Multiplying mommies and daddies

Before we redefine legal “parenthood” we need to know how this affects the best interests of children.Monday, 15 November 2010

James S. Cole,

Recently the issues surrounding same-sex relationships in which children are involved have expanded from whether two persons of the same sex can be legally both mother and father to whether or not legal parenthood can include more than two persons.

In 2007, courts in several jurisdictions ruled that three persons could be legal parents of one child. In one of the cases, a lesbian couple separated in the course of raising two children who were conceived in the 1990s using donor sperm from a friend of one of the couple. The biological father continued to visit from time to time as a father, however, and he contributed voluntarily to the support of his children. When the lesbian couple broke up, custody was put in issue between the women, and child support was put in issue for the two noncustodial persons in the arrangement. The Pennsylvania appellate court ruled that in the circumstances, the trial court correctly found the birth mother was better fit for primary custody than her ex-partner. It further ruled that the father and ex-partner should have visitation rights and that the father and the ex-partner were obligated to pay child support. The best interests of the children would be furthered by this result, the Court wrote.

In other decisions, the best interests of the child or children were cited as the reason for holding that the status of “parent” would be accorded to three people. The circumstances in these cases indicated an ongoing role as parents played by two women and a man, and to cut off the legal rights of one of them would be detrimental to the children.

Such decisions are sufficiently novel to allow the press to sensationalize them, as the Boston Globe recently did with the headline, “Johnnie Has Two Mommies—and Four Dads.”

Law professors who advocate gay rights have now issued calls in legal journals for legal redefinitions of “parenthood” to address gender and the number of people who are recognized as legal parents. See, for example, a press release about the work of Susan Appleton, of Washington University in St. Louis, Missouri, “Gender Has No Place in the Legal Definition of Parenthood”.

Legislation is needed, these academics contend, to bolster the legal foundation for ad hoc court decisions on these topics. But there are considerable difficulties for them to overcome in this enterprise. The most important of these is this: is such a redefinition in the best interests of the children who are to be covered by a proposed law?

When IVF and surrogacy were perfected in humans in the late 1970s, the traditional concept of parenthood was compromised. Many were the ways in which IVF and surrogacy arrangements have gone awry. Over a quarter-century’s worth of cases have resulted. A 2005 article in the Journal of the Center for Families, Children and the Courts summarized the legal results in California, where the process is as advanced as anywhere, in this way: “Reproductive technologies have further deconstructed the traditional definition of “family” by dividing parentage into three components—genetics, gestation, and intent.” (J. Wald, “Legitimate Parents,” 2005 J. Ctr. Fam. 139, 143.)

The courts usually say that the touchstone in these matters is the best interests of the child. But where in “genetics, gestation, and intent” do we find the child’s best interests? Attorney Wald found that the courts had subsumed them into “intent.” As one case put it, “Honoring the plans and expectations of adults who will be responsible for a child’s welfare is likely to correlate significantly with positive outcomes for parents and children alike… [T]he interests of children, particularly at the outset of their lives, are ‘[un]likely to run contrary to those of adults who choose to bring them into being’.” (J. Wald, id. at 145, 146, quoting Johnson v. Calvert, 851 P.2d 776, 783 (Cal. 1993) [citation from earlier law review article omitted].)

How convenient.

In some cases, California courts simply wish away what is best for the child in terms of stability, support, and care by sweeping the child’s interests under the rug of what the adults in the situation desired when they initiated IVF and surrogacy arrangements.

It is not going to be so easy for legislators to do the same. Legislators must view the situation as a matter of policy, considering many more factors than those in any one particular case. Difficulties arise that preclude a simple assumption that the best interests of children are aligned with the desires of the adults involved.

First, there is a question whether social science research should be relied upon. Susan Appleton, the Washington University law professor mentioned above, has made the remarkable assertion that social science research should play little or no part in the project. In other words, she says not to bother with what research might indicate in respect to the best interests of the child. Why not? Because “studies looking at sexuality, gender performance and family characteristics are fraught with value judgment, and findings about overall wellbeing are often met with counter-evidence, among other problems.”

This is a remarkable example of throwing out the baby with the bath water. One should always give scrutiny to the methods used to reach conclusions in social science studies, just as in the hard sciences of biology and chemistry. But one does not simply abdicate scientific study because sometimes it is done badly. It is not easy to avoid the conclusion that the good professor simply does not like research results that undercut her case.

What does the professor propose to use in place of empirical research in order to find out what the best interests of children might be? Her ideological commitments? Religious beliefs? Something else? Her assertion appears as a type of intellectual sour grapes, and it is puzzling that a great institution dedicated to the primacy of reason and the discovery of truth—in fact, the home of one of the best medical schools in the United States–trumpets it in a press release.

An example of how the interests of adults can diverge from the best interests of children is found in the 2010 case of a couple in Vancouver, British Columbia, who demanded that a surrogate mother whom they had hired abort the baby when it was diagnosed with Down’s Syndrome. The couple announced that they not support the child or have any contact with him or her if she refused. The surrogate mother aborted.

Putting aside the issue of how much “choice” was actually available to the surrogate mother in regard to the abortion, there is also the issue of whether the biological parents’ reaction to the news of Down’s Syndrome was in the best interests of the child. If the child had been allowed to live, how could leaving the child without any support and a stable two-parent family, as the biological parents announced that they intended to do, be in the child’s best interests? Legislation that simply ignores the difference between adults’ desires and children’s needs is going to be cruel to children.

Finally, it is debatable whether IVF and surrogacy can ever be in a child’s best interests. Recent accounts have been published of IVF children searching for their genetic fathers because they ache from a void in their psyche from not knowing their antecedents. This is an unforeseen psychological problem that reaches far deeper than the recent Hollywood movie, “The Kids Are All Right,” might indicate.

Surrogacy has its own dark side as well, starting with the commercializing of the process of producing children. How commercialized can the production of children get? Try outsourcing to India! Embryos are being sent there from the US for implantation.

Although the right to procreate has long been adjudicated as a federal constitutional right by American courts, the right to procreate by means of IVF or through surrogacy has not. More research is needed on whether it is beneficial from the viewpoint of the children involved. And of course the research ought to be scrutinized for bias and all the other infirmities to which social science is subject.

New legislative attention to parenthood issues raised by IVF and surrogacy is certainly appropriate, but the goal should not be ideological commitment to redefining parenthood. Rather, legislators should ensure that the best interests of children are truly served.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.

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