[Crossposted at Family Scholars Blog. This post is adapted from a comment I wrote a couple of months ago.]
In comments to an earlier post, Elizabeth wrote:
And, if not, if we finally strip away every last social and legal norm and channeling mechanism that tries to say that heterosexuals should try *really* hard to be responsible for the new life their sexual unions often produce — and often unintentionally produce — then what do you propose to do with all those children whose parents we have now freed from obligation? Leave the children all to be raised by their mothers alone, trusting that something special in women makes them generally stick by their kids? Give them all to nice gay couples to raise instead? What?
If we define — in law and social norms — marriage as something that has nothing to do, at its core (yes Fannie there’s that word again), with trying to channel the frequently procreative effects of heterosexual sexuality, then what do we do about the resulting mess?
I don’t think we should “strip away every last social and legal norm and channeling mechanism that tries to say that heterosexuals should try *really* hard to be responsible for the new life their sexual unions often produce.”
However, it’s not the case that “stripping away every last norm” and “legally recognizing same-sex marriage” are the same thing.
The most rational-seeming of the arguments against same-sex marriage is that marriage equality, in some difficult-to-describe way, marginally erodes the commitment of heterosexual parents to raising their own children. This gives opponents of equality a plausible explanation for why the sky has not fallen on families in Massachusetts; the negative impact is real, but it’s not visible because it’s too small and gradual. Or the negative impact is real, but is swamped by other, more positive factors (such as Massachusetts’ relatively low divorce rate).
But Elizabeth’s argument suggests that the impact of marriage equality is not marginal, but catastrophic. But if that’s the case, then why hasn’t the sky fallen in Massachusetts? If “every last social and legal norm” has been stripped away in Massachusetts, shouldn’t we be able to measure that in some concrete way? More single motherhood, more divorce, more something?
Here’s the problem for opponents of equality. If their claim is that the impact of marriage equality will be catastrophic, then their view is already been disproven by events. Family formation has not catastrophically crashed in areas with marriage equality.
But if their claim is that the impact of marriage equality is impossible to measure because it is small, gradual, and swamped by other factors, then in fairness to lgbt people, they should stop opposing marriage equality.
There are a hundred things we can do to strengthen marriage culture. We could reform drug laws and stop sending hundreds of thousands of young men (aka potential eligible grooms) to prison. We could finance and encourage people to use marriage education programs, both pre-marriage and pre-divorce. We could use a lot of channels to encourage TV networks to include examples of healthy, successful, lower-and-working class marriages in their programming. We could try to educate people away from the idea that they shouldn’t marry until they have a home, a career, and enough money for a big wedding. We could do more to provide more people with traits that tend to be associated with more successful marriages (such as college educations and access to stable, family-wage careers).
Alongside those and other pro-marriage initiatives, there’s a lot we can do to support the idea that parents must be responsible for their children. We could make child-support laws, especially for higher-earning parents, stronger; social science evidence shows that states with strong child-support laws have lower rates of single motherhood. (Although we should also reform those laws to avoid creating perpetual debt among parents who genuinely have no money to give.) We could increase government support for parents living with their children — not only in the form of cash aid, but also in the form of childcare for parents seeking education or job training.
And alongside those policies, we could also act to protect the right of children to know their biological parents. We could pass laws for fully honest birth certificates (listing all known biological parents in addition to any adoptive parents). We could outlaw anonymous donation of sperm or egg. We could outlaw anonymous adoption.
The above list is far from comprehensive, and I don’t expect that everyone reading this will support every idea I’ve listed. But my point is that it’s self-evidently false to say that stopping marriage equality is the be-all and end-all of supporting connections between parents and children.
Out of all the proposals to strengthen marriage and make stronger connections, only one — banning same-sex marriage — singles out lgbt people and their kids for permanent second-class citizenship. This is a proposal that has no evidence to support it whatsoever. Yet this proposal receives far more attention and energy from the so-called “pro-family” movement than any other.
How is that fair?
Statistics show that, of all religious groups in American, Jews have the highest divorce rates. But no one would would propose forbidding Jewish marriage in order to lower divorce rates. Even if it would work on a practical level, and even if no one in the world had antisemitism in their heart, we’d still understand that it’s morally repulsive to demand that Jews, and Jews alone, bear the burden and the sacrifice.
