Anyone who has been reading this blog for a while will probably agree with two observations, the first of which is a broad generalization. At least I hope you will. I want to lay them out here as a premise to some thoughts more general than those offered in response to breaking news.
1. People have different views about the importance of a genetic link when it comes to parentage questions. In particular, some people assert that the people who provide the genetic material used to create a child ought to be recognized as legal parents because they provided that material. Others do not agree with this view. This division and its variations and elaborations has been the subject of a great deal of discussion here.
2. I fall into that second group described above. I would not tie genetic linkage to legal parentage. I do not think a person should be a legal parent simply because he or she contributed DNA to create a child, although of course I would not disqualify a genetically related parent from legal parentage.
In a comment on a recent post someone–I think it was Kisrita–challenged me to explain why, given that I acknowledge in 1 that there are a wide range of views on the topic, I say that my view should prevail in law. I don’t think she said it like this, but I took the point to mean that it could be seen as a bit much to say “yes, I see that many people have many different perspectives on this, but my view is the right one and so the law should follow my reasoning and not those other people’s.” She asked me to justify this result.
I thought this was a very fair point to make and I’ve been giving it some thought. This is my response.
When you consider making a rule governing an area where there is a wide-range of opinion/feeling/experience it is rather a challenge. Perhaps it is impossible to please everyone. And I’m not even sure pleasing everyone is really the goal.
In thinking about legal parentage my main goal is finding hat is best for kids generally. And I tend to think that maintaining/protecting/recognizing critical social/psychological relationships is what is best for them. (As an aside–something I really need to pursue–you’ll notice all the terms I use assume an existing relationship. They don’t deal with who has a right to form those relationships. That–for me from my point of view–is a different question and a very important one.)
Anyway, so that’s my first point–I want to be clear about my ultimate goal. Now it may be that this goal–doing what is best for kids–is in fact widely shared. Perhaps the division is really about what serves this goal–whether it is served by preserving critical social relationships or whether it is served by preserving/protecting genetic relationships. I’m not sure this really makes anything easier, but maybe it’s worth noting.
It’s also important to me to be clear–I do not mean to argue that genetic relationships are entirely unimportant and should count for nothing. Some of you have probably noticed that I used to be much more absolute about this than I am now. I would now assert that the law should recognize genetic connections–at least those between genetic parent/child. But I do not think this recognition needs to take the form of recognizing the person as a legal parent.
A genetic parent may be an important person for a child to know or to know about. I’ve discussed ways in which the person may be important in a number of past posts–but it’s hard to find them to link to, alas. I think the law can and should find ways to recognize the importance of the relationship without insisting that the genetic parent must be a legal parent.
So I think the assertion that I’m proposing an “I win/you lose” standard isn’t quite fair. I’m suggesting something closer to a compromise–some genetic parents will be legal parents, some genetic parents will not be legal parents, but all genetic parents will have some recognized status–a status that can include defined rights and obligations–with respect to their genetic children.
But that said, I’m still advocating for a rule that serves the end I advance–that the critical focus should be on maintaining existing social/psychological realtionships.
It’s also worth remembering that the question I was asked–how can you acknowledge diversity of views and then advocate for a rule that leans to one side–is a question that can be posed to any of us. In particular, those who advocate for a genetically based definition of legal parentage must answer the same question. Because there are conflicting viewpoints here, any rule will necessarily create winners and losers.
I’m reminded of the harm done by the insistence on the primacy of the genetic link by a recent exchange in a syndicated advice column–Ask Amy. Sad Dad (the author of the letter) lives in a family that is not so very unusual these days. He wants recognition of the emotional and psychological reality of his family. But his relatives insist on genetic definition family. His letter reminds us of the cost this view can inflict on others. I think this is just the other side of the coin–why do people who take the genetic view get to impose their perspective on others and at what cost?