Who’s Your Daddy? Or Your Other Daddy? Or Your Mommy?

Why reproductive contracts should trump genetic ties

The responsibilities of a parent have never been simple. Three recent cases highlight just how convoluted those chains of responsibility can get, and how fickle the courts have been in weighing genetic parenthood against the deals would-be parents have struck with their partners.

Case 1: Sean Hollingsworth and Donald Robinson Hollingsworth are legally married in California and are registered as civil union partners in New Jersey. The two husbands arranged for Donald’s sister, Angelia Robinson, to serve as a gestational surrogate carrying embryos produced using sperm from Sean Hollingsworth and donor eggs. In March 2007, Robinson sued for custody of the twin girls she bore, alleging that she had been coerced into being a surrogate.

Case 2: A November 17, 2009, New York Times Magazine story described the case of a Pennsylvania man identified as Mike L, who discovered through genetic testing that the 5-year-old girl he thought was his daughter was in fact the child of his wife’s co-worker Rob. Their marriage dissolved immediately. Two years later, his former wife married Rob, but she continues to receive child support for her daughter from her former husband.

Case 3: Lisa Miller and Janet Jenkins were joined in a civil union in Vermont in 2000. In 2002 Miller bore a daughter, Isabella, by means of artificial insemination. The couple broke up in 2003. Now Miller, the biological mother of their child, has become an evangelical Christian. She refuses to allow Jenkins visitation rights with their daughter, claiming that such visits violate her new religious principles.

Issues related to genetic ties run through these cases. In the New Jersey case, one of the gay men is the genetic father of the twin girls, while the surrogate has no genetic relationship to them. Nevertheless, the New Jersey Superior Court judge ignored the contract between the surrogate and the gay couple, allowing Angelia Robinson to contest custody on the basis of the state’s famous Baby M case of 1988. In that decision, in which a surrogate mother decided to keep a baby she had carried on behalf of a heterosexual couple, the New Jersey courts invalidated surrogacy contracts, ruling that they were against public policy.

In the messier case of Mike L, the Pennsylvania courts decided that he must continue paying child support because he had agreed to provide the money when his ex-wife told him (before she remarried) that the girl’s genetic father would not support the girl. 

And then there’s the case of the runaway lesbian. When Lisa Miller and Janet Jenkins joined in civil union and decided together to have a child by artificial insemination, it was clear that both would be parents regardless of genetic ties. Now Miller apparently wants to claim that genetics should have priority over contract when it comes to custody. But what if Jenkins were the biological mother and now wished to deny Miller any parental rights on the grounds that she had become an evangelical Christian?

Under Vermont’s laws, the rules regarding child custody and support apply to civil unions as well as heterosexual marriages. Consequently, after a lot of legal wrangling, a state court ruled in November that given Miller’s refusal to obey court orders dealing with visitation, Jenkins should be given sole custody of their daughter. As of this writing, Miller has fled with the girl and is in hiding.

The Vermont court had the right idea. In cases like this, rather than wading into questions of genetics, the law should apply an ethical analysis of everyone’s contractual obligations.

In the New Jersey surrogacy case, the claims of the two Hollingsworth dads should not turn on genetic ties. If Robinson can prove her allegations of coercion, she could make a good case for custody. But unless coercion or fraud can be demonstrated, the surrogate should honor her contract. By axiomatically imposing the outdated notion that the woman who bears a child is necessarily its legal mother without regard to actual contracts agreed upon by consenting adults, the courts are abetting emotional and financial instability for children rather than preventing it.

In the case of Mike L, his wife broke their marriage contract when she cuckolded him and misled him about his genetic relationship with the girl she bore. By violating their marriage contracts, spouses who cuckold their partners have already increased the chances of financial and emotional instability affecting the lives of their children. This instability is augmented by laws that require men in such situations to cut ties with the kids if they want to avoid child support, thus making them choose between their desire for retribution against the cheating spouse and their desire to maintain a relationship with children who might not be theirs biologically but whom they helped to raise.

In a similar Pennsylvania case, when a man named Mark Hudson discovered that he was not the father of the boy for whom he was providing child support, he immediately ceased contact with the boy and filed to stop child support payments. In that case, the court ruled that Hudson’s former wife had defrauded him and rescinded the child support requirement.

In Mike L’s case, it might be argued that he “negotiated” a new contract when he agreed to pay child support and maintained his relationship with the girl he once thought was his natural daughter. Then again, perhaps Mike L was fraudulently induced into the new contract when his former spouse told him the girl’s genetic father would not support her. Was the new contract violated when Mike’s former wife nonetheless married Rob? Just as in the Vermont and New Jersey cases, the decision should turn on interpretations of contractual obligations, not genetic ties.

Parents who violate their marriage contracts by cuckolding their spouses should not be awarded support payments for the resulting children. The good news is that the advent of widespread paternity testing at birth will make situations like Mike L’s less common and will thus shrink the number of children affected by the emotional and financial instability that such conflicts cause. In the meantime, the courts need to look beyond genetics to the reproductive contracts the parties actually adopted. In most cases, the right way to protect the best interests of children will be to enforce the contracts under which they were brought into being. 

Ronald Bailey (rbailey@reason.com) is reason's science correspondent.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Jimmy 'Crack' Corn||

    I always wanted to be first on this site...

