Changing Course: A Bit About Intention

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.

 

 

 

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15 responses to “Changing Course: A Bit About Intention

  1. “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?”

    And that’s a similar (perhaps opposite?) contradiction that is found in adoption – he must act specifically per the law in that state to retain rights if adoption is on the table, if it isn’t, he’s on the hook for support, regardless of his actions or lack thereof.

    I still believe that there should be *some* court record accompanying/documenting the who’s/what’s – on behalf of the one created and secondly to protect those participating.

  2. It’s not lack of intent – there is no absence of intention. When men become sperm donors they explicitly do it to enable other people to become parents. If you ask sperm or egg donors they will tell you that’s their intention – not to become parents themselves by proxy (as some people believe) – and often have very personal and moving reasons for doing so.

    Whereas men who have sex then say they should not be legal fathers are offloading all responsibility onto the pregnant woman, when they are just as responsible for the situation as she is (leaving aside edge cases of deception etc) because they knowingly and jointly took the risk that as a couple they could get pregnant (contraception has a failure rate). I think the intentionality there lies in the willingness to have sex, accepting the known risk of pregnancy. You know that is a possible outcome, you just don’t think it’s that likely. Likely or not, it’s still there.

    The case of Sherri Shepherd comes to mind. She was entitled to change her mind up until the child was conceived but after that she’d agreed to become the child’s legal mother. She could enable someone else to adopt the child, but in the absence of that, could not refuse to accept any responsibility.

    I can’t help wondering what the surrogate and egg donor made of all this, if they know.

    • I see what you’re saying and I think you’ve drawn attention to an important distinction. There’s a couple of ways I see this difference (and this is really just lifted out of your comments.) You could say the gamete providers in ART specifically and particularly intend NOT to be parents, while those who engage in casual sex lack the intent to be parents but don’t have the same level of specific intent NOT to be a parent. They’re not thinking in terms of parenthood very specifically at all. Or you could say that those participating in ART are part of a larger picture in which there are people (or is at least a person) intended to be a parent, so there’s not shirking of responsibility. By contrast, the person in casual sex is, at least some of the time, leaving someone else in the lurch.

      I think these are both important points. Not quite sure where they lead, but I hope to build on them as I write a little more about intent.

  3. Exactly. There will always be inconsistencies in law I’m afraid. Most of it comes down to making smart choices, preconception. But that’s not a law issue.

  4. What about the woman who marries a man she knows is sterile, but decides to have children with him, via a sperm-donor? Then said husband is found molesting her daughter? Her INTENTIONS to remain married to him then CHANGE drastically. For TWENTY YEARS the courts have recognized this non-related scumbag as the legal father of her two children, and given him all the rights of a biological parent, allowing him to continue to abuse her vicariously, through his access to the children, and his access, through them, to her and to hurting her. The laws much change.

    • Sounds like you have a particular circumstance in mind and I don’t know nearly enough to comment–nor do I really want to get to such specifics quite yet. But there is a critical point here: Being seen as a legal parent gives you power over a child and, via that, a sort of power over others who share legal parentage. That’s important to appreciate.

    • The law doesn’t take into account the Cinderella Effect (Definition: “In evolutionary psychology, the Cinderella effect is the alleged higher incidence of different forms of child-abuse and mistreatment by stepparents than by biological parents. It takes its name from the fairy tale character Cinderella.” Source: https://en.wikipedia.org/wiki/Cinderella_effect) But the law does hold anyone who abuses a child responsible and will take that child away from that abuser. Did you report this abuse?

      • I don’t know what it might mean for the law to take account of the Cinderella Effect. Even if there really is such a thing–that is, a generally observable phenomena–you still would need to show that an individual actually did something before you can punish them. You cannot simply condemn all step-parents. And the law does generally treat step-parents differently from original parents, which might or might not count as taking it into account.

    • Couldn’t the same situation apply when a parent who is the biological parent who abides their child and the other parent won’t leave?

  5. I think the disparity between the sperm provider and the accidental procreator can be resolved by being more precise about the relevant intents. The sperm provider intends to participate in the creation of a child, but does not intend to be a parent to that child. The accidental procreator does not intend to participate in the creation of a child, but if a child results, often will want to be that child’s parent (and certainly, unlike the sperm provider, doesn’t expressly consent to give away parental rights).

  6. The choice to use ART, is a choice that can result in becoming a parent. Also when your thoughts about it change, that does not change the legal consequences of that choice. Becoming a parent is not like going to the beach or not.

    • I do not mean for a minute to compare the importance of becoming a parent to the importance of going to the beach. Indeed, I chose that for contrast–these are obviously different decisions. I don’t think anyone would say that I’m bound to go to the beach in the afternoon because I said in the AM I would. (Of course, sometimes other people in your group have counted on your representation and then maybe you are bound, at least in a moral/social sort of way?)

      But what principle explains the different treatment? I have some ideas (and will get to them shortly). I’m not quite willing to say that “important” decisions are binding while “unimportant” ones aren’t–unless there is some means of distinguishing important from unimportant.

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