I’ve been teaching the cases that I’ve recently posted here–the string of cases from CA, UT and MI in which a woman gives birth and both her husband and her ex-lover want to be legal parents to the child. In each of them the ex-lover is the genetic father of the child. In two of the cases the husband wins decisively. The one from CA is less clear–it is remanded for further proceedings. But it seems very unlikely to me that the genetic father can prevail under the described test.
As I reread the cases I was struck by the ways in which the different courts justified their conclusions. I thought it was worth summing them up here.
Before I do that, though, I want to note that none of these are really constitutional cases. The man with the best constitutional claim (the one in UT) didn’t raise the claim in a timely manner so the court never considers it. In the others the constitution gets at best passing mention. Instead, what these courts are doing is looking at state law rules and deciding how they apply.
There are several key points, I think, that explain the conclusion. First, in most of these cases, we’re considering the rights of men who had affairs with married women. (This isn’t true in the CA case because she wasn’t married at the time of conception.). Even in an age that is somewhat relaxed about sex, this is not laudable conduct. I think it is pretty clear that part of what is going on in these cases is that the men are being punished for that conduct. (At the very least, they are seen to understand that when they engage in sex with a married woman, they are taking the risk that they won’t get to raise the child.).
Of course, there’s every reason to think that the women here are just as much as fault as the men. But they are not criticized at all. It’s a curious reversal of the usual double standard, where women are generally more likely to be shamed for engaging in overt sexual conduct. Of course, there are a couple of things that might explain this. One is that there’s no other candidate for mother out there. And then I wonder if women aren’t seen as the main actors in the sexual conduct. I wonder if, as in other settings, the assumption is that the woman is passive or even corrupted and the man bears responsibility as the more active partner.
A second reason why the husbands win, I think, is that just as the genetic fathers are villains, the husbands are heroes. They marry–or stay married to–women who cheated on them. They assume responsibility for the child. They embrace her/him and welcome into their home and their family. And they do so knowingly and willingly. (They also apparently forgive their straying wives.).
These are not cases where the husband is deceived. (I don’t think we’d cast the deceived husband as heroic.). At least by the time the litigation comes along, all these husbands know that they are not the genetic fathers of these children. And yet they want to be legal fathers. Though the courts don’t talk about this much it seems to me that this is understood as noble conduct and, as such, it entitles the husband to a reward–legal parenthood.
Now as if the opportunity to punish the bad buy and reward the good guy weren’t enough. There’s a third major factor that tilts things towards the husband. In all of these cases the husband and wife have reconciled. They are together. So the choices the court looks at are 1) husband/wife marital family or 2) genetic mother and father, but two different households (which are not getting along), so shared custody and the possibility of tension between husband and genetic father. Given our abiding cultural fondness for marriage and for raising children within a marriage the outcome isn’t really so surprising. The fact that this means that the child is not raised by her genetic father might be seen as a downside (although I don’t see much evidence that it is seen that way), but it is a tolerable price to pay, apparently, given all the reasons to make the husband the legal father.
None of these are really tied to the historic reasons for the presumption. But taken together they seem to offer a powerful rationale for siding with the husband/wife in these cases. I’m on the lookout for one that comes out otherwise.