Getting Back On The Horse……

So it has been many many weeks–indeed many months, I think–since I have written here.  Truth be told there’s no really good reason why.  (I know, maybe I don’t have to have a why, but still I wonder.)   I can offer different explanations for different bits of time.  But really, what’s the point.

The thing is, I am back.  Or at least, I’m going to try to be back.   I’m going to consider this a restart.   I mean, I won’t try for the moment to pick up the threads that were active.   And my apologies to all those who have comments lost in moderation.  They cannot (for now) be a high priority.

I’m going to keep this post short.   All I want to do is sketch out two topics I mean to approach in the comings weeks/months.    Of course, I’ll cover current events from time to time–they are far to interesting to resist.   But in terms of through threads, I have two in mind right now.

The first is prompted by the increasingly broad recognition of marriage between same sex couples.   There are now, I think, 36 states (plus DC) where same-sex couples’ marriages are recognized.   Many of these have been forced into recognition by court orders.  A smaller number (including my own state of Washington) reached that point via legislative or similar processes.    And the United States Supreme Court has agreed to take on the marriage questions and will likely hear four related cases on the topic in late April.  A decision would come by the end of June.  

(You may recall that the Supreme Court took a couple of marriage cases a couple of years ago.   The opinion in one–Windsor–has become the foundation for most of the subsequent litigation.   The other was potentially a broader case but the Court decided it on grounds that did not reach the merits of the question.   There is little chance that the Court will be able to avoid the merits this time.)

And what, you may wonder, does all this have to do with legal parenthood (which is, after all, the broad topic of my blog)?   Well, the question is what now becomes of the marital presumption.

If you want to go back into what I now think of as “archives” you’ll find endless discussion of this presumption.  (The fastest way in would be using the designated tag.)  And I will have to rehearse a lot of that sooner rather than later.  But for the moment, I will be brief:   In virtually every state when a married woman gives birth to a child her husband is presumed to be the legal father of that child.   Now the husband may challenge the presumption and different states have different rules about that.  But the bigger question is whether the presumption will run in favor of the wife of a married woman.   And if it does, will other states recognize the presumption?    My thought here is that states that are basically hostile to same-sex couples–states that were dragged kicking and screaming to marriage recognition by judicial decree–will not want to extend any benefits of marriage to same-sex couples that they do not absolutely have to, and they may see the presumption as one they do not have to extend.   Whether this is correct may depend on exactly why the marital presumption works for husbands.   There is much to explore.

The second main thread is less well-defined, but will not be surprisingly to those who read the blog in the past.   You all know that I think a lot about forms of parenthood and the role of genetic connection.   Recently I’ve been thinking a lot about what may be an irreconcilable tension that lies deep within the arguments of those who support broad access to ART, as I do.

On the one hand, the importance of genetic connection is often emphasized.  It is, for instance, the justification for demands for access to surrogacy.      On the other hand, a commercial market for genetic materials would seem to be acceptable only if genetics is NOT the essence of parenthood.   In short, the more important genetic connection is, the more difficult it is to defend the treatment of sperm and eggs in ART, while the less important genetic connection is, the harder it is to justify the need for access to ART.   Can propoenents of ART have it both ways?   If not, what should give?   This is my second big topic for the coming months.

Wish me luck.  And stay tuned.

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10 responses to “Getting Back On The Horse……

  1. So nice to see you back here! Looking forward to reading more.

  2. Julie I am really curious as to what you think about the tenuous relationship a person would have with their spouses offspring if they achieve their parental authority based on a false presumption of either maternity or paternity. Regardless of the person’s gender and whether or not I personally think the presumption is reasonable if impossible due to the spouses gender or whether the presumption is reasonable based on gender but false based on fact – the presumption is one that can be challenged at any time by anyone with biological facts to the contrary. I understand that most of the time false presumptions don’t get challenged but when they are challenged it is entirely possible they could loose their parental status in the effort of correcting the person’s birth record.

