CONCEPTS AND CONCEPTION: Sara Butler

This week in the New York Times Magazine there is a longish article about a lesbian couple's custody battle and the limitations of the current legal definitions of mother, father, and parent. As the author, Peggy Orenstein notes, "In this age of conceptions that can be simultaneously multipartied and immaculate--using egg donors, sperm donors, embryo donors, surrogates, even posthumous sperm--defining parenthood has become dizzyingly complex." In fact, the article itself does very little to explore just what makes a parent a parent (the idea that it might have something to do with blood relation is quickly dismissed), and certainly doesn't touch the issue of what makes a mother a mother or a father a father. The closest we seem to get is that parenthood, at least when reproductive technologies are involved, is created "by choice" or "intent." If you mean to be a parent, then you are, regardless of your actual biological relationship to the child in question. Of course, one of the many problems with that is that a person's intentions can change over time. How do we decide which point in time counts? Is it at conception? Well, on the one hand, my understanding is that fetal homicide laws rely on that rationale, but on the other hand, women can choose not to be a parent up until birth (and there are men out there who would like to have the same choice). Maybe it's birth, then, although I can imagine some problems with that, too. A person's intent at any time in the past can be pretty difficult to determine, as in the case of the lesbian couple whose story the piece revolves around. E. wanted to have a baby, but was infertile, so K. donated an egg, which was fertilized by an anonymous sperm donor. When she donated the eggs, K. had to sign a standard consent form which waived her rights to any children that resulted from them. Six years later, E. leaves with the kids and K. is left with very little legal ground on which to enforce what she sees as her parental rights. Now, E. argues that her intent all along was to be a single parent, while K. insists that they both intended to be the mothers of the child. Who knows, maybe we'll start seeing more pre-nats in addition to all those pre-nups so that everyone knows where everyone stands. Orenstein also notes "the evolving notion of 'psychological parenthood,'" which some states will award to "a second mom or dad who wiped runny noses and helped with homework--who had a clear parental role regardless of the actual legal relationships." How exactly we can decide who has played a "parental role" (or even what that role might look like) without knowing what a parent is beyond me. Orenstein acknowledges the problems with this:

"Some courts consider psychological parenthood a fuzzy, potentially dangerous concept. What would stop a stepparent, or even multiple stepparents, from suing for custody? Should anyone who is deeply involved in the day-to-day workings of a child's life be able to lay legal claim? Nancy Polikoff, a professor of law at American University and an expert on laws relating to gay parenting, argues that that won't happen. 'The courts that have ruled that way have tried to be very careful about how they fashion a test, so that, for instance, a grandmother wouldn't be able to claim parental rights,' she says. 'You have to show that you have a parental relationship to the child and that the person with the legal rights intended for you to be a real parent.'"

So, "psychological parenthood" actually just goes back to using a parent's intent not just to determine whether or not he or she is a parent, but also who else might be parents. This just can't be right; children's needs should be coming first, not adults' preferences. Orenstein does finally note that, unlike other things that couples fight over when they break up, kids actually have independent rights and needs, but she offers a solution, gay marriage, that is less than complete:

"It is, of course, the children's voices that are missing from this debate. What are their wishes, their feelings, their needs? As with heterosexual couples, gay partners in a hostile split will say and do hurtful things. They will use children as weapons. With no legal recognition of their families, however, without the possibility of marriage or, in some states, second-parent adoption, doing so is just that much easier. Ultimately, it is the children who suffer."

Now, I happen to find some version of this argument (that gay marriage is good for kids because gays and lesbians have kids, too) the most compelling one out there for gay marriage, but it is by no means a total answer to this problem of defining parenthood, which is brought about by the use of reproductive technology just as much as it is by same-sex couples. It's been possible for the baby of a heterosexual couple to have two "mothers" for a while now, and several of the bizarre senarios Orenstein suggests do not necessitate a same-sex couple:

"How do we legally categorize a woman who gives birth to her own sibling? Or mothers who are akin to fathers, providing gametes but not gestating their offspring? What happens in divorce when a man denies paternity of a child his wife conceived, with his consent, using donor sperm? In one mind-bending California case (most of the significant cases have emerged from that state), a couple used a donor egg and donor sperm to create an embryo that was then gestated by a surrogate. One month before the baby was born, the couple split up, and the husband refused responsibility for the child. A lower court found that the girl--whose creation involved five separate adults - had no parents whatsoever. (The decision was later overturned, and the divorcing couple were declared her mother and father. The mother got custody, and the father was ordered to pay child support.)"

Eek. I certainly don't have any great solutions here, but legalizing gay marriage wouldn't totally solve this problem and changing our legal definitions of parenthood to suit adults' not-so-constant wants rather than childrens' rights and needs seems pretty unwise.

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posted by Eve at 11:20 PM | Link |

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