A Small Twist On The Jason Patric Problem

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……

11 responses to “A Small Twist On The Jason Patric Problem

  1. I forget, was Patric married to the woman? I’m guessing no, or he’d already be a legal father. So, unmarried man finds out he is not the father of a woman’s child who does not want the man to be the legal father…there is no way he has any claim to be a legal father. Do we know who the sperm came from? Has there been a paternity test that identifies a specific man, or just proves that it isn’t Patric?

    • Not married. You are correct (as a matter of law, generally speaking) that if the two people had been married he would be at least a presumed legal father.

      One could try out different answers to your questions–again to see whether it matters. Sperm could come from another identified man who doesn’t want to be legal father. Or from an identified man who has died. Or from an unknown man. Or…….

      One can explore whether these different variations make any difference to the way you think about the problem.

  2. I think intent matters on its own. But intent to do *what* matters. So: where two women agree to jointly raise a child conceived through donor sperm, obviously the lack of genetic connection on the part of the non-birth mother won’t matter. But if a man and a woman arrange for the woman to be inseminated with the man’s sperm, and agree to both be parents of the resulting child, the relevance of that agreement to any particular child will depend on whether or not the child was actually conceived with the man’s sperm.

    I am a pluralist about legal parentage, though, so I might want to say, further, that nonetheless the man in that circumstance might be a legal parent on functional grounds (because of the relationship, not because of anyone’s intent, at least if the mistake is found out some years down the line.) That should clearly work if both the man and the woman agree that he should be a legal parent. It gets more complicated in other circumstances, because while ordinarily functional parenting involves consent (on the part of the parent who chooses to be involved with the child, and the part of the other parent who consents to and fosters this involvement), the consent on both sides in this case is complicated by an important mistake of fact. There is some force, though, to the idea that this should just be a risk people bear when they raise a child together.

  3. great hypothetical case. Absent genetics, i’d say then that the role of Patric in the child’s life becomes more critical, if he was highly involved it would be different than if he was peripherally involved, definitely a much messier case.
    Also if patric became involved because he THOUGHT he was the biological father I’d give his paternity more weight, than if he always knew the truth but hung around playing daddy for the heck of it. but i suppose you Julie would view it in the opposite way.
    then of course you could complicate the hypothetical in a whole new way by sayin that the biodad is identified.

    • I think either way from a stability standpoint his role is critical in the child’s life. Removing him from the child’s life just because he lacks genetics to the child benefits no one. I know there are some (not yourself) who would say he shouldn’t have a role if he lacks genetics because of their own personal biases towards non bio parents. But it’s about the child not bio parents.

      For me to answer Julie’s question in that hypothetical situation my feeling wouldn’t change. Either way I believe he should have a parental role in this child’s life.

    • I’m going to pick up on the second paragraph you’ve got: Take the hypothetical where he isn’t genetically related–what does it matter if he thought he was? I think, as you suggest, it could cut either way or no way at all. Are we more impressed because he stepped up knowing he wasn’t related? Or are we more sympathetic if he acted under a misapprehension.

      But your comments also make me think that if you try to create law in the abstract (by which I mean law of general application, designed to resolve future disputes, as opposed to just trying to solve specific problems as they arise) you might need a very complicated set of rules. You suggest that his involvement becomes more important if he isn’t genetically related. How does one code that into a statute? And that’s just one variation.

      It could make for some intricate and complicated legal rules. And the problem with that might be that people won’t understand the rules and hence, cannot shape their conduct in accordance with the rules. And it might also be difficult for a court to figure out exactly how to apply the rules to a specific set of facts. Complicated law also leaves more opportunity for disputes about what the law means. So there is a certain appeal to simplicity. But perhaps simplicity just won’t do…..

      Argh. It isn’t easy…..

  4. What happens when nobody wants to raise the kid? What happens to all the kids who nobody intends to raise? What happens to all the kids that nobody contracts for that nobody wants to purchase and keep like a pet?

    I guess it all rolls back to Julie’s idea that biological parents are the default when there is nobody more suitable around to buy the child. Bio parents are fine as the default for all the unspecial people of the world. The ones who were not specially ordered to fulfill dreams.

    This objectification is sick.

    • Sadly, we know a lot about what happens when nobody wants to raise a kid, for it happens a good deal: They end up in foster care or worse. For the lucky ones someone steps in and makes a home and a place for the child.

      Of course, it usually happens with kids conceived via sex. I’m not aware that there’s a particularly large problem of kids created via ART who are then abandoned by the intended parents. Indeed, the more common problem is that too many people want to raise the child. (I’m not saying it doesn’t happen. I’m just saying it is vastly the exception rather than the rule.)

      And I think I need to deny ownership of the idea you attribute to me. Not my proposed rule.

      • I did not say you proposed it. It’s how you described reasoning behind existing law. Why an unrelated husband (step father) would be preferred as legal father over the bio father. Same for a female partner, either way the spouse or partner gets preferences and we only default to bio dad when there is nobody more suitable. That is what you said.

        And your saying that only kids via sex seem to experience the sad thing of being unwanted by their bio parents. First of all are you proposing or endorsing a different set of laws and rights for people based on whether or not their bio parents had intercourse or not? So differently created. Not created equal resulting in different rights? Sort of a clean constitutional split so to justify the differential treatment – ie not all mankind is created equal anymore? Stroke of brilliance its the only way to justify people not having the same rights. Right?

        Also I beg to differ on the issue of minors only experiencing being unwanted by bio parents when their bio parents had intercourse to conceive them. Virtually all people whose bio parents don’t have intercourse to conceive them are unwanted by at least one of them. Hard to see where you are coming from on that one, except to say that people who are not their bio parents want them. Clearly which is my whole point, they are wanted by the people who are buying them and so they simply cannot have the same rights as everyone else otherwise they could not be purchased and owned. Those whose bio parents did not have sex to conceive them can’t have the same rights as everyone else or they would undermine the black market child trade

      • Don’t you see? The problem is not that the intended parents don’t abandon them; it’s that the biological parents have to in order for there to even be intended parents in the picture. Why should some children deserve their bio parents by law and others have to settle for some other people who, together with their bio parents short-cut the processes that are intended to protect them? Why don’t all people deserve the same thing by law and then if they cannot have what it is they deserve from their bio parents ensure that tight protocols are followed that prevent them from being gifted or traded or sold to people that intend to raise them?

        People that think of children and parenthood as a gift or a blessing or as a reward for their good behavior and fervent desire may seem like the perfect choice to raise kids but in reality they are thinking of a child as something that can be earned. Whatever you can earn through effort you can buy with money or barter or trade for or receive as a gift and that is no way to think of or treat humans. It’s bad enough we do it with animals.

  5. Julie, if I draw on my life experience then I had two people I saw (still see) as family, who were not genetically related to anyone in my family, or to each other, but they held familial titles to us kids. For them to have suddenly disappeared for good would have been bad. It would have taught me that “people in my family” are disposable, and for a child without a biological link to anyone in my family – that another like me was removed, would tell me that it could happen to me too. So, long answer, yes, if he was seen as family to the child then that would hold weight – to what degree who can say given the age of the child, and how present he had actually been.

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