Back to Nature, 2

What better way to bring summer to a close than with a sequel?   Works for Hollywood.   A long time ago I wrote the first post with this title and I’ve written about nature at  other times, too.   But the idea of a natural order of things plays such a strong role in this area that I think it is worth revisiting.

Here’s what I think is at work:   It seems to me that for many people there is an assumption that there is a natural order to things that sets a default.   The default requires no justification–it just is that way.   However, any change from the default must be  justified.   In particular, what you see here a lot is the argument  that the people who contribute DNA to the creation of a child are “naturally” the child’s parent.   Thus, there’s no need to explain why this is a good system to adopt.   However, any change from that–recognizing people who do not have DNA links–must be justified. 

Back to Nature?

This article is from the Sunday New York Times Magazine that will appear April 4.   It’s an extended discussion about recent findings about same-sex pairings in the animal world.   It’s recurrent focus happens to be female-female pairs of albatross who appear to 1) mate for life and 2) manage to raise chicks.  

I’ve written before about the ways in which people invoke nature when discussing parenthood.   Indeed, some would argue that parent is first and foremost a natural category.  What I mean is that parents are defined by nature and not by law or by cultural practice.   I think this view lies behind the assertion that a genetic connection is what should define us as parents:   “Natural parents” generally is understood to mean those with a genetic connection.  

The article discusses the different ways in which what is natural can be used in discussions of political or cultural questions.   Some will say that perhaps it is okay to be lesbian/gay because it is natural.  (This is the flip side of the argument that lesbians and gay men should be condemned because they engage in unnatural acts or commit crimes against nature.)  

What Makes DNA So Difficult?

After reading the NYT magazine article, writing about it a bit and then reading the comments to my posts and on the magazine site, I’m left with this question:   What makes DNA so difficult?   Surely it must have seemed that having reliable and relatively inexpensive DNA testing would make legal parentage questions easier.   Why hasn’t it worked out that way.

As one commenter on this blog pointed out, DNA does make determination of biological parentage easy—it’s a scientific test that yields a simple yes/no with a very high degree of reliability.   It guarantees that all children will have two parents (one male and one female.) 

But its very strength is also its weakness.  While DNA gives us a clear and clean answer, the lives of many children are not so clear and clean.   DNA is  inflexible and fail to account for the diversity of children’s lives.   

So Maybe Being A Parent IS All About Sex?

Under the laws of many states (including Washington) and in the Uniform Parentage Act the parental status of some men turns on the precise means by which the crucial sperm entered the mother’s body:  If sperm is introduced via intercourse than the man is a father while if it is introduced any other way, he is not.   I have commented in the past  that this seems a very odd place to draw a line. 

People of differing views might well share this opinion.   If you think genetics is the  crucial determinant of parental status, then the man is a father no matter how the sperm is delivered.  If you think intent is critical, then the man may or may not be a father–engaging in intercourse is no guarantee of intent to parent.   If you tend towards function (as I typically do) then the man may or may not be a father, but it has little to do with the actual delivery of the sperm.   And so on through the tests I’ve discussed.   

Even when I might disagree in substance (as I do with the genetics-is-fatherhood stance) I find it sensible that sex/no sex is not where a line is drawn.  

Lesbian and Gay Adoptions Approved in Uruguay and Germany

Just a couple of quick notes about international developments.  

First in Uruguay, one house of parliament approved legislation permitting adoption by lesbian and gay couples.   The Senate is expected to follow suit shortly   Uruguay would be the first South American nation to approve adoptions by lesbian and gay couples. 

In opposing the measure, the archbishop of Montevideo said “It’s not about religion, philosophy or sociology. It’s something which is mainly about the respect of human nature itself.”  The invocation of nature as a basis for opposing lesbian and gay parentage is noteworthy.   I’ve written before about the unthinking invocation of what’s natural. 

Uncoupled Parents?

I want to pick up on yesterday’s post here.   I left myself with a question–whether there’s a justification for assuming that co-parents need to be or have been romantic partners.   

Actually, before I tackle that, there’s one wrinkle to discuss, which reveals a bit more complexity.   Long ago on this blog I spent a good deal of time discussing the parentage of a child whose conception is the result of a one-night-stand.   Quite apart from what I think the law ought to be, this is a situation in which the law generally does recognize both the man and the woman involved as legal parents even though they are not and have never been romantic partners in any meaningful way. 

Two Parents But Never a Couple?

I’m still following my earlier thread (and still writing off-line, so not really able to add the links I’d like.)   The last post on this topic spelled out at least one main difference between the test for parentage adopted by an Oregon court and that adopted by the DC legislature.   While both tests will clearly benefit lesbian couples raising kids, the DC test is more expansive and will apply to others as well.  (If you look back to that post, check out that Venn diagram.  The additional people covered by the DC test are those in that outer ring.)

Having laid all this groundwork, I want to consider an underlying question.  Is there  any reason why parents need to be (or need to have been) romantic partners?   One major feature of the DC statute is that it allows people who have not been married or partnered or civilly united or romantic partners in any way to become co-parents. 

Rationing Health Care/Rationing Parenthood

There’s a discussion current in the UK just now about access to IVF under the UK’s National Health System.  This little commentary is a reflection of that larger discussion, and I’ll use it as my taking-off point. 

The question currently raised in the UK is whether the NHS should cover IVF.   IVF, like a lot of assisted reproductive technology, is fairly expensive.   Health care resources are limited.   Given these circumstances, perhaps it is reasonable to discuss whether IVF should be covered as necessary medical care, or perhaps doled out on some discretionary basis. 

In the view of the commentator, the problem is that some (many?) people need to resort to IVF because they chose to wait to have kids.  In other words, need for IVF is the logical consequence of free choice.   The implication is that a woman who wants to use IVF because she chose to wait is less deserving (and hence, should be further back in the line) than a woman whose need for IVF is unrelated to her choices in life.   

Natural Rules

I want to pick up from yesterday’s post, which is part of a longer and more sporadic thread about the role of nature in shaping family law.    The general point is that while I am a big fan of nature generally–how can one not be, living in the Pacific Northwest?–I’m quite skeptical about invocations of nature as the source for modern family law.  

There are really two aspects to that skepticism.  First, I’m not sure we know what is naturalfor humans.   At the very least, I think it is clear that different people have different ideas about what is natural and how nature effects parenting. Thus, some will say that men are naturally non-monagamous, and that an optimal outcome for a male is to have someone else raise the children he is genetically related to.   But other people will say that parents who are genetically related to their children will be superior to all other parents. 

Polyamory and the Number of Parents

Dedicated readers will notice that I’ve removed my “summer time” post.  Home again.   But all the attendant travel and such has really disrupted my posting.  Sorry about that.  I’m going to try to pick it up again starting now.

There was recently (last week maybe?)an article in Newsweek on polyamory.  Perhaps for the mainstream media, polypeople are the new lesbians and gay men–the new cutting-edge-of-the-family.   Anyway, in the past I’ve discussed the number of parents problem a couple of times.   Polyamorous families or clusters obviously present at least the potential for this problem.  

Typically the law prefers to find two and only two parents, and in the historical ideal, that would be one female (the mother) and one male (the father).   It’s pretty clear that in the social world, the two parent model, while common, is hardly the only configuration.