the real best interests of kids only care about not having to give the mom welfare money.

          people to raise

    • It matters to me. I don’t see the cases as the same. In one instance (the one I wrote) Olivia is blameless. There’s a mistake in there somewhere but there’s no bad intention. In the other instance (the one you offer) Olivia is a bad actor–she has done something wrong. I would not condone rewarding her bad behavior. There’s just nothing equivlant to that in the first version of the hypo.

  6. Wait but Julie your assuming that a person, in this case a child, is something that is awarded to an individual. More specifically you used the word “reward” as in her reward for being blameless in the hospital mix-up is that she gets to continue raising that child. An error still was made though and your suggesting that its OK to let the error stay as is, leave it uncorrected if the person taking care of the child did not cause the error. If I take your position that the child’s parents and Olivia both want the child she’s been raising. The child she’s raising was suppose to go home with the parents but an error occurred in Olivia’s favor to the parent’s detriment. Oliva then wins at the parents expense due to an error caused by someone else? Even if I saw the child as a reward for good behavior, I’d think that game was played unfairly.

    Start by assuming that nobody wants the burden of raising a newborn and that the government struggles to identify legal parents and hold them accountable for the care of the worlds children. Should a child be born the burden of nobody unless the government records something? If nobody claimed to be a newborn’s parents and it was found abandoned, the authorities would start looking for the people whose obligation it was to take care of that baby – Right now I think you’ll agree that if nobody steps forward to claim a child then at least at that point the authorities go out and try to find the child’s bio parents – even not knowing who they are the authorities will view them as having been the child’s parents who are responsible for the child’s care whether the government had written their names down or not as parents they will still get in trouble for ditching out parental neglect if the authorities catch them.

    It appears we all do have the right as minors to the care and support of our bio parents – sadly that holds true when all else fails, OK they get to be the child of their bio parent. Which means that the current default is whoever shows up with the kid first at the registrars office gets to be a legally recognized parent. That approach can hardly be called in the best interests of the child as nobody gives it any more thought prior to granting legal recognition than they do with naming a bio parent. Its far more arbitrary and even more prone to corruption than making people the default parents of their own offspring, because with bio parents you know they did not buy or steal the child or anyone else’s claims to bio parenthood

  7. Julie,
    I assume that Olivia’s birth child is given to John and Mary although you don’t mention this baby. Your hypothetical contrasts continuity and stability versus genetic connections. If continuity and stability is deemed more important then John and Mary should keep Olivia’s genetically related child and Olivia should keep the genetically related child of John and Mary. If so, do both sets of parents then tell the children about the mistake? What kind of psychological damage comes from that and does it outweigh the alleged damage of breaking the two year bonds of both children? Do John and Mary lie to Olivia’s child about the mistake and does Olivia do so as well? What if one child knows the truth and the other does not? Then both families set up a dynamic of deception that, by evidence abundantly clear in the annals of family psychology, creates an unhealthy environment that does not nurture the children.

    You assume that continuity and stability would require the child not to be disrupted even as early as six months old but that seems arguable. Whatever the soundness of your theory of continuity, the theory of genetic connections must also be considered. The literature of adoption is rife with accounts of adopted people, especially during the long era when adopted people where not told about their adoption, that relate the sense of genealogical bewilderment that they often felt growing up in families whose traits, interests, personalities, talents, physical appearances and intellectual levels did not match those of the adopted person. They had to form an artificial identity to fit that of their adoptive parents against their own natural inclinations. Many reported having to pursue interests and goals that were pushed by their legal parents and to suppress interests of their own that their parents would not support. Their degree of bonding and attachment are not strong. The children feel like strangers within the family. In addition, the legal parents often mourn the child they would have had if they were not infertile. The adopted child is a constant reminder of this loss.

    Both theories are plausible but neither are secure enough to outweigh the other. I prefer the genetic connections side, having lived through genealogical bewilderment for thirty-seven years before my mother disclosed my donor conception. That was a disruption I have slowly overcome. I tend to think that early bonds and attachments can be over-rated and so is the trauma of disruption. It happens all the time and most children survive through their innate resilience, especially if a young child is returned to his genetic family.

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