I. Lame-Duck Sauce
The Illinois legislature might be on the verge of enacting a full marriage equality law. There’s apparently a rush to get this done in the lame-duck legislative session, which ends next week, but it’s hard to say why, exactly. It looks like the statehouse will have even more equality boosters in the upcoming session, so why give the opponents ammunition (“See how they pushed this through in a lame-duck session!”)?
The Land o’ Lincoln is the fifth-most populous state, so, in addition to underscoring the Zeitgeist-ian1 momentum of the movement, the law would be significant for the sheer number of folks potentially affected. (I’m not so optimistic about my home state of PA, as you can see here.2) But given my borderline-obsessive fixation on civil unions, I wonder what will happen to them. Recall that some of those civilly united in Illinois are opposite-sex couples who chose civil unions over marriage for reasons I detailed in this piece for Slate. They could have married, so presumably many of them — excepting those few who might have chosen the civil union purely out of solidarity with marriage-excluded same-sex couples — want to stay civilly united, and not marry. Well, according to the version of the legislation I read, they can stay civilly united, and that status will continue to be available, to both straight and gay couples hereafter. Fascinating, especially since one of my assumptions might not be correct.
II. A Taxing Issue
Since there’s no such thing as a federal civil union, I wasn’t alone in thinking that opposite-sex couples in civil unions were really giving up something big: their right to receive federal benefits. Same-sex couples can’t get ‘em anyway, thanks (but no thanks!) to the Defense of Marriage Act, so it seemed clear that the demise of DOMA — as seems likely this year — would put the lie to the claim that civil unions were “really just like marriage.”
I didn’t reckon with an informal IRS letter, sent in 2011 from an IRS “Senior Technician Reviewer” to a tax advisor for H&R Block. The Service was asked whether an opposite-sex couple in an Illinois civil union could file a joint federal tax return. Answer: “In general, the status of individuals of the opposite sex living in a relationship that the state would treat as husband and wife is, for Federal income tax purposes, that of husband and wife….Accordingly, if Illinois treats the parties to an Illinois civil union who are of opposite sex and as husband and wife, they are [so considered under the Code], and are not precluded from filing jointly.
OK, it’s just one letter from one mid-level person. But it’s potentially powerful, and not just for opposite-sex couples. If DOMA goes, and if the state really intends civil unions to be the equivalent of marriage, then same-sex couples might be able to accede to at least this one federal perq. Maybe. This whole ganglion wrapped in a skein reminds us that predicting consequences of acts undertaken in reliance on what we think is settled law can be parlous. For example,
III. “We’re Not in Kansas Any More” — Oh, Wait, We Are!
For those, like Elizabeth Marquardt, who want to do away with anonymous sperm donations on the (not unreasonable) premise that children have the right to know whom their parents are, this action by Kansas state officials should be chilling. I’m curious to know what people think about the state’s exploitation of a legal infirmity with a known sperm donor/lesbian couple’s agreement that the donor would have neither rights nor responsibilities for the daughter that was born of the artificial insemination.
Categories: Marriage, Reproductive Technologies
“Recall that some of those civilly united in Illinois are opposite-sex couples who chose civil unions over marriage for reasons I detailed in this piece for Slate.”
But do you really think men and women are “opposites,” John?
Opponents of same-sex marriage often argue that marriage can (or should) only exist between men and women due to the “complementary” nature of men and women.
I would suggest that using language, even very common phrases, like “opposite-sex couples” reinforces those stereotypes about men and women being opposite, radically different, and/or complementary. I also don’t think it’s a very accurate descriptor since men and women have far more in common than they have differences.
Personally, that’s why I tend to refer to male-female couples as mixed-sex couples, different-sex couples, or heterosexual couples. Just an observation.
I can’t imagine why the Kansas thing would surprise anyone. The state government is one of the most conservative in the country. Anyone who wants to use a donor should know what the law is in their state and follow it. I’d be interested to know if any straight people have been similarly for their stupidity.