  • sloppy||

    second

  • Robert||

    Just keep in mind that if you're contracting for parentage, you pretty much have to treat the children as property.

  • ?||

    Aren't children already treated as a sort of property until the age of majority?

  • Ross Williams||

    Um, if you want to talk about legal issues, why not talk about the rights of the children? Many of these cases turn on their well-being. Right or not, child-support rulings focus on an implicit contract between parent and child.

  • Chris||

    But where does this argument leave the decision about whether the dude who is NOT the father should continue to pay for child support?

    Though I agree that the decision should always lean toward what's best for the child, it's not always cut and dry.

    How does the "best for the child" argument work in case 2? Or Case 1? Whose to say that the 2 dads wouldn't make better parents than the supposed biological mother?

    In non-traditional situations, "what's best for the child" isn't cut and dry.

  • LoboSolo||

    Child support guidelines have nothing to do with the costs of raising a child. Therefore, child support rulings have nothing to do with any "implicit contract" between parent and child.

    There should be a presumption of equal custody between the parents whether that means a rotation every week to every couple of years ... then any "implicit contract" is fulfilled by both parents taking turns caring for the child without a punitive transfer of funds from one parent to the other.

    I'll stop here but I could go on for pages.

  • ||

    Anybody here give a shit about justice? The genetic father should pay child support...period!

  • ||

    The best custody resolution I ever ran across was a judge here in West Texas who gave joint custody, but ordered that the children would stay in the house, and the parents would rotate in and out.

    Who can deny that having kids pack up and move back and forth between parents is better for them than what he ordered.

  • ||

    Urgh. Who can deny claim . . .

  • Brian Sorgatz||

    I applaud the wisdom of Ronald's essential point that the logic of law and justice should trump biology. In light of that principle, let's reconsider Roe v. Wade for men. And fellas, let's not disclaim our reproductive freedom out of irrational chivalry, mmmkay?

    If, perchance, the above link doesn't work, try this one instead. (I'm working through DNS issues on my blog.)

  • LoboSolo||

    Here is the link to the National Center for Men's page on it.

    Don't hold your breath for men getting equal treatment.

  • ||

    Believe me, as a divorced father I am very sensitive to men's rights, but I do not see how a man's contribution to a pregnancy in any way equates to a woman's. Basically he is engaging in a physical activity for ten minutes, which by the way is FUN, and then the rest is up to her. I do not see how he has the standing to compel her to carry or abort, however if she decides to carry, I don't see how it should be his financial burden if he wanted to abort.

  • nanda||

    I must congratulate Rob, who is the real winner in his particular situation. To father a child and trick another man into supporting it is an admirable feat. It does not get any better than that.

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  • ||

    It seems like maybe those old traditional mores we threw out in our enlightenment may have had some practical value to them after all.

  • ||

    Contract law makes sense when you're talking about a surrogacy contract, or when the parties to a marriage have entered into an explicit agreement, pre- or post-nuptial, which sets out what happens with respect to custody if there is a baby conceived by someone else. Where the parties have not made such an agreement, any terms imposed by the state are not voluntary and not contractual.

    Here in California, one of the terms of the "marriage contract," if you want to look at it as a contract, is that any child born during the marriage, while the parents are living together, are deemed to be the children of the husband whether they are genetically his children or not. There may be exceptions where, say, the wife is carrying the child as a surrogate for someone else, but not where the child was secretly fathered by someone else.

    Second, contractual remedies are not really appropriate here. Contract law provides monetary damages for breach of a contract. Assuming that the contract includes a requirement of sexual exclusivity, if Wife breaches that term and gets pregnant by someone else, if the couple was trying to have kids anyway, it doesn't matter that much whether the child was fathered by Husband or not. He has suffered no monetary damage, because he'd still have to pay the same amount to raise the kid even if it was his. If he was using birth control because the couple did not want kids, then maybe he could sue his wife for the cost of raising the kid as damages for her breach of the exclusivity clause, but he could not sue Wife's lover because there is no contract between Lover and Husband.

    I agree that contract law makes sense when interpreting and enforcing surrogacy contracts, but it does not apply so well to marriages.

  • ||

    there just seems to be something a little bit off about case 1.
    coercion? fraud? uhm proof?
    why destroy your relationship with your brother and his husband, possibly other family members as well? if this was such a burden then why would she even want the baby girls at all?

    Unless....that was her plan from the start. Something to think about. To bad the judge didn't.

    I hope this case gets appealed.

  • louboutinvips||

    Anybody here give a shit about justice? The genetic father should pay child support...period!
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  • ||

    Even if the genetic father is a sperm donor who has given up all rights to the child? How about if the genetic father agrees to give up parental rights in order to let someone else adopt the child? That's a pretty extreme position, and one that would pretty much mean the end of using sperm donors and surrogates.

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  • Keith R. Wood||

    Courts have traditionally destroyed the relationship between child and noncustodial parent (generally fathers), while at the same time demanding that NCPs pay support.

    Studies have shown that parents who aren't forced out of the kids' lives rarely fail to pay their child support, but the courts don't care -- they won't enforce visitation.

    Behind most "deadbeat dads" you will find "malevolent moms," often women who destroyed the marriage through cheating, and don't want the kids to be constantly made aware of which partner was the honest one.

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