Waldlaw Blog

Monday, November 14, 2005

More Musings on Fatherhood

One of the hottest topics in family law right now is the definition of what makes a father. In many families, one would never think to ask "who's the father here?" because it's so obvious. But there are numerous other families where attempts to answer this question are leading to conflict and, increasingly, litigation. Some examples: * A married woman separates from her husband and moves in with a boyfriend. She has a baby with the boyfriend, then ultimately breaks up with him and reconciles with her husband, moving back into the marital home and bringing the baby with her. The husband wants to raise the child as his own, along with his wife; the ex-boyfriend also wants to maintain a parental relationship with the child. Who is the "father" of the baby? * A man moves in with a woman while she's pregnant, is present at the birth of her child, and continues to parent the child for a number of years even though he knows he isn't genetically related to it. He is the only male parent the child has known -- but is he the "father"? * A husband and wife have a child, and raise it together as their own. They divorce when the child is already in elementary school and, during the process of an ugly dissolution, the husband finds out that the child actually was conceived during an extra-marital affair and isn't his genetic offspring. Is he still the "father" of that child? * A husband and wife are having fertility issues, and therefore decide to create embryos by in vitro fertilization of the wife's eggs with the husband's sperm. Some of the embryos are implanted in the wife's uterus, with the remaining ones frozen for future use. The husband and wife subsequently divorce. The ex-wife wants to have more children using the frozen embryos; the ex-husband doesn't want any more kids. If the ex-wife goes ahead and has more babies using the embryos against her ex-husband's will, is he the "father" of those babies? All of these are real cases. All of them have been decided in courts around the country over the past five years, many several times over, in several different states, often with conflicting results. Together, they raise profound questions about how we define fatherhood and family that I believe need to be addressed by a broader audience than the courts or even the legislatures. I'm not sure how to convene that audience, but it seems clear that we need to be having a national conversation about what we mean when we say "father" and "family" -- are we talking about genetics, about parent-child bonding, about economic responsibility, about some of the above, all of the above, or something completely different? Thoughts, anyone??


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