“Well, according to the version of the legislation I read, they can stay civilly united, and that status will continue to be available, to both straight and gay couples hereafter.”
I really dislike having two statuses of marriage. I think the creation of this other kind of marriage is a strong reason for conservatives and marriage nuts to support legalizing same sex marriage. Otherwise we could end up with two kinds of marriage for all couples everywhere.
About Kansas – This might be another reason to allow same-sex marriage. Federal aid is often only available to single parents. The single parent is then required to cooperate with child support enforcement in order to get the aid (TANF or medicaid).
So if these two women had been married, they might not have been eligible to get the assistance and no one would have asked about child support. Or if Kansas does give aid to two-parent families (some states do), the other woman could have adopted the baby and been its legal parent.
One thing that may be going on here is that these women are being treated as a cohabiting couple where one person is not the child’s parent. The legal limbo is adding to the problem.
There is probably some discrimination going on, though. Has Kansas ever required a straight single mother who used a sperm donor to go after child support?
But at an individual level, I guess if you donate sperm, you should make sure that a doctor administers it and that the couple planning to raise the child has sufficient resources to do so.
“In general, the status of individuals of the opposite sex living in a relationship that the state would treat as husband and wife is, for Federal income tax purposes, that of husband and wife….”
So if you are common law husband and wife, should you file your income taxes jointly? Are you required to do so?
I’m wondering because cohabiting couples often use a tax loophole that allows them to pay taxes at a lower tax rate. If the household earns a total of $100,000/year in two $50,000/year salaries, for example, they can pay at the $50,000 rate instead of the $100,000 rate.
(To put this in perspective, that would mean the household was in the 80th percentile for household income, but paying taxes as though they were in the 50th percentile.)
So are common law cohabiting couples required to pay taxes at a married rate? And should there be a requirement that couples that cohabit for three years should start paying taxes at the married rate?
As a matter of policy, civil unions and domestic partnerships (where domestic partnership is a marriage-equivalent status) should be recognized federally as marriages, and in the absence of DOMA I imagine the federal government could do so. The catch, though, is that some states have offered such statuses as means by which elderly couples can evade federal marriage recognition, so the politics might be messy.
Diane, level headed, logical thinking Diane – why would you suggest that there is discrimination going on in Kansas? For Pete sake there is a child with two able bodied biological parents who are perfectly capable of each contributing their fair share of physical and financial support to a child they did not just create – which is by the way all it takes to be held responsible …they created this child on purpose. Not that the on purpose part should make any difference to the child that needs to be fed but its just galling to read article after article comment after comment by people who think this child does not deserve the financial support of the people who freaking made her! Why do we allow anyone under any circumstance exemption from being accountable to and for their offspring without at the very least going to court and giving the child up for adoption so that the circumstances leading up to the adoption can be investigated and determined not to be a situation where he made his own child to serve as a human gift for another person to raise play house with. Children are not their bio parents property and they should not be producing them on spec or commission for other people to raise – that is selling human beings which means they are not free and they were bought to serve a purpose. All a kid is suppose to do is exist and get raised by the people responsible for putting them here. If those people can’t do it – it means those people have let their child down and THEN you find someone to raise them. But we have made an industry out of failing our children to serve the demand for people who want to raise kids but can’t produce them.
It is so sad that there are so many abused, neglected and unwanted children in this world. It is a tragedy that their own families are not the best people to raise them and thank goodness there are good people in the world willing to help. We should be happy there are not enough abused, neglected and abandoned children to fill the homes of all the good people willing to help. Ideally everyone with offspring would be willing ready and able to happily and lovingly care for them in a safe and nurturing environment. That is the ideal situation where people carefully reproduce and take good and proper care of all their children themselves. That means that there would be almost no neglected or needy children and instead of striving for that, we go and manufacture children in some kind of an epic one night stand factory of contrived abandonment streamlined for maximum efficiency.