Why can’t we extend that same understanding for LGBT people and their kids? How can it be right for LGBT people and their kids to be the only ones forced to sacrifice their dignity and well-being?
Here’s my question for opponents of marriage equality. There are a hundred ways you can pursue your stated goals of supporting marriage culture, parental responsibility, and connections between parents and children. 99 of those ways do not require institutionalizing discrimination and second-class citizenship for same-sex couples and their kids.
Why is pursuing 99 paths, rather than 100, so unthinkable to you?
I think by using the phrase ‘LGBT people and their kids’, you are assuming away the point of contention.
Elizabeth thinks biological parenthood is important. Say a woman in a gay marriage gets pregnant, you and other SSM supporters (who take a social view of parenthood) see this as ‘their child’, think it’s fine if her spouse takes advantage of a presumption of legitimacy to legally effect this, and that it isn’t an issue if the guy walks off. Elizabeth does not think like this, she thinks that the father is important and that by ‘their’ child you should mean the woman and the guy who impregnated her. That’s why she’s arguing with you. Similarly, if you take a social point of view what’s the problem with a couple of gay men paying a women to give birth to one of their children and signing a contract saying she’ll never see it again? But if you think biology’s important, that’s rather messed up.
You’re right that if she started from the same point of view as you her argument wouldn’t make much sense, but she doesn’t. I know most of the SSM push is due to social, financial and equality concerns – and the child/parenthood aspect is viewed as marginal – but that bit is still a direct attack on what Elizabeth values.
Well, no. It’s clearly a direct legal attack on the rights of heterosexual parents (see the examples above), though I hope you can see that’s a bit of an odd term in this context and assumes rather a lot. There are biological parents who will find it much harder to to have relationships with ‘their’ children because of the existence of SSM and associated institutions.
james, you might have a point if the law didn’t ALREADY have all the dire consequences you and Elizabeth are wringing your hands over.
Let’s assume Deanna and George are married. Deanna gets pregnant by the pool boy. She tearfully confesses everything to George. He forgives her and says that he will raise the child as their own. After all, as Deanna’s husband, the law presumes he IS the father.
Of course, that means the pool boy is a “biological parent who will find it much harder to have relationships with ‘his’ children” because of the existence of the presumption of paternity within marriage. Is this not a direct legal attack on the the rights of heterosexual parents – in this case, the pool boy? Aren’t his parental rights more under attack than those of Bob, who donated his sperm to a lesbian couple, and who has no interest in being the child’s father in a legal or emotional sense?
You know what the most fantastic thing about this post and lack of thread is? It’s that there’s a lack of comments. Just a few years ago this would have been dozens, if not hundreds, of comments long arguing about the definition of marriage, the necessity of biological parents/a mother AND a father/inferiority of gay parents and on and on.
It’s nice to win once in a while.
It kind of pisses me off. Come on, somebody post some completely idiotic economic plan to make us all wealthy by criminalizing entrepreneurship, or something, so I can get my fight on.
I’m just bummed that james seems to be a one-shot troll. Won’t SOMEBODY think of the pool boy?
I see the point of the presumptive paternity, but the doctrine originated at a time when definitively establishing biological paternity was difficult if not impossible. Today it’s an $80 test. The legislatures should take another look at it, and consider making the presumption challengeable by anyone with a prima facie claim to plausible fatherhood, or by married fathers who think Billy Jean was running around. I would limit the latter challenge to unions that are being dissolved; if you’re staying in the marriage then the presumptive paternity stands until the real biodad puts his hand up.
Also, you’re a harlot and your pool boy deserves better.
Robert @6: The doctrine has nothing whatsoever to do with modern paternity tests. If a woman’s husband went to sea or off to war and she got pregnant while he was gone, nobody needs a blood test to figure out what happened. The presumption of paternity is about the paterfamilias and the sanctity of marriage – after all, part of the whole point of marriage was allocating property rights, including control of children.
Who can challenge paternity and under what circumstances varies. My understanding is that a lot of states don’t permit a third party to challenge it, ever, but all permit the husband to do so.
And hey, it’s a tough economy. The pool boy can take his ass to Colorado if he wants to move up in the world, if you know what I mean.
I would normally yield to your superior knowledge, but since we’ve got nothing else to argue about, I’m just going to stubbornly insist I’m right and keep spamming the thread until Amp goes mad and starts having fever dreams about Obama being a murderer.
