Which Ties Bind-Redefining the Parent-Child Relationship in an Age of Genetic Certainty (original) (raw)

2002, Wm. & Mary Bill Rts. J.

To prosper, children need, at a minimum, the ability to draw on adult material resourcesfood, clothing, shelter, love, care, education, and guidance. Children must develop, in addition, a social identity, a sense of self that connects them to the society around them. With the changing conceptions of the family, We must face the issue of how society ensures children's well-being, and whether we should continue to police family structure or become more willing to focus attention on children's individual needs. In addressing these topics in this paper, we therefore start with two overriding questions: (1) Are children's rights best protected by the assertion of individual claims or by the design of a regime that can be expected to advance their interests?; and (2) to what degree should children's claims on adults responsible for their care depend on genetic ties? We plan to begin by staking out a position on the nature of children's rights. We believe that the legal system recognizes these rights not by treating children as autonomous actors but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Historically, this principally meant emphasizing the unity of sex, reproduction, and childrearing; in the modem era, .it means redefining parenthood in light of the separation of these activities. In either event, however, it means delineating clear lines of authority for those responsible for children rather than case-by-case decision.-making. Second, we will examine what is known aboutthe relationship between genetics and childcare. This examination will focus on the existing empirical and sociobiological literature that considers the importance ofbiological relationships. While this literature does not produce a definitive set of answers, and while it should not be used to dictate public policy, it suggests that genetic ties play an important role, albeit a role mediated by intimate relationships. We use the empirical literature to critique selected areas of family law as they have interpreted the importance of the genetic link. This examination will focus primarily on paternity, starting with the constitutional status of the marital * Presidential Professor of Ethics and the Common Good, Santa Clara University. I would like to express my appreciation to the Santa Clara University Center for Science, Technology and Society for its research support. ** Professor of Law, George Washington University Law. I would like to express my appreciation to George Washington University for its research support. We would also both like to thank Kathy Baker for her helpful comments on an earlier draft of this Article and Mary Dini and Armando Pastran, Jr. fortheir research assistance. We would further like to express heartfelt thanks to Jim Dwyer for organizing such a thoughtprovoking symposium and inviting us to participate. ' The only issues we discuss in this Article, however, are the marital presumption and the similar position of an unmarried man who believes he is the biological father, but is not. Voluntary declarations for unmarried parents present complex issues that will be discussed further in our forthcoming book. '" See, e.g., MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 201-02 (1985). Grossberg comments that: reformers exposed the problem at the heart of bastardy law: whether the individual or the family was the unit to be protected by the law. Reformers, like most of those who tackled the issue, divided over the question. They struggled to find a way to aid these children without undermining the home as a social institution. Id. at 228.