Sperm donor is what people call bad neglectful fathers because all they ever did for their child was provide the seed and walk away. Its a term said with disdain and with good reason the men they refer to are negligent and neglectful – they’ve abandoned their children. Its a bad thing to do. And yet we’ve set up a special system for men to abandon their kid’s on purpose for the benefit of others and all they have to do to avoid paying support to their own kids is have a doctor inseminate the women they get pregnant. That is so vile to me. How can I make a mess of kids to give away as gifts without ever having to worry about putting food on their plates when they are crying and hungry.
The UPA is federal law and it requires that state’s go after the fathers or mothers of children who are receiving public assistance because it’s notbody else’s job to take care of their kid but them. Has nothing to do with the mother’s sexual orientation it has to do with the fact that child is entitled to her father’s support even when the mother is not on welfare and in fact the mother is doing the child a disservice by not having sought out the support that her child was do independent of the state case regarding welfare. This kid should have been receiving support from this man all along and its only now that the state is having to pay for it that they are going after him but she should have long ago. It is not her partner’s job to be the parent and support this kid regardless whether the relationship with the mom works out. Why can’t the kid have support from both parents that she deserves and plus have the benefit of whatever additional income her mother might enjoy from being married to a man or a woman that is a step parent? Nobody is stopping these people from cooperating to give the child everything she deserves and more. It’s pittiful to see people trying to get this man out of having to take care of his kid. It’s pittiful to think people see it as OK to privately contract the other parent of your child to dissappear and abandon your child so you can have them all to yourself.
When people are reading articles about this case or any case where child support by a donor is causing an outrage – ask why the kid deserves less than any other child whose bio parents are separated ask why they can’t just have step parents like the rest of the kids in the world ask why their parent has to be totally replaced or eliminated and ask how that benefits the kid involved. Don’t say it has to happen or they would not exist that is a cop out. People exist and they need to be treated fairly. People who don’t want the responsibility of raising children have been avoiding having children for eons and we don’t hold funerals for all the neglected kids they never had. Birth control is what responsible people practice if they don’t want to take care of the kids they’d otherwise have so if donors don’t donate they because they are affraid of having to support their offspring it is no big tragedy its just them practicing responsible reproduction its birth control. Sorry if the storehouse of neglected foundlings runs low but its a good thing and people will just have to suck it up and wait for a real tragic orphan to come along. At least they won’t have the guilt of paying for them to be abandoned on their heads.
The situation in Illinois, Delaware, Rhode Island and possibly other states seems to confirm that critical mass was achieved in marriage equality. Blue state legislatures are in a rush to demonstrate their fair-mindedness.
As more states are added, it becomes increasingly preposterous to claim that marriage equality has some mysterious effect on “traditional” marriage. Thus, like most chain reactions, the energy increases.
By the end of 2013, roughly 40% of the citizens of the United States could be living in equal marriage states. Some people we know are going to need a new hobby.
Eh.
I acknowledge that people experience hardships when they confront changing social (and legal) norms. Once upon a time there were no legal consequences for sexual harassment in the workplace – until there were. And the first guys who got held liable may very well feel aggrieved. That’s rough justice for them – but any alternative ruling would be even rougher justice for others.
As a general proposition, I believe people should be held liable for the foreseeable consequences of their actions. When I donate sperm, I can foresee that a child might result, and I know that child rearing costs money.
If I enter into a contract with a private parties to assume my liabilities, that contract should bind me and the private parties. But the contract doesn’t bind any third party; otherwise, I could evade responsibility to pay my credit card bills simply paying an indigent person $20 to assume them. So a contract between a sperm donor and a couple should bind the sperm donor and couple – but it can’t bind the state. Absent some contrary legal principle (e.g., a law absolving the donor of responsibility), the state is free to seek remedies from the sperm donor, and the sperm donor is free to seek reimbursement from the couple. If the couple lacks the resources to reimburse the sperm donor, well, that’s a shame – but it’s not a reason that the state should be left holding the bag.
