What We Can Learn From Harry Potter

I willingly confess to being a fan of Harry Potter and you can bet I’ll be at the movies at midnight tonight to see the final episode.    Even more than the last book, this last movie seems to mark the end of an era.   As a tribute to that era, I thought I’d think about what we might learn from Harry Potter about the subjects I focus on here.   (I’m going to assume that everyone knows the stories by now and there are no “spoilers” in the same way as you cannot very well ruin the end of Hansel and Gretel.)

First off, Harry demonstrates the importance of DNA.   There are countless references to the genetic legacy he carries from both Lily and James Potter:  Lily’s eyes and compassion and James’ hair and propsensity to break rules come to mind. 

Objections

There are a number of possible objections to the suggestion in my last post. (Put briefly, I suggested that we not consider men who participate in one-night-stands to be fathers of resulting children. This is part of a longer thread that you can pick up here.) I tried to anticipate and respond to the most obvious objections in a couple of earlier posts. I stand by what I said there so may want to go read that now. It will help put the rest of this in context.

In addition to those points, I’m sure some will argue that declaring that these one-night-stand men are not fathers will encourage men to engage in sex irresponsibly. The rationale goes something like this: When a man is considering whether to engage in the one-night-stand he makes a cost/benefit analysis. On the benefit side is whatever immediate gratification results and perhaps some possibility of a longer term relationship. On the cost side are risks of disease, perhaps of assorted social consequences and, as it stands now, of inadvertently becoming a father. My proposal diminishes the last cost and by doing that, diminishes the overall cost. When you diminish the cost of a behavior it will have the effect, all other things being equal, of increasing the occurrence of the behavior. Put slightly differently, the possibility of parenthood is a deterrent and I propose to remove that deterrent.

Better for the Kids?

For the last several posts I’ve been working out an argument that a man shouldn’t be considered the father of a child who results from a one-night-stand. That’s really just a specific iteration of a more general argument I want to make that genetic linkage ought not to determine ones status as a parent. If you’re just joining this, you might want to jump back a few posts and work forward to here. You might also want to check out the various disclaimers I set out, just so you’re clear about what I am and am not saying.

For now I want to keep the focus on what my proposal might mean for children. Though that is not the only perspective that matters to me, it’s the one many people will want to consider first. There are two related points I want to make. The first I spelled out already a couple of days ago. Here’s the second.

Even if he isn’t a father, the man who provides 1/2 of a child’s genes might be an important person for the child to know about and perhaps to know. If that’s so, then the law should be structured to make that a more likely outcome. Though it may seem counter-intuitive, deciding that the man is not a father can encourage just this.

I’ll consider this in the specific case of a sperm donor first, to lay out the argument. Then (probably tomorrow) I’ll move to the more general case.

Remember that in some states a donor is a father (unless of course the woman is married.) New York is such a state, as Massachusetts. In other states, a donor is, by operation of law, not a father. (California and Washington are examples.)

Now one main reason women use donor sperm to conceive a child is to create a family that does not have a man present. (The other would be women involved with men who could not produce sperm. I can come back to that another time.) A woman inseminating with donor sperm in New York might therefore worry about possible claims of paternity by the donor. (A good lawyer would probably tell her she should.) The surest way to protect against this eventuality is to use a truly anonymous donor, one who can never be traced back.

By contrast, a woman in Washington need not have this concern. Even if she uses a known donor, the donor is not a father. Surely this means that a woman in Washington is more likely to consider and ultimately choose a known donor than is a woman in New York. Consequently, children in states where a donor is not a father are more likely to have access to information about the donor than are those in states where the donor is a father. So if the goal is the increase the likelihood that children will have access to this sort of information, then “donor is not father” is the better law.

A Moment’s Pause

This post is the electronic equivalent of a deep breath before plunging into the water. For the last few days I’ve been working at framing a question. Essentially I’ve asked whether a man who participates in an isolated incident of casual sex should be considered the father of any resulting child. I want to explore what happens if we say “no.” I want to suggest that might be the best answer.

This is a specific instance of a broader and more significant proposition–that we should abandon genetic linkage as a factor in determining parentage. Perhaps the fact that one is the source of egg or sperm should not figure into consideration of whether one is a parent.

Rethinking Old Rules

Yesterday and the day before I began considering the tensions generated by the growing use of ART and the accompanying legal rules about parentage that accommodate that practice. To put it briefly, ART has given rise to a notion of intention to parent (and the corresponding intention not to parent) as critical factors in determining parentage. Using ART to create a child is typically part of a structured deal that includes specifically defining who will be (and who will not be) parents to the child. The hope is that the desired results can be reached regardless of the results that might have been reached under application of traditional law.

While the notion of an intentional parent may be a useful concept that allows commercial ART to flourish, it is often at odds with our traditional laws about parenthood. For example, suppose a woman and a man meet at a party, spend a few hours together during which they engage in sexual intercourse, and part forever.

The Best of Intentions

Yesterday I wrote, at least in part, about the problem of intentions. I want to be more concrete about intention and how it figures in the “who is a parent” problem.

First, a specific example: I ask my child to clean his or her (I have one of each) room. She or he says “I’m going to.” This is not an acceptable answer to me. There are too many ways we can go wrong. For starters, I cannot tell if the intention is sincere or not. Even if it is sincere, I cannot tell whether my idea of cleaning a room will match up with the child’s. Even if it does, I worry at that some later point the child will either forget the intention or substitute a different one in its place. And if, at the end of the day, the room is not clean and I confront the child, I am all too likely to get a dispute about exactly what the original conversation was. And so, at least in this context, I do not care about intentions. All that matters to me is actual performance.

Not Just A Hobgoblin

Consistency has its virtues. It can yield both predictability (because I know that if I do A, B will follow) and uniformity (because if both you and I do A, B will follow for both of us.) The quote referenced above condemns not consistency per se but only foolish consistency.

Why turn to this topic here? Remember, my overall purpose  here is to examine and perhaps even reconstruct the law that tells us which of us are parents. One of the things that should be apparent so far, is that the law about this is anything but consistent.

Consider just the sperm donor cases I’ve talked about. In one Pennsylvania case, the sperm donor is not a father. But he would probably have been a father had the case arisen in a different state (New York, for example).

News in Brief: Same Melody, Different Words

This is really a variation on the theme of yesterday’s post.

For some months now the House of Lords in the UK has been debating legislation that revamps British law about assisted reproductive technology (ART). (Indeed, it was in the course of this debate that the “twins-got-married” story surfaced.) There are a number of different provisions, but a lot of the coverage has focused on the parentage status of lesbian and gay couples using ART.

News in Brief–European High Court on Lesbian Adoption

This week the European Court of Human Rights ruled that the regional authorities in France acted improperly when they refused to allow a single lesbian to adopt a child. (That first link is to the actual opinion of the court, but here is one to a much briefer news account.)

While France allows single women to adopt, it had denied the request of this particular woman, who just happened to be a lesbian. France contended that the denial had not be because she was a lesbian, but rather because of the lack of a”paternal referent.” In other words, the problem was there would not be a father.

News in Brief–Profile of 7 Time Surrogate in UK

Here is a profile of Jill Hawkins, a woman who has given birth to seven surrogate children and is working towards her eighth. She is in the UK where surrogacy is not a commercial enterprise. (You can only pay a surrogate “reasonable expenses.” Here the writer says the surrogate has been paid around 12,000 pounds per pregnancy–That’s over $20,000 at the current exchange rate. Which doesn’t exactly make it seem like pure altruism.)

Under British law, there’s no binding agreement between the surrogate and whoever is paying her.