    Do you think it prudent for men and women alike to undertake step parent adoption proceedings to secure the legal parent child relationship rather than relying upon a false presumption to go uncorrected if challenged?

    People may not be thinking so far ahead as an adult asking to have their parent’s spouse or adoptive parents names removed from their birth records but it is happening and in some instances they even have the support of their step or adoptive parent behind their efforts. My personal friend has a young son with a married woman who named her husband as father and she does not want to disclose the truth to her husband or the child. This is not fair to the husband or the child and my friend wants to take responsibility for his child and so he is set to challenge that presumption of paternity showing that he is the father and the child won’t loose the support of two parents as he’s willing to support his kid. I understand that there have been cases where men in my friends position have lost but there are also cases where they’ve won. So my point here is that it’s not a very stable way to become the legal parent of someone else’s offspring.

    You said in the past it is the chief reason why you yourself adopted was this stability that can’t be challenged. If you are named on a birth record and your adopted child should take a notion to get their bio parents named on their birth record it would not undo your legal status as an adoptive parent at all which seems to be the best and most secure path for people to take if they want that permanent type of situation that can’t be challenged by the kid or by the bio parents.

    • I’m posting this comment but I want to be clear that I am doing so with a lot of misgivings. The tone is too inflammatory for my taste. I’ll respond to the substance shortly, but first I want to be clear about this. Calling a presumption “false” is not helpful. You can say a presumption is a good idea or a bad idea (think the presumption of innocence in criminal cases.) And a presumption can usually be rebutted or disproved. But it is neither true nor false. It’s just a legal device. In general I think there’s too much in this comment that will cause people with deep feelings on the topic (and many of us have deep feelings) to get sidetracked in unproductive ways.

      Just a heads up for the future.

      • I really was not trying to be inflammatory. I’ll not use the term false presumption anymore. I’m confused by your suggestion that it’s OK to say whether a presumption is a good or bad idea. I hope the government does not make the decision to presume a fact is true based on whether its a good idea for someone or something. That’s a matter of opinion and a value judgement inconsistent with blind justice that does not care if a fact is good or bad for anyone or anything. So I was not trying to say that its good or bad to presume that someone is or is not a biological father or mother. I was talking about when their presumption is inaccurate regardless whether it was reasonable for them to have presumed it or not.

        You could presume your kid left school at 2:40 when school lets out but that presumption would be inaccurate if they cut their last class and left early. You may not ever find out about it but the presumption would be inaccurate.

        • I believe that it wasn’t intended, but the effect is problematic anyway.

          let me way a bit more about presumptions. I think it is quite common for the government (or a society or a legislature) to make presumptions based on whether they seem like a good idea.

          For instance, if the legal parents of a child separate, it is presumed that it in the best interests of the child to spend time with each of them. Of course, this isn’t always true. And so in some cases someone shows that it is not and the presumption is overcome. But in the ordinary course of things, a court will focus on how to divide the child’s time, not on whether each parent should get time.

          In a similar way, we presume that legal parents are the best decision-makers for their children. Thus, in the ordinary course of things legal parents just get to make decisions. if someone wants to challenge that (a grandparent, a medical person, whatever) then they can try to show that the situation is in some way unusual and thereby overcome that presumption. But having the presumption is a policy choice.

          The marital presumption is NOT a presumption about biology but a presumption about legal parentage. When a woman gives birth to a child her husband is presumed to be the legal parent of that child. (So, in many states, is her wife.) That presumption may be overcome (different ways that might happen in different states and it also depends who is trying to overcome it). But most states have made a decision that having this presumption is a good idea, if for no other reason than as a convenience, since in the vast majority of cases when a married woman gives birth it is the desire of the couple that the spouse also be a legal parent.