The 2007 case involved the relationship between the sperm donor and the mother. In contrast, the current case involves a relationship between the sperm donor and the state — an innocent third party. I see no incongruity in holding that a sperm donor can unilaterally choose to surrender his own rights (regarding paternity), but that he can’t unilaterally choose to surrender the state’s rights (for reimbursement). He can’t surrender rights that belong to third parties.
Tough break for the sperm donor. And yeah, maybe he could make a discrimination claim if he can show that the state is pursuing reimbursement from him but not from similarly-situated men donating sperm to heterosexual couples. But that’s the only defense that occurs to me at the moment.
@marilyn – If Kansas wouldn’t make a straight couple provide help finding the genetic father in order to get benefits, then it’s discrimination.
Back to the question of benefits in Kansas – from what I can tell on-line, Kansas does allow two parent families to get assistance.
However, when the parents are both the biological parents of the child, then you will look at the incomes and needs of both parents.
In Kansas, you will are also required to include a step-father (married to the mother) in the household unit.
When the child lives with a biological parent and an unrelated man who is not married to the mother, you can leave out the unrelated person.
In other words, a biological parent or a married step-parent might make a mother and child unit ineligible for assistance, if the second parent earned enough money.
But a woman who lives with you and is not married to you will not be included in figuring out assistance, as far as I can tell.
@nobody really – But if the sperm donor had given sperm to a sperm bank which then anonymously gave it to the mother to use, the state would just have to pay for the baby. That doesn’t seem fair to me.
I think you have to have one standard for sperm donors – either they are all responsible for the babies made with their sperm, or none are. And they have to agree to that ahead of time.
True, it seems equally foreseeable that the conduct of donating sperm may result in the creation of a child, whether I give that sperm to a sperm bank or to a woman directly. Thus, it would seem to make sense to have a uniform policy of financial liability that would apply to sperm donors in either circumstance. Good point.
But does the fact that Kansas has a non-uniform policy render the policy “unfair”? Yes — arguably Kansas’s policy is unfair to taxpayers, in that they may needlessly bear expenses that arguably should be borne by a father. But that does not render the policy unfair to the sperm donor in question. The idea that Kansas is irrationally lenient toward men who donate sperm to sperm banks does not create a basis for grievance on the part of men who donate sperm in some other fashion.
So, in short, no: Although you and I may agree on the merits of having a uniform policy governing all sperm donors, I disagree that Kansas has an obligation to adopt such a policy.
And no, “they” do not have to agree to anything ahead of time. The idea that people should be liable for the foreseeable consequences of their own conduct is imbedded in the common law, and everyone is presumed to understand it. Should we tell tobacco companies that they can never be held liable for the harm that their conduct has caused because … well, we never held them liable in the past, and springing a liability claim on them now just wouldn’t be cricket? Tobacco companies make that argument; I, at least, am not persuaded.
nobody.really:
I can’t fault your legal analysis as far as it goes. Surely a K between two parties can’t bind someone not a party to it, and one reason the law that applies (or doesn’t) to this case in the first place was enacted was to provide a clear delineation between medical sperm donation (whether anonymous or not) and, um, everything else. This case falls in a gray area (or perhaps not even), so it’s hardly surprising that the state is trying to get some money.
My only point (after all, I wrote just two sentences!) was that this kind of result, if it stands, is going to make people less likely to donate sperm in the way this guy did — altrusitically, without payment — and likelier to go the anonymous sperm donor route. The law of unintended consequences and all that. So if we don’t want that to happen, we should be concerned (if in fact we think that a case like this will in fact change the incentives, which seems likely. Or maybe people will just be more careful about making sure the law is followed.)
Nobody really I am so stoked that you wrote that. Someone finally gets it . Youre making so much sense.