Yes, the doctrine has nothing to do with modern paternity tests, because the doctrine was formulated before those tests were invented. My understanding – and I base this on stuff I heard from pre-law girlfriends 20 years ago so my grounding on the matter is obviously unchallengable – is that the doctrine evolved in an attempt to balance the stability of families and the welfare of children, in a technological and social environment where empirical demonstrations of biological paternity were difficult, expensive, and limited (blood tests that can rule out Potential Daddy X, but not establish definitively that Potential Daddy Y was the dude).
All of those factors have changed, in some cases radically. Paterfamilias is now a quaint anachronism, honored perhaps in the implicit sexism of the officers of the court (sometimes benefiting women, sometimes men) but no longer a serious element of policy. If I show up at my divorce hearing and demand more time with my daughter because it’s my right as the divine spark of the Hayes gens, I’ll be laughed out of court and rightly so. Similarly, we no longer have an environment where keeping families together at all costs is a consensus social value; the old argument in favor of presumptive marital paternity was at least in some measure intended to let women gloss over infidelities for the sake of the kiddies’ happiness and well-being; in 1920 it would be challenging for Runaround Sue to go out and get a job to keep her bastard family afloat, and it was thought better to stick Responsible Ronnie with the duty if Runaround Sue decided to make an honest woman of herself. Today Sue can get a job.
And of course, the technological landscape is radically different. If paternity challenges are likely to be messy and inconclusive – for example, by proving that Responsible Ron ain’t the daddy but offering no tool to prove that Interloping Ian is – then the likely outcome is that the kiddies lose a parent and become half-orphans. Yes, Responsible Ron’s interests ought to be safeguarded – but Ron had the option to not marry the skank, so he was not without remedy. Kiddie-needs-a-daddy trumps Ron-shouldn’t-pay-for-Ian’s-baby, when there’s no mechanism to put Ian on the hook. So let’s not allow the can of worms to be opened; there will be few good outcomes and on net the most helpless parties in the case will be harmed.
But that isn’t true anymore. Sue knows who she slept with, barring stranger rape, and if she wants support for her brood she can name the potential fathers and it can be established scientifically, inexpensively, and conclusively which one of the lucky donors won the egg toss. The balancing act which once militated for a closed can of worms, is now quite capable of untangling each and every worm and assigning definitive paternity to every last wriggler. Since we CAN put Ian on the hook and let Ron off, the kiddies will have a daddy – and now Ron’s right to not pay Ian’s baby bill is enforceable without harm to innocents. Let Ian and Sue raise their kid; it’s their kid, and we can show it.
The pool boy is welcome, and after he sues you for custody under the new enlightened regime, the child support check he wrests from your greedy lawyer earnings will be even more welcome. Time for you to face the consequences of your wantonness!
This reminds me of a red-state vs blue-state distinction I saw quoted somewhere that went essentially “Some people think that adults make children; others think that children make adults.”
If you think that becoming an adult (and presumably a good/godly/mature) person comes from being forced to deal with the responsibilities of raising infants/toddler/children, then this idea of marriage as an institution for helping to confine people and coerce them into doing their duty makes a certain minimal level of sense. It’s essentially the notion that we are all Fallen and need to be beaten with rulers to make us behave properly.
On the other hand, if you think that people, having grown up and become mature independent human beings (with the help of their parents and communities) decide to come together and raise a succeeding generation, the idea of marriage as coercive (or even “nudging”) institution doesn’t make much sense at all. Marriage becomes a facilitating institution instead. And the moral notion is that we are Redeemed and doing our best to model a good life out of gratitude and joy.
(Or, in more formal language, marriage isn’t an institution that constrains people, it’s an outward and visible sign of an inward and spiritual grace.)
There isn’t anywhere which sees it at purely about that. There are various presumptions with various justifications and strengths, and the law is changing all the time. You’re doing the same thing as Amp, asserting that everything is social and ignoring opposing views.
On the one hand (as you say) there are paterfamilias justifications of maintaining the stability of the family, on the other (as Robert says) there are biological justifications where the presumption’s intended to track factual paternity. There are other jusifications too, like child welfare and controlling public spending. In reality, the law’s currently somewhere in the middle – with it carrying some element of biology and some element of social parenthood.
