I think I’ve said enough about wise judges for the moment. I want to go back and pick up from another comment on the first of the new generation of blog posts. It’s the one by
My Parents’ Donor Is My Father” about intention. And I want to use that to talk a bit about intention and its role in determining parentage more generally. Some of this I did in a comment reply yesterday, but my assumption is that not everyone picks through the strings of comments/replies. For those who do, I apologize for redundancy. Still, maybe I’ll say it slightly differently this time and it will bring some clarity. I’ll also note that I’ve written a lot about intention in the first generation of blog posts and if you use the tags you can dig up that stuff. I think I still stand by what I said, but one never knows. It’s been years and perhaps my views have changed.
Intention and the related idea of intentional parents play a critical role in assisted reproductive technology (“ART”). In many forms of ART people use gametes (sperm and/or eggs) provided by others who do not intend to play a parental role for the child. Instead, it is the people using those gametes who intend to play the parental role(s). (I’m thinking here of what is often called “sperm donation” or “egg donation” but I’m not wild about those terms. You can read about why in much earlier posts.) You can also think about how this works in surrogacy, where a woman is pregnant and gives birth but does not intend to be a parent to that child. Someone else–the person or people commissioning the surrogacy–does.
In all of these circumstances, the people who plan to be the parents–those who set the whole project in motion–are often referred to as “intended parents.” It’s really not hard to see why. Then all you need to do is have the law embrace this idea and recognize intended parents as legal parents. (I suppose there may be new readers here, though I assume it is early for that. If there are, you should know that I care deeply about parenthood and all its modifiers. Perhaps most critically, I care about who is recognized as a “legal parent.” For more on that, read into the past. I will probably discuss it again soon, but not right here/right now.)
It may seem at first that the idea of intentional parenthood is pretty simple, but in fact I think it is not. One issue arises because intention changes all the time. I intend to go to the beach later today, but given my past track record, the odds are very good that this intention will fall by the wayside and I won’t go to the beach. No big deal (except perhaps for others who were hoping to meet me there.) But of course it can be a big deal. If a pregnant woman agrees to place her child for adoption and makes an arrangement with people or a person who wishes to adopt that child, and then changes her mind it’s a huge deal. She may very well have genuinely intended to place the child, but her intention changed. And (universally) we allow that.
By contrast, in at least some places, under some circumstances, a woman who intends to be a surrogate and enters into an agreement is bound to comply–she cannot change her mind. Her intention may change, but the law will not take account of that. Her intention is effectively frozen at the moment in time that she agreed–in law if not in fact.
I think this highlights the fact that intentions only exist at particular moments in time. They may change. And then we are left to figure out which changes are to be permitted/recognized and which are not.
Perhaps even more critically, I think there are questions about what to do with intention and questions of parenthood. And here it is important to realize that, once we say we care about intention to be a parent, maybe we should not confine that idea merely to ART? Why would we do so? So I need to think about how intention figures into parenthood more generally.
Imagine a heterosexual couple who have no intention of being parents–aren’t giving it the least thought–but engage in sexual intercourse. Need I say that this happens all the time and in a thousand different contexts? If a child is conceived does the lack of intent bear on determining legal parenthood? In particular, do we want to say that the man’s lack of intent to parent makes him akin to the sperm provider who will not be deemed a legal parent?
I know the general answer to that one: We do not. This is considered to be letting him off the hook. But if lack of intent terminated the sperm provider’s rights/obligations, why doesn’t it do the same here? Is it because someone was there to take the sperm provider’s place? (That would be the intended parent.) Perhaps that takes us somewhere–something to consider another time. Or is there something important about how the sperm was delivered that make the intention of the man who has sex unimportant? That seems somehow strange to me–that delivery system determines parenthood. It is, however, often where the law lands.
Enough to start with. On to the day. We’ll see if I make it to the beach.