Let’s Try That Again–More About Intention

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.



10 responses to “Let’s Try That Again–More About Intention

  1. I think that when there is intention to be a parent there needs to be a responsibility that is accepted that requires action. That needs to be clear and understood by anyone intending to be a parent. In the case of a sperm donor to me their intention is to just be a provider of sperm. Beyond that the only thing I believe they should be responsible for is providing access of their familial medical history to any child(ren) that are produced from their sperm. I agree with you that if the relinquish their responsibility to parent they should never have the ability to become a legal parent. If the donor along with the child choose to have some type of relationship that is up to them.

  2. I agree, your last post was a bit muddled when you talked about how a child feels about intention. Thank you for clarifying. Yes, I don’t think there are any issues from a legal standpoint with what you’ve written. But a more interesting topic is how this would apply (in law) to a person or persons who conceive via coitus or outside of registered clinic who says they didn’t intend to parent.

    • Karen,

      I’ve seen a lot of this lately it’s marketed as Natural Insemination”. If donor insemination was banned this is the direction I could see the practice going in with unregulated sperm donation. Now egg donation would be more difficult from a biological perspective but sperm donation could definitely see an increase in these practices. This is why I don’t see sperm donation ever going away and I’m not sure how you regulate or would even ban it all unless you required both parents who say they are a babies parents have DNA tests conducted prior to a birth certificate being issued.

      • I think you’ve touched on something I think about a lot. I know there are many who are disturbed either by the general practice of sperm banks or by the for-profit/large-scale practices. As I said in an earlier post, I think thoughtful regulation would be a great idea. Others would prefer to close them down. But there is, as you say, and underground/DIY aspect to this and you won’t make that go away, no matter what. The more restrictive the above-ground market, the more folks will go underground. To my mind this is more dangerous and problematic than any even loosely regulated market. This seems like a very pragmatic view, but is there anything wrong with pragmatism?

      • I vote for testing people to prove they are not lying about being the parents of the person before they bring them home. There is a perfectly legal method of obtaining parental rights over someone else’s offspring which is guardianship or adoption and millions of people obtain their parental authority and custody that way so it’s not like its asking too much of a person to be on the up and up about who they are in relation to the person they wish to raise. It should be of no matter that the parent does not want to raise the person or that someone else wants to raise that person – still for that person’s protection and for the simple fact off keeping public health records accurate people should prove their parentage with a dna test before being formally acknowledged as a person’s mother or father.

  3. Well you are overlooking the biggest factor of whether they actually are a parent or not. Because if you are someone’s parent it does not matter what you want or intended you simply cannot get away from the fact of the matter that you embody the essential characteristic that would lump you into the group of people who are considered parents whether you like it or not.

    Even a sperm donor cannot escape that cold hard fact that once he has offspring he falls under the umbrella category of parent and it would not ever be considered a lie to be a lie to say that person is a parent because the primary definition of parent is an organism with offspring – the source or origin of another similar organism. Parenthood by definition is not the act of raising but the state of having had offspring. So what should we do when a parent does not intend to raise their kids and function as we expect parents to function or what do we do when someone is not a parent but behaves the way parents are normally expected to do – even going so far as to gain legal recognition as a quasi marital (step) parent or adoptive parent.

    • The problem here is that we look at the issue so differently. I am concerned with who gets to be a “legal parent.” That’s a very specific thing. Who gets to be that is (unsurprisingly) defined by law. Law can take intent into account or not–and so it is fair to ask “should it.” Now once you are someone’sgal parent, then things change and I’m not really focused on that (for now). Just on how you get recognized as one.

      It seems to me that you are looking at a different question–so for you it is obvious that a sperm donor is a parent. But it is not the case (and here I am speaking just factually/descriptively) that a sperm donor is necessarily a legal parent. He may be, he may not be–depends on what law applies and on surrounding circumstances.

  4. i really don’t think the law should take someone’s intent into account at all.

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