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The problem is when the law forbids something like abandoning your children physically and financially, but makes exceptions under certain circumstances for people in the donor category, the donor’s offspring are clearly not treated equally to all other children with human parents. It becomes a clusterfk like state approved marriage for same sex couples when the feds don’t aknowledge it you need to fix the federal law and make all states comply you can’t have the law at odds and expect it not to screw people over. donor offspring are equal with kids whose parents are in the donor category, but as human beings go with human parents they are being treated unfairly and we are not talking about something as important as say the right to vote we are talking about the right to a genetically accurate identity and the right to food and shelter from the people responsible for creating them. The right not to be the human object of a private trade agreement. The right not to have their life commissioned by people willing to pay their bio parent not to raise them. Having the right to be supported by only one parent rather than two like everyone else is an enormous and unfair compromised position to put a child in for no good reason. With sperm banks there are records with the identifying info on men who are the fathers of these donor offspring and they are likely able bodied employed men and there is not a reason in the world the children they create should not be supported by them. Makes no difference that these children may also be raised by the spouses of their rearing bio parent – lots of kids have step parents and still receive support from the men who created them because they are the one that reproduced, they are the one responsible, they are the medically relevant party for birth and vital record purposes that is the family the kid should not date – all of it.
There is no reason that benefits the child for exempting donors from taking care of their offspring. If they really want to donate the rearing experience of their children they should do it while maintaining responsibility so that their offspring loose nothing that is owed them by their bio father, benefits support etc. Step parent have a legal obligation to share their income with their spouse who then provides support to the child so its not like the spouse would not be supporting the kid anyway at least as long as the marriage lasted. The kid gains nothing from having one or two bio parents be exempted from responsibility. It really is pointless from their perspective. If the adults really wanted to go through with the give away the least they could all do is cooperate so that the child lost no contact or support with bio family and gained a step family. That would be the adult reasonable unselfish way to give someone the gift of helping them start a family. But adults are too jelous and possessive to cooperate to the childs benefit so the child looses half of everything and freedom and their identity all to honor one bio parents ego and the facade they want everyone to believe. Sux.
I also don’t see the issue with the Kansas law. A biological father is a legal father except in special, defined circumstances – such as the conception having taken place in such a way that the father is legally a “sperm donor”. That’s not what happened here; they didn’t follow the law, Dad doesn’t qualify as a sperm donor and the taxpayers want their money back.
Now, if Kansas was letting heterosexual couples or single moms get by but was only seeking recompense from sperm donors to lesbian couples, that would be a different matter.
And so is the fact that if the women were permitted to legally marry in Kansas, their child would likely have been presumed to have two marriage parents – just as for straight couples.
Mythago you said this plainly and accurately. The state is required by federal law to attempt to get parents to take care of their children before providing the child with emergency money and services. This is reasonable. Any parent who approaches the state for assistance with raising their child triggers the state’s goal of securing support from the other parent rather than state tax payers. The fact that that the gender of her ex partner is female is not germane to the state’s investigation. That woman is a legal stranger and its not the state’s concern as to why that is the case.
Yes had they been married sadly that person man or woman would have been treated as the parent rather than the step parent. Luckily that is not the case and the child still has her rights intact and can get support from the father and also from either parent’s spouse as a step parent during the marriages. It’s in the best interest of the child not to assign parenthood to a partner who is unrelated. Millions of kids have step parents who improve the income of the partnered parent – meaning the child benefits when separated parents pair off and get married to someone else. Step parents are good financially and security wise for kids whose parents are separated. Medical benefits and all sorts of benifits are available to step children. The spouse does not have to become a legal parent to be a vital contributor to the child’s life without sacrificing the legal relationship between a child and the child’s bio parent
RE: The Kansas sperm donor case:
“Hey, sperm donor, don’t answer that Craigslist ad!”
http://usnews.nbcnews.com/_news/2013/01/03/16326826-hey-sperm-donor-dont-answer-that-craigslist-ad?lite
John writes:
Julie Shapiro adds insight here:
@Karen, either the attorney quoted in that article had what she said chopped up by the reporter (which is plausible) or she’s incorrect; the issue is not “the law has not caught up with this”, the issue is that people don’t understand that you can’t just sign a contract for whatever and have it be legally binding, particularly when it comes to family law. This is why lawyers have a saying “pay me now, or pay me later”.