That’s particularly important because the law’s evolving and being pushed in two directions at the moment. DNA tests means there’s pressure to defer to biological reality, while recognising it within SSM upholds a social point of view. As to your question: “Is [adultery in a hetro-marriage] not a direct legal attack on the the rights of heterosexual parents – in this case, the pool boy?” Well, it depends, not if it’s understood legally as a biologically founded and contestable presumption. But if per SSM it’s seen as a purely social award of parenthood, then yes it is.
I’m not sure what you’re getting at here. Could you try rephrasing? Not sure what all the its are referring to. (I haven’t finished my coffee yet, so it could be me.)
Also, SSM is not in any way the only means by which people raise children who aren’t the biological offspring of both legal parents. Opposite-sex couples and single people adopt. One parent may die, or leave, or never be involved in the first place. Couples use sperm donors or surrogate mothers or donated eggs. How is it that these only become a problem when they involve a same-sex couple?
I don’t hang out at Family Scholars Blog much, but do the people arguing against same-sex marriage have a problem with adoption or surrogacy in general? Because if you’re arguing “bio-parents should always be the ones raising the kids,” I would expect you to be against those things. I would also expect you to be against step-parents being allowed to adopt or relatives by marriage having any rights pertaining to a child.
It doesn’t have to be all or nothing. If “the guy who impregnated her” is her first husband, or ex-boyfriend, yes, he should be involved in his kid’s life. But that doesn’t mean that the kid’s step-mom should not be. He doesn’t have to be trapped in a loveless marriage for that to happen, though. It seems like Elizabeth’s argument is that the only way that bio-parents will parent is if they are pressured or forced into being and remaining married. But divorced or never married parents can and do work this stuff out (some well, some really poorly, but I don’t see how the situation is improved by requiring the ones who share parenting duties poorly to also share living arrangements and finances).
It’s also possible that he wants nothing to do with the kid, or would be a crappy parent for whatever reason. If we elevate biology above everything else, then we have to spend energy trying to force people who don’t want to parent to do so, while people who would be happy to are shoved aside.
I have a cousin who was raised by his grandparents. His mom was a teenager when she got pregnant; his dad ditched her and went to California. Should someone have tracked him down, dragged him back, and made him marry the teenage girlfriend he’d abandoned and who probably hated his guts by this point? Would that really have been a better environment than with grandparents who had already raised three kids? (And if not, is it only the fact that the grandparents have a biological tie that makes it okay? Why?)
Dragged back to marry, no; dragged into at least economic fatherhood, yes. Marriage is volitional, chosen, contingent; parenthood is ideally entered into volitionally, but once entered into it is permanent. Enjoy California, but here is the address to send the checks.
Robert @9: again, the technological landscape really doesn’t change things as much as you believe. Math was not invented yesterday. Nor did we need vast leaps in the genetic sciences for people to think it a bit odd when a baby looks a lot less like Dad and a lot more like the milkman.
Paterfamilias is fading, but the existence of marriage as a legal mechanism for establishing property rights, mutual rights and responsibilities, inheritance, and so on is not. The presumption is one of the benefits and obligations of marriage; Ron and Sue have agreed that any children they have together will, from the get-go, be legally treated as his by default. Since it’s a presumption, there are circumstances where Ron can hand Ian the kid and say “Here, all yours” – but depending on your state, only Ron or Sue may get to start that process in motion. We don’t want Ian busting up Ron and Sue’s marriage with a bullshit paternity suit when they’re perfectly happy with the situation.
james, your post is not only incomprehensible, it’s an excellent example of Orwell’s saying about insincerity and clear language.
Why don’t we? *It’s Ian’s kid.* Not everyone is happy with the situation. If you come steal my kid and shack up with my ex, your mutual bliss is not sufficient cause for the courts to disregard my views.
I think you grossly undervalue the role the tech changes play. “We can’t do it, so we ban trying” is a vastly different proposition than “it’s very simple to do but it would upset some precedents, so we ban trying”. What was once a graceful bow to necessity has become a correctable injustice. The first generates no social pressure, the second does nothing but.
Why don’t we? *It’s Ian’s kid*.
I just explained why we don’t. *Because the mother of Ian’s kid is married to somebody else.* And in certain circumstances, the law does not automatically elevate the actual, biological parent’s rights and interests above all considerations.
I think you grossly overvalue the role technology plays, and grossly misunderstand the policies at work here. Presumption of paternity (which applies in situations other than marriage; it can get complicated) is not about “Well, shit, we don’t have any way of telling who Dad is, so I guess the husband’s as good as any.”
