I’ve had an extremely difficult time keeping the blog properly populated with fresh material this semester, for which I apologize. It’s just been a crazy teaching schedule and I don’t know what all else. My apologies and my gratitude for those who bear with me.
I do have a whole bunch of things stacked up here–a pending Utah case and a case to be argued before the US Supreme Court this coming Tuesday are very high on the list. But I also have necessary travel which will obviously disrupt things. So this post is one of those “let’s take a step back” posts, reflecting my efforts to find different ways to look at things.
I’m sure you’ve all noticed that we come back to some fundamental disagreements over and over again. One–not the only one, but perhaps the most commonly appearing one–is about the role that genetic connection should/does play in the identification of legal parents. The fact is that in law in the US genetics doesn’t always rule. It does if the government is looking for someone to support a child and cannot find anyone else. But if two men are vying for the top spot as legal father, there’s no certainty that the man with genetic connection to invoke will win. Indeed, we know he will at least sometimes lose if the other man can stand next to the woman who gave birth and say “we’re married.” (That would be a description of a well-known Supreme Court I’m about to teach called Michael H.)
Rather then just endlessly debating the same question, I’ve been looking for different ways to frame the core inquiry. Mind you, I think the ultimate question is the same no matter how you frame it–I do not think I can make “go away” as it were. But surely sometimes a new perspective brings some new insights, even if it doesn’t radically change the whole situation.
So here’s a different way of asking the same question: Does a person have to earn parental rights or are they simply entitled to them because of some attribute–specifically because they are genetically related to a child? Once you adopt one point of view or another it’s not a difficult question to ask. For those people who give genetic connection primacy, parental rights are not earned. You are entitled to them because that child was created with your genetic material. If it’s your material, you should have the rights–end of story .
Perhaps, before going forward to consider an alternative view, I should pause here to again restate what it means to have those parental rights. If you have the parental rights, then you get to make (or at least participate in) the major decisions about the child’s life–where will she go to school? Will she receive any particular religious training? Where will she live? Who will she spend time with?
Now perhaps we can all agree that the question of who gets those rights is a crucial one. This is a major decision that will certainly affect that lives of the children involved. Thus, I think the rationale for awarding the rights to one person or another is also critical. To take an absurd example, you could randomly assign the parental rights to a person whose name was drawn out of a hat–and you could place all names of those interested in having parental rights in the hat.
That’s an absurd example, at least in part because there’s no reason to think that the person whose name is drawn will be a particularly good person to take on the responsibilities of legal parentage. And this brings me round to my point–my alternative to just using genetics.
I’d say that we ought to award parental rights in a way that is most likely to maximize the chances that people given the rights will make good decisions for the children involved. Put slightly differently, our goal in figuring out how to assign parental rights ought to be to do what is best for kids. (You all can disagree with this, of course. I’m just identifying this as my starting place.)
It seems to me that the best way to do this is to look first look to see if there is someone who is doing the job–someone who has been making the decisions and making them well. If there is, then I’d say this is the person to award parental rights to. And I think another way of saying this is that the rights should be earned–by performance, a track record–rather than just given to whoever can pass the DNA test.
I’ll be really concrete—if there’s a situation where you have two competing claims for parental rights, one from someone who can say ‘I’ve been doing the job’ and one from someone who can say “I am the genetic parent” (AND if the latter person hasn’t been doing the job–because I need to make this stark), then I’d go with the first person–the one who has the existing relationship. The person who hasn’t been around but who has the genetic connection hasn’t earned the rights and I don’t see a good reason to give them to that person. (As I’ve said before, we might want to recognize that this person has some significant relationship to the child–I just don’t want to give them the parental rights.)
There’s nothing new here. We’ve been round and round this many times and I don’t know that there’s much point in restating things. But it’s a slightly different way of putting it and, if nothing else, perhaps it makes the contrast clear. Just in case it wasn’t already, of course.