Bargaining or biology? The history and future of paternity law and parental status (original) (raw)
2004, Cornell journal of law and public policy
Paternity suits make good headlines, 1 but they often make bad law. The headlines are news, no doubt, because people care as much about the tangential question, who was sleeping with whom, as they do about the ultimate question, who is the father? This article will suggest that whatever the allure of examining peoples' sex lives, the law should abandon its interest in determining biological paternity. The legal rights and duties of fatherhood should emanate from commitment and contract, not from sex or genes. Currently, fatherhood is a status that brings with it rights and obligations. For the most part these rights and obligations attach regardless of whether one meets or exercises them. They attach, at least according to paternity doctrine, by virtue of one's blood connection to the child. This article challenges that law of parental status at two levels. First, it demonstrates that often, notwithstanding paternity doctrine, blood has little to so with one's status as father. What matters instead is one's relationship with the mother. More specifically contract, or private bargaining between individuals, often tells us more about who the law will consider a father than does blood. Second, this article suggests that thinking about fatherhood as a fixed status is Bargaining or Biology? 2 problematic. One's status as father (or mother) should depend on whether one exercises the rights and fulfills the obligations of parenthood, not on whether one has a blood connection. This second level challenge, to the idea of fixed fatherhood, is a logical outgrowth of the first challenge, to paternity law, because it is the logical outgrowth of thinking about parenthood as contract. If one fails to meet the obligations of a contract to parent, one can lose the rights that the contract provides. By the same token, if one promises to perform the obligations of parenthood, or performs them in a context in which a promise to do so can be inferred, then one can be bound in contract, not because of one's status, but because of one's deliberate acceptance of fatherhood. The argument begins in Section I with a brief historical and contemporary explication of the paternity suit. Section I then demonstrates just how little the law actually cares about biological paternity by examining those cases in which the law rejects biology as a basis for paternity. The last part of Section I analyzes potential rationales for holding a biological father 2 This idea is not new. Martha Finem an endorsed a m other-focused family that elim inated all notions of fatherhood almost ten years ago. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 228-233 (1995). This article does not go nearly as far. It endorses a fam ily structure in which m others hold initial rights and obligations, but in which those rights and obligations are alm ost always shared with fathers. See infra Section III. 3 examines how contracting for parental rights fits the reliance and will theories of contract, the consideration theory of contract and relational theories of contract. Section III then scrutinizes the entitlements and obligations that are actually exchanged in these contracts. It suggests and defends two ideas that are likely to be controversial. First, a gestational mother holds all initial rights and obligations to a child. 2 With some built-in limitations, parental rights and obligations are the mother's to contract away as she chooses. Second, the obligation to support a child can be limited temporally, so that the paternal obligation reflects what was bargained for in the agreement between mother and father, not a static notion of fatherhood. Section III concludes with some examples of how the contract regime would work in practice. Section IV explores the relative costs and benefits of embracing this contract model. Among the benefits is the elimination of the current distinction between how parental status is determined for parents of children born by virtue of reproductive technology and how parental status is determined for parents of children born by virtue of sexual intercourse. Also eliminated is the distinction between how parental status is assigned to straight and gay parents. The partner of a gestational mother (or one who contracts with that mother) acquires parental rights and obligations by virtue of an agreement with the mother, not by virtue of genetics. More important, the proposal offered here recasts fatherhood as a truly volitional status, a set of rights and obligations that one willingly agrees to. It does so, in part, by severing the the legal link between sexual activity and reproduction, as medicine now routinely does, and as is necessary in order to bring the law of parental status up to date with contemporary mores and the contemporary law of sexual activity. The proposal also makes clear that if one does not fulfill the obligations of fatherhood, one can lose the status of father, and if one enjoys the rights of fatherhood, one can become a father. Bargaining or Biology? 3 See infra notes 169-174 and text accompanying.