There was an article in the NY Times Magazine a few months ago about the different situations that can happen with stuff like this and paternity tests. There was one case that I remember, which started as this same Sue, Ron, and Ian situation. When the child was about five years old or so, Sue and Ron got divorced, and Sue admitted to Ron that the child probably wasn’t his. They had the tests done, and determined that Ian was the father. Ron was kind of upset at Sue, but still thought of the child as his daughter, and they agreed that Sue would have primary custody and Ron would have the daughter every other weekend or something like that and pay child support. A few years later, though, Sue and Ian got married. So this child was now living with her biological mother and father, and getting child support from Ron. Ron was a bit more upset at this point — he was willing to support the child when he was the only father in her life, but didn’t see why Ian got to come back into Sue’s life and help raise the child without having any legal responsibility toward her. The law treated Ian at this point as the child’s stepfather, rather than as the biological father who came back into the picture.
Mythago, you’ve explained why Ron and Sue don’t want to mess things up. You haven’t explained why it’s good for society, or for Ian, or for the kid. It’s easy to decide that the system is working, if you scope your results to ignore all the people who aren’t happy. The technology is relevant because – despite your faith in “that kid looks a lot more like the gardener” as a legal tool – we wouldn’t have “bullshit paternity challenges” today. It would be bullshit in 1950, when you could throw doubt on Ron and establish a possibility for Ian, but no better than that. Today you can say with certitude, “Ron is the dad” or “Ian is the dad”.
It isn’t a bullshit paternity suit if it’s actually Ian’s kid, and the suit isn’t going to drag on for days and weeks as people testify about who looks like who; they take a swab, they mail it off, boom. Question settled.
As Ruchama notes, with today’s family flexibility and the high instance of remarriage, the potential for abuse isn’t just potential, it’s real. I am not a biological essentialist who holds that genetic parenthood is the sine qua non to which all else must be sacrificed, but neither is family just whatever legal formalisms and personal preferences that today’s whims and fads have enshrined. Ian has a legitimate interest in being connected to his offspring, and the offspring have a legitimate interest in being connected to their father, even if that upsets the applecarts of people living under false pretenses.
I hate to be That Guy, but I have to wonder if you’d be so blase about the question if “presumptive motherhood” was a legal concept rather than a usually pretty obvious biological one. We KNOW that Sue’s the mom, we watched the little sprog come out of her, her rights are almost never trampled on through ignorance of her status as the bio mom. The presumption of paternity USED TO protect the kids and the families and the society because the cost of investigation was too high and the outcome of investigation pathetically inadequate; now the presumption protects only the specific people in the marriage by putting barriers in the way of *actually establishing the factual basis*.
I don’t think the marriage should trump the family, unless all the parties involved want it that way. If Ian doesn’t want anything to do with the sprogs, and Sue is happy with Ron being dad, and Ron is cool with it, then great – nobody is going to make them send off swabs to the lab. But I don’t think that Sue and Ron should get to blow off Ian – and possibly the kids – by blocking a now-practical assessment of the facts on the ground.
Kelly’s got a good question here. If Biology Is All, shouldn’t folks who protest SSM on that ground be equally opposed to these arrangements? My son and his wife adopted a baby girl from China (now age 3). Is this wrong? Should they send her back, lest she endanger traditional marriage? (And what will happen to her then?)
This objection (“every child is entitled to bio-mommy and bio-daddy regardless of the circumstances”) reads like a make-weight to me, something even the people saying it don’t really believe.
That is a fair question, Susan. (I don’t know the answer; I have no problems these days with SSM and never have had with adoption.)
Here’s an (I think) fair counter-question:
If tomorrow morning a young Chinese couple show up at your son’s house and say “the Chinese state stole our baby and gave her to you and only now have we been able to track her down”, then (assuming they are telling the truth) do you think they should have any recourse or rights?
Would it make a difference if they showed up on the first day of your granddaughter’s new adoptive life, or on her 19th birthday?
(I’m genuinely curious, not trying to score any rhetorical point.)
Let’s me try this again.
(1) It is wrong to say the presumption is purely about paterfamilias. There are other justifications too; like attempting to track factual paternity, or support child welfare, or control public spending.