  3. For instance following the same rules they have for adoption in virtually every state if a sperm donor were the father and did not respond to the required public notification the court would go ahead and terminate his parental authority which would make way for a step parent adoption. At least then the birth record is only incomplete rather than incorrect. If they stopped reissuing birth certificates with adoptive parents names on them then at least the birth record would be a valid vital record of the health of the people on it so far as they are known to be identified. Adoptive parents currently can opt not to have their names on an amended birth record and the kid can function just fine using their birth certificate as is for ID purposes showing the adoption decree when they need to prove their adoptive relationship. Anyway the fact they have proof of the adoption relationship on the decree so they don’t need to have them named on their birth certificate also because it interferes with their access to their family history and medical/vital records is how they are getting the adoptive parents or step parents names removed. It’s logical and harms nobody. They have to do something if the courts won’t unseal the originals for adopted people and won’t give access to names of bio parents for their offspring if they were donors. They can’t just wait around hoping the law will change. They need loopholes too I guess. Or the lest inflammatory way to say that would be they are taking a fresh approach to achieving their goals within the framework of existing law utilizing the rights they do have to get the info they would have if the had the same rights to the same things as those not in their special classification of adopted or donor offspring.

    • There are a whole bunch of issues raised here. One could treat sperm providers as birth fathers and require procedures akin to adoption. That’s a dramatic shift from current practice and would have vast ramifications, I think. Doesn’t mean it is a bad idea. But I will set it aside for now as I want to keep a narrower focus.

      Similarly, one could focus on birth certificates–and there has been lots of discussion of those here. But that, too, is a different issue and I’m going to set it aside for the moment.

      I’m not saying these are not 1) important issues and/or 2) valid points. I’m not even saying I’ll never talk about them again. Just not right now. But much food for thought.

  4. Hey Julie I just caught what you did there in your explanation. That’s tricky. It’s good and I guess it can work but it’s tricky. You said that the presumption is not of biology but of legal parentage. That went right past me. It is not a presumption of legal parentage. It is a presumption of biological paternity which then leads to recognition as the legal parent of a child. The extend courtesy of presumption to men who agree to raise their wife’s kids by sperm donors because the alternative would be for the state to have to support the kid since they have granted sperm donors a free pass not to take care of their kids. Their motivations are in the financial interest of the state and when gamete donor is not working with a medical professional that can conceal their identity under doctor patient privacy laws the state would be able to go after him for support because his kid deserves his support in addition to the mother and any partner or spouse she has. I knew there was something not right about the legal vs bio parentage thing but I was wrong its that you replaced the word paternity with legal parent when you talked about what it is the state is presuming and that way you can lead the person you are talking to to the conclusion you want them to draw. In this case to stop using the term paternity because it does mean bioloigcal fatherhood. The less it’s used and the more the term legal parenthood is used in it’s place the more people will get use to the idea that what is conclusive is the assignment of legal parenthood rather than the biological relationship being conclusively presumed. If you could weed out the terms maternity and paternity from the codes that talk about presumption it would be more difficult to challenge and more likely to stand without needing to do a step parent adoption. Closer to the same stability but not quite as good as being either biological or adoptive though

    I think your probably the smartest person I’ve ever encountered. If I had even one teacher like you in school I never would have lost my way and dropped out.

    • I won’t go down this line too much longer but just a bit.

      First off, it’s hard to generalize because the presumption operates differently in different places. But if you look back on the blog from just before I went dark you’ll find at least a couple of cases where married women gave birth to a child and their husbands claimed the child. Then there was a challenge by another man–a man who said he could prove that he was genetically related to the child. My recollection is that in both/all (I cannot recall how many there were) of those cases, the husband/wife prevailed. In other words, the presumption stood, even in the face of an offer to show something about genetics. This tells me that, at least in those situations, it is a presumption about legal parentage. Genetics is irrelevant to its operation.

      Now it is often different if the husband wants to challenge the presumption. But that doesn’t really change my point–that’s just how the presumption operates.

      I remain convinced that it really is about law–who is a legal parent–and not fact–who is genetically related.

      And just to round things out–there is yet another conversation about why we have this presumption–both historically and presently. Perhaps that is a conversation for another post.

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