Which, again, highlights why marriage equality is important. The sperm-donor laws were put into place precisely so that if a married couple used a sperm donor, the husband’s fatherly rights to his wife’s children remained intact. If the couple had been male/female instead of female/female, they could have legally married in Kansas and none of us would be reading about this story, because the state would not have gone after the donor.
Mythago, I absolutely agree with you about this:
But I’m very much on the fence about this:
I have big concerns about the number two as the primary requirement of “marriage” as a legal contract pertaining to procreation and responsibility (mothers/fathers/family/identity/siblings etc.). And that is what the controversy re: redefining marriage, legally, is primarily about. That said, I also have big concerns with (hetro) marriage in general glossing over the problem of men and women using 3 party gametes and wombs.
How do you feel about singles using these methods of conception?
Why does the law give a husband the right to claim that he is the father of his wife’s child when he is in fact not the father of the child in question? Why do we act like it is a man’s ‘right’ to be the father of his wife’s child? Does marriage give a person the ‘right’ to procreate with them? No. His wife does not HAVE to let him procreate with her, she does not belong to him she is not his property and neither are her children. Heck her children are not even her property, they are people.
As a minor you don’t want the “Right” to have your mother’s husband act as your father…you want the “Right” to have your father act as your father whether he’s married to your mother or not. A minor should have the right to have their mother’s husband act as the step father he is.
I’m very upset about the fact that marriage seems to rule reality here. If your married all of the sudden you have some right to manipulate records and bend the truth for the good of your marriage.
Marriage is a contractual relationship and spouses have joint property but children are people and should not be treated as joint marital property they should be treated as the living obligation of their genetic parents to care for regardless of their personal relationship together.
Why do we have a legal exemption for some people not to take care of their children if they conceive in a medical setting? Why do we have a whole industry set up to allow people to abandon their offspring without penalty. It may be good for marriages but it is sure not good for the abandoned offspring
“Why does the law give a husband the right to claim that he is the father of his wife’s child when he is in fact not the father of the child in question?”
Well the laws date back before paternity tests existed, and assumed that adultery was as rare as murder, not unheard of but certainly not condoned or allowed for. Sometimes people broke the law and took advantage of the husband’s presumed status as father of his wife’s children, but the law wasn’t for them, the law exists for the 99% of people who are their mother’s husband’s children. Today, we have paternity tests and rampant breaking of adultery laws, and judges are starting to ignore traditional presumption of paternity and look at the facts of each case, which is appropriate.
“Why do we act like it is a man’s ‘right’ to be the father of his wife’s child?”
Gee, because it certainly is a man’s right to be the father of his wife’s child? There is no other person who has a right to be the father of his wife’s child except him! His wife does not have a right to any other person’s sperm, nor does he have a right to any other woman’s eggs or womb. Each has a right to be the other parent of any children their spouse has, and fully expect paternity tests to confirm that.
“Does marriage give a person the ‘right’ to procreate with them? No. His wife does not HAVE to let him procreate with her, she does not belong to him she is not his property and neither are her children. Heck her children are not even her property, they are people.”
Well, refusing to procreate with your spouse is grounds for divorce, if it is permanent. It is essentially demanding a divorce that ends the marriage, which is an ongoing consent to procreate together. They don’t have to go through with it, they can reconcile if they want to, or maintain a “sham marriage” like Rhett Butler and Scarlet O’Hara. And it is not a right to do ART with the spouse’s frozen egg or sperm, the consent has to be freely given each time, and there is no right to do ART anyhow.
