I’ve been meaning to get back to this thread I started so confidently with “part I.” Without a “part II” it seems sort of silly. This post will make more sense if you go back and read that other one first.
Just the same I’m doing a brief recap. Maybe it’s like a running start. Maybe I’ll say something slightly different. I’ll try to summarize some principles and then go forward.
I generally support the legal recognition of functional/de facto parents. What I mean is that I think the law should recognize the people who actually function as the social/psychological parents of a child as the child’s legal parents. My primary reason for endorsing this approach is that it is, in a general way, good for children. I believe that children need stability in those primary relationships. (I think I could back this up with a lot of studies, by the way. ) So the law should protect them.
Now there is another thing about the functional/de facto approach. Maybe it’s another benefit or maybe it’s another reason I support it: It allows for legal recognition of a broad range of family forms. I think this is a good thing–in that I generally support diversity–and a necessary thing–in that that range of families is already out there with real children relying on them.
The functional approach is most useful as a backward looking tool. You find a child in a particular setting and you look back to see who has been operating as the child’s social/psychological parents. (I don’t mean you look far back. Maybe it was just this morning.) But children have a beginning–when they are born. And that’s a challenging time for a de facto test.
For reasons I will not review here I count the woman who is pregnant/gave birth as a de facto parent. That gives children one legal parent at work. But I see why this is problematic. The question is how to get a second.
Now in the past I have expressed my doubts about an intentional parent test. The idea with that test is that a person who intends to be a parent is recognized as a parent. It’s a test that has primary utility in instances of assisted reproduction. So, for instance, where a person or a couple contract with a woman to be a surrogate they are typically called “IPs” or “intended parents.”
I am not really happy about this test as it is sometimes stated. Intention is typically expressed at a particular moment in time. You sign a form or an agreement and that expresses an intention and then it’s all done. (This is pretty much borrowed from how contracts works.)
But we all know that intentions–however well meant–are often hollow. How many of us have promised ourselves we’ll get more exercise or go on a diet or cut down on time spent on e-mail? All those good intentions. Do they count if you don’t follow through?
And this is what worries me. Imagine a situation in which at the critical moment A agrees to be a parent but then A does absolutely nothing to live out that intention. I’m not inclined to give the paper intention much weight. Alternatively, imagine someone who never signs on the dotted line, but does all the work of being a parent. I’m inclined to count the real world actions over the absence of paper intention.
So I’m thinking of carrying this over to my parent-at-birth problem. Suppose your second parent is a person who can show a sustained (as in more than at a fleeting moment) intention plus some actions consistent with intention. Obviously pre-birth you’re looking at actions aimed at preparing to care for the child rather than actual caring acts. But how about if we make that person–the one with the sustained intent and consistent action–a presumed legal parent? (Because I suspect I haven’t thought of anything, I’d consider allowing the birth mother to rebut that presumption by some sort of showing. This part is very sketchy, I know. )
It doesn’t seem to me that this is the most exciting proposal I’ve ever devised but it does seem to me to be workable. In the vast majority of the cases I can think of it gives you (at least) two parents and (to my mind) the right two. Married couple with planned pregnancy? Both parents (whether ART or no). Unmarried couple with planned pregnancy? Both parents (whether ART or no). Single woman planning to raise child alone probably gets to be sole parent. Friends going in on the project together both get to be parents (if one is giving birth.)
There are two other scenarios to note as well. First, a surrogate is a legal parent. I’ve written about this at length and it’s the way I’d prefer to go–not because I’m hostile to surrogacy but because I think it leads to a better practice of surrogacy. Second, a gamete donor isn’t a legal parent. They don’t have any intention and, I assume, take no steps that would create the impression that they do.
I’m well aware that this last is not acceptable to many people. This is a point at which I know readers disagree with me. I’m not offering the argument here–just trying to lay out the description.
And that’s where I will stop today.