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

Reproductive contracts and the best interests of children

The question of what it means to be a parent has never been simple. But three recent cases highlight just how complicated things can get—and how inconsistent the courts have been in weighing genetic parenthood against the deals struck by would-be parents (gay and straight) 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 October 2006, Ms. Robinson bore twin girls whom she turned over to their two fathers. In March 2007, Ms. Robinson sued for custody alleging that she had been coerced into being a surrogate. A New Jersey court ruled last week that Ms. Robinson, who has no genetic tie to the twins, is their legal mother and can sue for primary custody later this year.

Case 2: A November 17, 2009 New York Times magazine cover article described the case of a man identified as Mike L in Pennsylvania 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 but the cuckolded husband Mike L testified that he agreed to child support when his cheating former wife said that the girl's genetic father Rob would not support the girl. Two years later, his former wife married Rob, but 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, and refuses to allow Jenkins visitation rights with their daughter, claiming that such visits violate her new Christian principles.

Issues related to genetic ties of the various parties 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. The court ignored this factor and chose instead to follow the 1988 precedent set by the state's famous Baby M case. In 1986, William and Elizabeth Stern had contracted with Mary Beth Whitehead to bear a child for them by means of artificial insemination using Mr. Stern's sperm. Once Whitehead gave birth, she broke the contract and decided that she wanted to keep Baby M. Ultimately, the New Jersey Supreme Court invalidated surrogacy contracts as against public policy, but sent the case to a lower court. The lower court eventually decided on the basis of the "best interest of the child" to award custody to the Sterns while giving visitation rights to Whitehead. In 2004, the Sterns' daughter Melissa formally terminated Whitehead's parental rights.

In the messier case of Mike L, Pennsylvania courts decided that he must continue paying child support and that the girl's genetic father, Rob, now his former wife's husband, was not legally obligated to do so.

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

In the case of the runaway former lesbian, Vermont's civil union laws are explicit that the laws regarding child custody and support apply to civil unions in just the same way that they do in the case of heterosexual marriages. Consequently, after a lot of legal wrangling, a Vermont court ruled in November that given Miller's antics, Jenkins should be given sole custody of Isabella. Miller has now fled with Isabella and is in hiding.

Rather than wading into questions of genetics, why not apply an ethical analysis of contractual obligations to these cases? In the New Jersey surrogacy case, the sister agreed to bear children using donor eggs and sperm from her brother's partner for the male couple. After the court ruled that she was the legal mother of the twins, Ms. Robinson reportedly said it is "one more step in helping to insure stability and peace in the lives of our girls." The claims of the two Hollingsworth dads should not turn on genetic ties; in the absence of a showing of coercion or fraud, the surrogate should honor her contract in which she agreed that the gay couple would be the parents of the children she bore them. Imposing the outdated notion that the woman who bears a child is necessarily his or her 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 bore a child that was not his. As reported by the Times, when he discovered that the girl was not his daughter he immediately sought a divorce. In a similar Pennsylvania case, Mark Hudson discovered that he was not the father of the boy for whom he was providing child support. Hudson immediately ceased contact with the boy and filed to stop child support payments. In Hudson's case, the court ruled that Hudson's former wife had defrauded him and dismissed the child support payments.

By violating their marriage contracts, women who cuckold their husbands already have increased the chances of financial and emotional instability affecting the lives of their children. This instability is augmented by laws which require men to cut ties in order 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 the child.

It could be argued that in Mike L's case, 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. On the other hand, perhaps Mike L fraudulently was induced into the new contract by assertions by his former spouse that the girl would not be supported by her genetic father, Rob. Was the new contract violated when Mike L's former wife married Rob so that her daughter was now living with her genetic father whose own financial obligations are lightened as a result of Mike L's court enforced child support payments? Just as in the Vermont and New Jersey cases, the decision should turn on interpretations of contractual obligations, not genetic ties.

Wives who violate their marriage contracts by cuckolding their spouses should not be awarded child support payments for those children. One suspects that the advent of widespread paternity testing at birth will reduce the instances of this kind of contractual violation and thus also shrink the number of children who will be affected by the emotional and financial instability it causes.

Notions about the importance of genetic ties clearly inform the negotiations and the expectations between parties in various reproductive contracts, be they old-fashioned marriage contracts or newfangled surrogacy contracts. But courts should look beyond genetics to the reproductive contracts to which the parties actually agreed. In general the best public policy for looking out for the interests of children will be to enforce the contracts under whose terms they were brought into being.

Ronald Bailey is Reason's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is available from Prometheus Books.