A couple of days ago I blogged about the contested parentage case involving Jason Patric. There’s been a bunch of discussion there and as I was reading through it I thought of an interesting variation on the problem.
To be clear, this has absolutely no basis in fact, as far as I know. But since (as I pointed out before) we really don’t know the facts that seems fine to me. Instead, a variation like this (what law professors generally call “hypothetical”) allows you to test you thinking about legal rules. It allows you to see which facts would matter to you–and that in turn can lead to questions about why those facts matter.
With all that in mind, here’s the imaginative exercise. Suppose they facts are as we know them–which is to say that there is disagreement between the parties about what exactly the plan was, but somehow the plan went forward. Further, suppose that (as is the case) after the birth of the child the man played some role in his life. (We can talk about what role if you like–but in the real case that’s a part of the contested facts, so I won’t lay it out here). But now suppose that just before heading into court we learn that, through some terrible error, the sperm used to create the child was NOT Jason Patric’s.
Does this change how you think about the case? The social and psychological relationship between the man and child are the same–at least up to the point of discovery. The intentions are the same. I’ve changed one fact–the existence of the genetic connection.
My expectation is that for some people this is an important and even definitive difference. To the extent Patric’s claim is premised on the genetic link, if I take away the genetic link I take away his claim. And I know that for some people the genetic link is all important.
For me it is not. I care most about the conduct of the adults–and in particular the adult/child relationships that are created by that conduct. Thus, Patric either is or is not a parent (to me) based on those contested details. The presence or absence of the genetic link doesn’t change that for me.
But there’s another group of people I’m wondering about: The people for whom intent is critical. Suppose there was a shared intent that Patric would be the child’s father. Does the fact that his sperm wasn’t actually used matter?
I can imagine that some people might say “yes” while others say “no” to this question. Perhaps for some intent is only meaningful where it is coupled with genetics. And perhaps for others intent on its own is what matters. It’s these possibilities that (to me) make this an interesting hypothetical. I’m curious to know you people think.
And now perhaps I’ll return to those earlier comments……