have a great advantage: they both have a connection with the child. They’ve both got skin in the game, literally. When they are married to each other, they have made a commitment to work together to build a common life. The children are their common project. This is not so for the child of an anonymous gamete donor. The people raising the child may have a commitment to each other, it is true. But they start off on unequal footing with respect to the child. One is the natural parent, the other is not. The “contract parent” model says that this natural connection should be legally irrelevant. The frequency and bitterness of these custody disputes says that biology continues to be relevant in fact. A mother may discover that sharing the care of her child with another woman is more difficult than she expected. A sperm donor father may find the attraction of fatherhood more powerful than he expected and want more contact with his children than he expected. Is it really the business of the law to hold people to a “contract” in which they agree, in advance of the child’s birth, that they are going to ignore biology biology forever? forever? This is absurd, unworkable, and inhuman. No other part of our law makes this kind of demand on people.
thought to the interests of the child. The plain fact of the matter is that our law right now says that anyone with money gets to do whatever they want. There is no legal protection of unborn children and their identity rights. The courts are scrambling around after the fact, trying to protect their legitimate entitlements on the back end. When the courts have to make these judgments, they end up implicitly or explicitly imposing something on someone. They can’t be neutral among the competing claimants and their arguments. There is no getting around it: when these custody disputes come to court, the agents of the state will impose something on someone. At least one party will not be happy. Sometimes, nobody is happy. Finally, the deepest reason why society has obligations to children is that this is the only position that is truly consistent with the idea that people deserve freedom, rights, and dignity in the first place. Nature and Nature’s God endowed us with certain inalienable rights: among these are life, liberty, and the pursuit of happiness. This is a core principle of the American founding, and the American experiment. In other words, our liberties are gifts from Nature and Nature’s God. Our liberties are most specifically not the result of human will, our own, or other peoples. Just so, children are gifts from Nature and Nature’s God, not the result of human will. Accepting children lovingly from God, or from Nature,
A libertarian’s instinct might be to endorse Artificial Reproductive Technology, since it enhances people’s choices. But Artificial Reproductive Technology enhances the adult’s choices, without giving a moment’s Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com • email:
[email protected] • 760/295-9278
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