I’m going to turn away from the current discussion (which might have run its course or gotten out of hand) and return to something I’ve thought about for a long time. I’ve also written about it here and elsewhere–with something less than totally satisfactory results.
This is rather a large topic to tackle–perhaps not so well suited to the blog format (where believe it or not I try to keep things in manageable bites). The best I can do is to put it in parts, I think, and to try to make each part enough of a whole to serve. But I have taken the liberty of calling this one “Part I” because of my firm conviction there will need to be a “Part II” and very likely more parts beyond that. (And no, the Roman numerals are not an homage to the Superbowl, but since I’ve brought it up–Go Hawks!).
Okay–so here we are. As I trust everyone knows, the main topic of this blog is how we do and should determine legal parentage. And as most/all of you also know, I have a pretty firm view on this: I’m inclined towards using something at least akin to a functional or de facto parent test. In other words, if you have acted like a parent–if you have in fact created a parent/child relationship (defined psychologically and socially) with a child, then the law should recognize and protect that relationship. It should do so primarily because this will generally serve to advance the well-being of children who must be able to rely on those relationships which sustain them. You can see some cases discussing this if you look back to a couple of posts about new cases from WA that I put up in late December. (It’s hard for me to link to them just now. I’ll do that later today when I’m on a different machine.).
Now this approach–the functional or de facto approach–works fine with kids who have been around for a while. If you’ve got a ten-year-old you can see who her/his psychological/social parents are. You can do that for a three-year-old, too. And even a six-month-old. But what about a new-born? Who are the legal parent(s) of a newborn?
Let me start by noting that I do see that we want newborns to have legal parents. Maybe I should examine this proposition more closely than I am right now–I could always come back to it. But given that legal parents are those charged with both responsibility and decision making for the child, it seems to me we want someone in the goal from the get go.
Now it’s easy for me with my functional test to get to 1 legal parent for the newborn–the woman who was pregnant/gave birth. I won’t say there is a child before birth (note there’s a big issue I’m skipping over–when is it a child–but I want to go forward here). During the course of the pregnancy the woman who is pregnant bears enormous responsibility for future well-being of the child-to-be. She stands in a unique relationship to it. And I’d bet that if you took a newborn and put her/him in a room with four women, one of whom was the woman who gave birth to him, you’d find some signs that the newborn distinguished her from the other women. (Anyone know if this is actually true? I haven’t seen a study, but I’m still convinced it’s likely so.).
I do understand that even this point–which for me is a simple starting point–is controversial. It means that pregnancy matters. It is not the position taken by most (all?) of those who advocate for the use of surrogacy. But I find it impossible to say that pregnancy doesn’t matter. Indeed, consider what women go through to be pregnant/give birth–sometimes to children they will have no genetic connection to.
Anyway, let me move off of that starting point (with the understanding that anyone can drag me back there to discuss further.). The question for me is whether there can be a second legal parent at birth and, if so, how is that person identified.
I see the appeal of having two legal parents at birth. Partly this is about meeting people’s expectations–lots of time pairs of people want to be parents together. Partly it may just be copying the traditional (and generally biological/genetically based) model. But I’ve had trouble getting there. One obvious way–to count the genetic father as the second legal parent because he is the genetic father–is entirely unacceptable to me. (I don’t mean that a genetic father cannot be the second legal parent. I just wouldn’t award him that status based on his genetic connection alone.). So I wrote an article that is called “Counting from One” that actually suggests that maybe we should just start with one.
But I’ve never found this wholly satisfactory. And so I’ve been trying to work out a different approach. Again, there’s an obvious candidate–the intentional parent. Suppose there is a second person who had intended to be a parent to the child and that intention was shared by the women who just gave birth. A doctrine recognizing intentional parents could give that person legal status at the birth of a child.
But I have problems with intention alone (and “alone” is a key word here) being a marker for parenthood. And that’s where I’ll take up next time.
Thanks for bearing with me.