Ricardo, I’m trying to understand but you are confusing me. Where is there a law that says having sex with someone who is not your spouse is illegal? There is no such law. If there were such a law what would be the punishment? I can see where it is breaking a promise but that is a private matter no court gets involved there. A woman does not owe it to her husband to get pregnant by him. Can you quote some actual family code from your state because this is way outside my realm of understanding.
What do you mean grounds for divorce? Marriage is a contract that either can get out of at any time for no reason at all they just have to be prepared to split up their property and whatnot and children are not their property
Woah dude there is no right to procreate with anyone. You don’t have a right to anyone else’s anything. People have the right to procreate themselves with other people but a wife has no right to her husband’s sperm
Adultery is illegal in about half the states, and ought to be illegal in all of them. My state: “Section 14. A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.”
Don’t get me started on whether IVF or AI is sexual intercourse, I contend that it is, by the spirit of the law.
True, now we don’t need grounds for divorce, but back when you needed grounds for divorce, refusing to have children was grounds for divorce. It still is, you can divorce a spouse that refuses to have procreative sex with you. You can’t force them to procreate with you, but you can divorce them if they refuse to. And you can divorce them if they procreate with someone else. A wife ONLY has a right to her husband’s sperm.
You can divorce them for nose picking snoring and griping too much as well. What state do you live in?
Ricardo: Adultery has traditionally been held to require actual physical intercourse. You say that the “spirit” of adultery laws should cover the use of donor sperm, but, with all due respect, I think that’s ridiculous. For one, it suggests bringing back the archaic conception of adultery laws as being about providing a husband with security that his wife’s children are his, which makes much less sense in a world where paternity need not revolve around biology and where contraception, non-procreative sex, and genetic tests are common. For another, it ignores the fact that while a husband rarely consents to his wife’s adultery, he is likely to consent to his wife’s use of donor insemination. To the extent that adultery laws today have any good justification (I am skeptical), it lies in preventing harm to the spouse who is being cheated on, and that is obviously inapplicable to donor insemination.
As for the notion that marriage is somehow by definition a sort of perpetual consent to procreating together, I think a lot of intentionally childless married couples would disagree.
Well you sue showed me. Good grief I had no idea it was illegal.So you mean I can like call the cops and they’ll come arrest my husband for cheating on me? Do they have to catch him in the act or will like phone records do the trick? My gosh I have years and years of evidence of affair after affair after affair… to whom is the fine paid?
What’s funny about the fine actually is that the married person would have to pay the fine out of his or her joint marital assets and of course that has to sting the cheated on spouse because not only did they get cheated on but they have to pay a fine for it as well. It’s just all kinds of complicated isn’t it?
If they enforced that law there would be no judges to hand down verdicts, no lawyers to try the cases, no balifs to swear people in, no cops to catch them in the act, no dog walkers no nuthin there would be not a single store open for business the whole world would shut down if people went to jail for cheating on their spouses. Honestly you show me a couple married for 45 years and I’ll show you at least one spouse that has put up with a cheat for just as long. All men cheat. Does not mean they are bad people but all men and a good portion of women cheat.
Men are as faithful as their options. If they can they will. It’s how they are built. Their poor little minds think sex every couple of seconds they all cheat. The most naive thing a female can do is to think she’ll ever be both fun and family to the same man. Ain’t going to happen. Think I’m bitter? Yup you bet but I’m also grounded and practical. A wife is nothing more than a one night stand that would not go away. It’s always our idea to get married, not men. Ever notice that? If they had their way they’d never get married.
JHW here is the thing about the husband consenting – how do we make this mental leap from an open marriage where you don’t mind if your spouse procreates with another man to the absurd and mind bendingly rude act of pretending to be the father of her child by that other man? Its fine to not be bothered by her having a child by another man but exactly at what point does it become OK to put on the big charade and steal a child’s identity and undermine their rights to their own family etc?