(2) Nowhere has the sort of irrebutable presumption you’d get on a pure paterfamilias basis. They all have varying degrees to which the presumption can be rebuted based on biology. At the moment the law is somewhere in the middle, with the presumption being a mix of some elements of social parenthood (you’re the dad because you’re married to the mom) and some elements of bioparenthood (you’re the dad because the marriage means you’re likely to be the bioparent, and you can have a shot at disproving this).
(3) So “Is [adultery in a hetro-marriage] not a direct legal attack on the the rights of heterosexual parents – in this case, the pool boy?”
I think it depends on the exact nature of the presumption. If it is a biologically founded and contestable presumption – I don’t see the problem. The rule serves the purpose of getting bioparents to stick around. But if it’s a social award of parenthood which is difficult to rebut – which would be useful for SSM – then yes, it is an attack.
Robert, your question isn’t really about adoption, but rather about the deplorable state of family in China, poverty, international covenants, and a whole lot of other stuff.
Let’s re-cast it into a domestic adoption. Susie Birthmother for whatever reason relinquishes her baby for adoption, and the father consents. The baby lands at Mr. and Mrs. Adoptive Parents. Assuming all this was done according to law, then Birthmother and her boyfriend are out of luck if they try to undo it later.
So unless the right would change this law, they’re being a tad hypocritical, yes? when they insist that every child “deserves” to be raised by its birthparents, whatever the circumstances.
Susan – Fair enough re: China, didn’t mean to drag in the issue.
Mmm, but while I’m being fair, the scenario ought to be, mom put baby up for adoption while claiming father was MIA. Then father shows up, with a plausible scenario of not knowing about the baby because mom never told him, and desiring a relationship with his child.
I don’t know anybody who insists that every child be raised by their birthparents regardless of circumstance.
As mythago has already pointed out, the complexity of human marriage arrangements is distorted by understanding them as an amalgam of recent Anglo-American legal history and a whiggish view of knowledge about biology. About the only generalization that can be made about marriage is that it’s about social rather than biological reproduction.
The obsession with biological relatedness is of relatively recent vintage, even in the west. It’s fed as much by a decrease in morality rates (fewer children die in infancy or childhood; fewer people marry multiple times because of widowhood) as it is better technologies for determining genetic relationship. That’s not to say that infidelity and illegitimacy were not issues in earlier periods; they were. But much of this discussion, or that on the Family Scholars Blog, would strike most people across history and around the world as utterly bizarre and sex obsessed.
I can accept that people who are determined to support biological relationships by encouraging the heterosexual marriages of children’s parents are acting in good faith. I’d feel better about them if so many weren’t attempting to intervene in *other* people’s relationships–agitating against same-sex marriage, limiting access to new reproductive technologies, making divorce more difficult, valuing biological ties at the expense of affective ones. At the very least, they should admit it’s because of contemporary enthusiasms rather than invoking an entirely spurious history.
He should be able to have one, if he actually wasn’t told–or, let’s say, his story is plausible and neither the adoption agency or the birth mother can or does demonstrate otherwise. That is, if they show records that he was informed and wanted nothing to do with the child, he doesn’t get to change his mind later. (If the cousin I mentioned beforehad been put up for adoption after his father skipped off to Cali, he shouldn’t get to show up on the adoptive parents’ doorstep five years later and take the kid back because he’s now decided that having a son might be kind of cool–and hey, the kid should be potty trained and sleeping through the night now.)
That doesn’t necessarily mean that the father should get to take the child away from the adoptive parents. It depends on how old the kid is and what’s in their best interest. The interests of the adoptive parents should be considered too, though probably not as highly as the interests of the child. Some sort of shared custody or visitation might end up being what’s best (and it would depend on the individual situation whether it’s bio-dad or the adoptive parents doing the visiting).
That’s kind of the point. Nobody does *until* SSM comes up, and then it gets trotted out that every kid needs a mommy and a daddy, preferably their biological parents.
Sounds good to me. At least ideally. (It didn’t happen that way that I know of, so I assume tracking him down wasn’t feasible–or was at least considered not worth the hassle. But, then, I wasn’t even born yet, so of course I don’t know the details.)
