The two core legal relationships in family law are marriage (legal relationship between adults) and parenthood (legal relationship between adult and child). Over the years there’s been a lot here on the blog about the connections between those two relationships. But there seem to be an infinite number of ways to come at this and recently I’ve been pondering a couple of slightly different ways to think about this.
First off, I wanted to briefly comment on a tension that arises about the connection between marriage and parenthood in litigation around access to marriage for same-sex couples. There’s been a lot on the blog about the marriage cases and the role parenthood plays in them. The very recent MI opinion is a fine place to see this.
On the one hand, both side in marriage litigation agree that it is best to raise children within a marriage. Now I find this a rather problematic argument to rely on (and I’ll come back to that shortly) but like it or not it is a view that advocates and opponents of access to marriage share. And given that, it’s unsurprising that it’s a view that is affirmed in virtually every court opinion. Continue reading
I’ve been working on a piece of writing–something a good deal more extensive than the blog generally allows–about surrogacy. It’s an effort to look back and think about how views on surrogacy (and the practice of surrogacy itself) have changed over the years. Imagine my surprise when this video appeared on the NYT website early this week. It’s worth a look.
It’s nearly 30 years since Mary Beth Whitehead entered into a surrogacy contract with William and Elizabeth Stern. Baby M is grown and has children of her own. And the world has changed in oh-so-many ways. Does any of this matter in how we think about surrogacy?
The New Jersey Supreme Court’s decision in Baby M shaped how we (as a legal culture) thought about surrogacy in a lot of ways, even though it was a decision binding in only one state. But it was generated in a different time, against a different background. That doesn’t mean that it is meaningless, but it may mean that our understanding of it has or will change. Continue reading
I’ve written several times in the past years about how new technologies have raised the prospects of a child having three genetically related parents. Most of the discussion has occurred in the UK, but the debate has now reached the US.
The idea here is that egg cells have both mitochondrial and nuclear DNA. Mitochondrial DNA is passed from only from mother to child (and indeed, as I recall it is used to track lineages, sometimes over hundreds of years.) Fathers do not contribute mitochondrial DNA.
Nuclear DNA in an egg combines with DNA from the sperm when the egg is fertilized. Nuclear DNA controls virtually all of the things we think about when we think about genetic heritability–height, weight, eye color, hair color and so on. I believe that, to the extent more complicated things are also controlled by DNA (say tendency towards cancer or alcoholism) it is also nuclear DNA that matters.
But mitochondrial DNA is important. Continue reading
I’ve got a couple of recent posts up about the marital presumption. I thought I’d add another case–this one from Mississippi. It’s not a marital presumption case, as you can see. (If anyone can help me understand why it isn’t, I’d be grateful. Is it possible that MS no longer uses the presumption? Do tell if you know.) But the facts are similar to the recent CA case I wrote about and there is a presumption at work.
So here’s the story. Anne and Jake had an intimate relationship before the married. But during that time, apparently unbeknownst to Jake, Anne had a one-night stand with Tommie. Anne got pregnant. Tommie suspected the child might be his, but he knew about Jake, too. Jake didn’t know about Tommie and so assumed that he was the father of the child.
Anne and Jake got married in June 2004 when Anne was 17 weeks pregnant. Continue reading
I wrote a recent post about studies–social science studies about parenting, etc. I sort of feel like I’m in a “can’t live with them, can’t live without them” sort of spot–they frustrate me in many ways, but I’m not prepared to say we don’t need them or shouldn’t consider them.
Perhaps the point I’d make (though you can just go read that post) is that we need to view them critically–all of them, even the ones with conclusions we like. There are, after all, better and worse studies. Continue reading
There has been a lot of discussion of the marital presumption here, even though I actually haven’t posted on it recently. (It’s part of the discussion in the comments on the last post–one about surrogacy–for example.) Since this very recent case from Michigan crossed my desk, I thought I’d use it as an opportunity to offer a few thoughts. (You can find much more discussion under these posts if you like.)
A few explanatory words, first. (Some of this is quite repetitious if you have been reading the comments closely, for which I apologize. But for others this might be useful.)
The marital presumption is an ancient one–quite literally hundreds of years old. The idea (originally) was that if a married woman gave birth, the husband was presumed to be the father of the child. Continue reading
There’s been conversation here from time to time about what it means to be a “biological parent.” I think that the term is at best murky, because I think a woman who gives birth to a child–whether genetically related to the child or not–might be a biological parent. Others disagree and, I think it is fair to say, view “biological parent” as essentially the same as “genetic parent.”
We’ve also disagreed (very recently) about whether the woman who gives birth has a biological relationship with the child. I think the division here is pretty much the same split about whether “biology” includes more than “genetics” in this context.
On one level this is just a debate about language and one might say that everyone is free to use the language they prefer, so long as they make its meaning clear. Continue reading