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.