This brings up another side question (which should be okay, since we’ve pretty much all packed up and moved to Tangentville on this thread). What should be required for someone to bring a paternity suit in the first place (which may or may not be bullshit–there’s no way to know until the test is done)? Because I accept that Ian has a right to a relationship with his child if he wants one, and if she is his child. But giving Ian that opportunity also gives Alternate Universe Ian (who never got past second base with Runaround But Only a Little Sue) to mess up Ron and Sue’s marriage just to be a jerk. (He is Alternate Universe Ian after all. Therefore he’s evil. You can tell by the mustache.)
Does the married parent have to admit infidelity? Does there have to be a physical resemblance between Kiddo and Ian? I would imagine that this is the sort of thing that involves a court order, and therefore requires convincing a judge. I’m just curious what the standard actually is (well, and what people think the standard should be, because those sorts of conversations are interesting).
That is a good point. But in the situation Ruchama brings up, is it fair for Ron to walk away from parental responsibilities he accepted *knowing* that he wasn’t the biological parent? I totally agree that the situation is a horribly raw deal for Ron, but it’s a raw deal for Baby Katie (who really needs a name other than “the sprog” or “the kid”) too. Daddy isn’t your actual daddy and Ian here is your real daddy—oh, and Daddy doesn’t want anything to do with you anymore. Ouch.
james: you’re actively misrepresenting what I actually said, and I’d appreciate it if you stopped, even though it’s convenient for your argument. Nobody claimed paterfamilias was the only reason for presumptions of paternity; nobody talked about presumptions being irrebuttable; and your point #3 makes no sense, unless what you’re trying to say is that, indeed, you only give a shit about the rights of biological parents when we’re on the subject of SSM.
Robert: Actually, yeah, you are being That Guy. Presumptive parenthood is an issue in SSM, where you can have two mommies. If Sue and Debbie get married, and then Sue gets knocked up, Debbie would be the presumptive parent of their child.
I find it slightly amusing that you keep moving the goalposts here: What about the kids’ interests, huh? What about Ian? WHAT ABOUT FEMINISM?! These are not new concerns. It didn’t take 21st-century science to figure out that if Responsible Ron was a sea-captain or a soldier who was away from home two years straight, that he’s not the one who knocked up Runaround Sue.
The law is balancing a lot of interests here – the parents’, the kids, the spouses, and of course the interests of society in not having acres of litigation every time somebody has a baby. One of the factors that I think you are overlooking is that marriage is voluntary. If Ron doesn’t want to be at least presumptively on the hook for any child Sue has in their marriage, then he doesn’t have to get married. If Sue wants to be sure that her babies’ legal father is “the guy I’ve been fucking for the last nine months” and not “that sad sack husband of mine”, she doesn’t have to get married.
Also, recall that these presumptions are rebuttable. In some states, Ian may be able to set aside Ron’s paternity, and in all that I’m aware of, Ron can seek to have the presumption set aside if he thinks Sue is one of the fraudulent gold-diggers of MRA nightmares.
I love the alliteration of “Responsible Ron,” but feel let down by “Runaround Sue.” How about “Two-Timing Tessa” instead?
Speaking of tangents, isn’t this concern with biological parenthood maladaptive from an evolutionary point of view? If species couldn’t bond with and nurture foundlings the chances of species survival would be that much less. We’ve plenty of empirical evidence indicating that biological descent is largely irrelevant when it comes parenting.
I take it that you’re unaware of the song by that title?
Since we’re off on various tangents anyway, how about the interests of the child? At least one study has shown that children raised by lesbian couples are much less likely to be abused than those raised by heterosexual couples. Should lesbian parents be the default ideal and hets only used when necessary? At the very least, the findings seem to suggest that lesbians should be top of the list for adoption.
You take it correctly!
Speaking of tangents, isn’t this concern with biological parenthood maladaptive from an evolutionary point of view?
It’s also incorrect from an anthropological and historical point of view.
I don’t understand why you’re having trouble with this.
A reputable presumption granted to a man and founded on the idea that the husband is probably the father actively helps the rights of biological parents – 90%+ of husbands are bio-parents are correctly assigned the right, and if that doesn’t happen you can object based on the biological evidence and overturn the presumption on that basis. A presumption based on the idea of social parenthood and granted to a woman based on the fact she’s married to the kids mom actively hinders the rights of biological parents – as she won’t be the bio-parent 100% of the time, and people who object will have a limited ability to challenge based on biology.
I don’t see the argument that you can’t object to an element of law that fucks up 100% of the time, if another aspect of the law (despite a great deal of success) has a very small percentage of fuckups.
