John C. Sheldon


Recent medical advances that permit human conception without intercourse, in combination with sociological changes in our country, dramatically enlarge the population of adults who can produce or raise children. The legal price for this broadening of opportunity, however, is a diminishment of certainty: We are no longer sure whom we should identify as a child's parents. These are important questions, of course, because ready answers will quickly dampen disputes about custody and will immediately establish support obligations and the children's eligibility for health insurance, for inheritance, for Workers' Compensation benefits, and for Social Security survivor benefits. But as important as those questions may be, there is no law in Maine that answers them. In fact, there may not be answers anywhere, at least for the present. The reason is twofold. First, the questions are too new. Only within the last twenty years has medical science made it possible for a woman to bear a child to whom she is genetically unrelated. Since then, this revolution in technologically-assisted reproduction has accelerated, forever refining and expanding the science of conception and thereby extending the possibility of parenthood to increasing varieties of previously infertile people. Second, the subject is too complicated. It combines traditional family law with questions of medical technology, genetics, medical and legal ethics, psychology, sociology, constitutional law, theology, contract, gender equality, and gay and lesbian rights. I will attempt to describe this phenomenon, and its effect on how we identify parents, in a discussion that pivots around the examples with which I began. I open with an overview of our historical method of identifying parents: the woman who gave birth and, by traditional implication, her husband. Existing state statutes are equally inconsistent, and the newly proposed Uniform Parentage Act of 2000 addresses only part of the problem. In short, everybody is right, and everybody else is either entirely or partly wrong. We find ourselves in theoretical gridlock without any foreseeable likelihood of relief. I have derived my proposed statute from provisions of the nascent Uniform Parentage Act, but I have amended or expanded its terms in order to address some significant, real-world issues that the Act overlooks. The thrust of my proposal is to identify the parents upon the children's births, just as we do (or attempt to do) with conventional parents. Moreover, I recommend that we do so without regard to the children's best interests. As ironical as that may sound, it turns out to have been what we have always done: Our traditional presumptions of biology and legitimacy have never addressed any of a child's best interests except subsistence and, recently, protection from harm. I argue that we must preserve that seemingly insouciant policy, however alluring a child's best interest may be, lest we compound the complexities that we already face. I understand that the statute I propose may not be the final solution to this particular problem. Nor do I consider the many other problems that emerging conception techniques and evolving sociology have already produced, and I simply wonder at the convolutions that the future will bring. But we cannot luxuriate in theoretical debate any longer; we have to start immediately, and somewhere. I offer a single point of departure, from which we may gradually explore the frontier that has suddenly appeared before us.

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