I’m not at all happy with my last post. It’s muddled and, as you might remember if you were a reader in the earlier period of this blog, I hate muddled thinking. I won’t try to fix it, but I will take another run at the topic I had in mind, perhaps from a different direction. Maybe even two different directions. Because it seems to me that the problem was that I was answering two separate questions and the failure to pull them apart is what caused trouble.
So here we go for round 2. Question one is a pretty simple one: What takes precedence in the event that some intention is inconsistent with subsequent action? There are really two ways this can happen in the contexts I’m thinking about here. One is that someone says “I won’t be a parent”–I’m taking that as clear expression of intent, and let’s assume honestly meant. But then, as things develop, the person performs as a parent. So you have intention (not a parent) at odds with action (a parent.)
The other possibility is that person says “I’ll be a parent”–and again, let’s assume sincerity– but then fails to perform as a parent. Here again you have intention (a parent) at odds with action (not a parent.)
Question one, then, is how you deal with these situations. Which counts more–intention or action? And I should be clear here that I am not attempting to describe how the law actually works–it works different ways in different places. I’m really thinking about the normative question: How should the law work.
In the first variation–intention (not a parent) and action (a parent) I’d say action trumps intention. (Can I still use the word trump without conjuring up the larger political realm? Hope so.) And given my fondness for consistency (apologies to Emerson) I should say the same thing as to the second variation, right? So if you intend to be a parent but then do not play the role, your action trumps your intention and you should not be recognized as a parent. I’ll just add one elaboration: I might still say that there are consequences of your intention. You might, for instance, have an obligation to provide financial support for a child. But you would have none of the privileges of parenthood.
All this is in considering the first of the two intertwined questions–what happens when you look back and you see that intention and performance diverge?
Now on to question 2. Suppose you have clearly (and let’s assume sincerely) expressed some intention to be (or to not be) a parent. Are you bound by it? Can you change your mind? This question will arise–if at all-before the first question. (I know this might make you wonder about my chosen order.) Suppose on day one you say “I will be a donor, not a parent.” Can you on day 2 say “Nevermind, I would prefer to be a parent?” Or you say “I will be a parent” and then decide not to be.
It seems obvious to me that there are instances where a person has an absolute right to change their mind. If I ask a male friend if he’ll donate sperm and he says “yes” but then calls up the next day and says he’s thought some more about it and the answer is “no” I think everyone will agree that he gets to say “no.” Same thing if I’ve agreed to be a surrogate–if I change my mind before we get started, I can say “no.” But is there a time after which you cannot change your mind? After which you are bound by your intention–either to be a parent or not be a parent?
I think many people would say there is a time after which you are bound (unless there is some subsequent course of conduct that changes things–see question 1 above.) The man whose sperm has been used for ART with the understanding that he will not be a parent cannot (in my view) change his mind. Too much has happened, too much reliance is piled on his decision.
I think there’s a good deal more to say about question 2–about why one might be bound and when one might become bound. But I’ll stop here for now and save the rest for another day.