So, again, the rebuttable presumption granted to a husband hinders the rights of at least 10% of biological fathers, who may be prohibited by law from even trying to assert those rights. And let’s not forget that in situation where the husband cannot possibly be the biological father, the law fucks up 100% of the time.
You are also assuming that biological parents always have rights 100% of the time, which is, like so many of your other assumptions, wrong. Gamete donors have no rights to their biological offspring – but apparently this is OK when the woman relying on a sperm donor is married to a man; when she’s married to another woman, then and only then we need to wring our hands about depriving a biological parent of rights?
I don’t see the argument that a law depriving biological parents of their rights is OK as long as it’s a heterosexual couple getting in the way, but not when it’s a homosexual couple.
I think the argument is that a law depriving biological parents of their rights when heterosexual OR homosexual couples get in the way is worse than one which just deprives them of their rights only when heterosexual couples get in the way.
Depriving biological parents of their rights also a bit of a weasel phrase here. Presumptions are how most bio-parents get rights. If we did away with them most bio-parents would be worse off (it would literally deprive them of rights), they do far more good than harm.
A 90% success rate is excellent. Making a law which takes onto account a 90% probability is quite sensible, in most cases. But it depends on the followup: how often are biological fathers prohibited by law from trying to assert parental rights?
You’re right: this makes no sense. I have to assume james is not talking about sperm donors, since it’s such an obvious thing.
I think he’s actually talking about women who are married to other women, and who get pregnant WITHOUT a sperm donor–i.e. they cheat on their spouse.
If there’s an official donor relationship, we should assume parentage for both members of the married couple. More accurately, we should assume a previously-consented-to-transfer of parentage from the donor and adoption by the non-pregnant spouse, since we usually assume that children are mutually agreeable if they stay married.
That assumption is the equivalent of “it’s your kid if you deliver while married” for hetero couples.
Do some hetero women cheat on their spouse? Sure. Do some lesbian women cheat on their spouse even when they have a donor relationship? Sure.
Is every kid of a hetero marriage actually the child of the then-father? Of course not. If every kid who is supposedly a “donor kid” actually the child of the donor? Of course not.
Still, we need a way to deal with it. Our society has dictated that cheating hetero spouses and cheating lesbian spouses should, LEGALLY SPEAKING, both get the benefit of the doubt. But our society is also conservative: in order to get the benefit of the doubt, you need to have a “legally supported” source of sperm: either a husband or a donor relationship.
If there’s no donor relationship and if it’s a lesbian couple, then–unlike a hetero marriage–it is 100% clear that there is
(1) no biological tie to the non-pregnant woman; and
(2) a biological tie to someone who isn’t a sperm donor; who didn’t proactively waive his parental rights; and who might be interested in exercising them.
Many people argue that gay marriage will destroy the institution of the family because it causes a child or children to be raised by two parents to the same gender rather than a man and a women. But I do not think that there should be one of the reasons to justify why same sex marriage should not occur. I am interested in looking and data that talks and looks into the lives of children who were raised by parents who were the same gender. I sure that they did not see the difference from them and kids who were raised my straight parents. I just feel that society as a whole cannot say that gay marriage will destroy the the institution of marriage because its already falling apart this day in time.
gin-and-whiskey @39: No, actually the problem is that james’ argument *doesn’t* make sense (and the 90% figure is pulled out of thin air). That’s pretty typical of most anti-SSM arguments that forget how much the definition of marriage for opposite-sex couples has moved away from the ‘traditional’ model.
Your “benefit of the doubt” argument is backwards. The beneficiary is not the mother; it’s the mother’s spouse who gets that “benefit of the doubt” and is assumed to have the responsibilities and rights of parenthood, without having to prove paternity, as a starting point. Of course that presumption can be rebutted; I’m not aware of any state that forbids a married man from challenging the paternity of his wife’s children, although many do prevent a third party (i.e. not the husband) from challenging the paternity of a child born to a married couple.
If the argument is that we know that a woman isn’t the biological father of her wife’s child, well, we also sure that a man who is sterile or who has been away at sea for a year isn’t the biological father of his wife’s child, but one of the perks of marriage is that we assume paternity rather than assuming it has to be proven first.
By the way, not quite following your argument that the only two ways for a woman in a same-sex relationship to get pregnant are sperm donors and cheating.