The post I put up earlier today is in the nature of current events, really. But as we near the year’s end it is also my nature to think back more broadly about what goes on here at the blog. I’d say that one of the most consistent discussions here is one about the importance of genetic linkage.
There are lots of ways to frame this question: Should being the genetic parent of a child make you a legal parent of the child? Should it mandate some other form of legal relationship if you are not a legal parent? Should it give you a “right of first refusal,” as it were? Today I don’t propose to address any of those questions directly. Instead, I want to restate some of the opinions that inform my take on these questions.
Regular readers will all know that I am generally skeptical about claims to legal parentage that are premised on genetic relationship. (I’ve come to be much more supportive of claims to some sort of recognized legal status that is not legal parentage.) I want to talk a bit about why I take this stance. I have done this before, but not for a long time and I think it is useful to revisit the topic. For me, this is all about gender.
When a child is born two things are always true. First, the child has two genetic parents–one male and one female. Each has contributed 1/2 the genetic material to create the child. Thus, the contributions of the male and the female are, from this point of view, essentially equal. Second, a woman gave birth to the child and, before giving birth, was pregnant for something like 40 weeks.
The second fact is particularly important to me. In a perfect world–one where pregnancy was always and only chosen–it would generally mean the woman had made a specific decision to nurture a child. But even in an imperfect world, it generally means that the woman has already invested a substantial amount in the child and it often (even very often) means that the woman has also invested herself in the idea of being a legal parent to the child. What I mean is, the woman has imagined herself raising this child–making the critical decisions, being present at the crucial moments. It’s possible that another person has made a similar sort of commitment to the as-yet-unborn child, but it isn’t necessarily the case.
By contrast the genetic parents of the child may be completely uninvolved in the pregnancy/birth process. (I think it might be easier for me to talk of the genetic parent as being male, but I recognize that an egg donor is a female genetic parent, but this is less common and rarely if ever occurs by happenstance.)
Now I need to digress a moment to talk about legal parentage and power. I think it is fairly apparent that legal parents have power over children–they make decisions for them all the time. What is less obvious is that when there is more than one legal parent, each legal parent has a certain amount of power over the other legal parent. If legal parent A wishes to make some decision for the child, legal parent B can oppose that choice and at the very least make life very difficult for parent A.
Now to put this in gendered terms, I worry about instances where a man and woman are both legal parents but the woman is more committed to the child. In this instance, the man, by virtue of his status as legal parent, will have leverage over the woman and child while she will not have corresponding control over him because he doesn’t really care about the child.
It seems to me that using genetic connection as the determinant of legal parenthood actually maximizes the likelihood that this situation will arise. It means there will be (many?) men who are legal parents who have no particular interest in the child per se but do have an interest in controlling the mother of the child. A man need to nothing to earn the status of legal parent save participate in a fleeting act of intercourse.
I’d much sooner have parenthood turn on something that actually demonstrates an interest in the child. This doesn’t by any means rule out all genetic parents. It just means they have to do more than simply be genetic parents. They have to take action to manifest their desire to be parents.
I know this leaves a host of questions unanswered. Most obviously, how can anyone other than the pregnant woman manifest the desire before the child is born. I put these questions aside for now, though. I just wanted to see if I could walk through why I think basing legal parenthood on genetic relationship alone is a bad idea.