I fail to see how not being bothered by the sex or at least sexual reproduction has anything to do with pretending the chid is a product of their marital bond.
I think the assumption that the child was the husbands was a way to protect the child. It meant that they were not labeled illegitimate and that they could not be disowned by a jealous guy.
Things have changed, but I think it might sometimes be better for a child to be raised by their mother’s husband than to get child support from their biological father.
When Diane and for whom? In what way would the child benefit from not getting to be a member of his or her own family? Who does that benefit? Even if he is a crappy guy who does it benefit to lock the kid out as a member of his or her own family?
@Karen, I can’t quite parse what you’re asking. The law in every state has a long-standing “presumption of paternity” – assuming that if a couple is married, the husband is the legal father of the wife’s children. That presumption can be rebutted (set aside), in varying circumstances; for example some states allow a third party to claim he is the biological father and some don’t, some set a time limit, etc.
There are many reasons for this, including the old view of children and wife as the father’s property, but less offensively, the idea that when people get married, we generally assume that they are assuming responsibility for children of that marriage, and that they aren’t sleeping around (i.e., we don’t want them to have to prove that the father was the husband).
I am less concerned about ‘singles’ than I am about anonymous donation, which I think is almost always a very bad idea.
“Presumption of paternity” cannot apply to same sex households no matter what their sexual (or non-sexual) interests in each other are…any more than “presumption of paternity” could apply to 3 or more party households. It simply makes no sense. Knowing a name is all you are concerned about?
@Karen: Yes, it can apply if they are married. The presumption exists in male/female marriages as a matter of law regardless of whether it’s possible that the husband could be the father. (For example, if he was infertile, or if he were overseas during the year before and after the child was born.) Many (if not all) states also have ‘presumed father’ as a category for unmarried men who claim to be a child’s father. Legal parenthood is not limited to whose DNA you have.
I’m not sure what the ’3 or more party households’ issue is. Is this the argument that we can’t allow two women to marry because then we have to allow five men to marry?
If I’m understanding you correctly, your defense for neutering and redefining “marriage” in relation to procreation and responsibility is that it’s ethically and socially a good thing because a child (of a 3rd party) will be off the government toll and assumed to be “wanted” and cared for. Is that correct?
So would you then think that a single person using a “donor” is ethical and socially a good thing as long as the child knows their father’s (their mother’s “donor”) identity at 18?
Is that logical? Is that an equally ethical and socially good thing?
Would it matter as a matter of social interest whether or not that child can be fully supported by a single parent household or not?
Would the larger public care if more often than not these single parent households needed the public taxpayers support?
Is that all it boils down to?
Why not 2 or more women and one man? Or any other variation? What does marriage mean and why does the government and society have an interest in it?
What does sex have to do with it?
Karen: Imagine two cases.
Case 1: A woman in a committed romantic relationship with another woman, who due to state law has no access to marriage or a marriage-equivalent legal status, procreates via donor insemination. She and her partner are for all functional and social purposes the child’s parents, and identify that way and are regarded by their child in that way, but under the law of her state, only she is recognized as a legal parent, with the associated rights and responsibilities. If the couple breaks up, her ex-partner has no obligation to the child (for example, to pay child support), and she has no obligation to provide access to the child to her ex-partner (a woman who is, again, for all practical purposes the child’s mother.)
Case 2: A woman in a committed romantic relationship with another woman, whose relationship is formally recognized as a marriage, a civil union, or a domestic partnership, procreates via donor insemination. She and her partner are for all functional and social purposes the child’s parents, and identify that way and are regarded by their child in that way. This time, however, by virtue of a presumption, or perhaps by virtue of a state law providing that consenting spouses of women who use donor insemination are parents of the resulting child, her wife is also deemed a legal parent and also has legal rights and responsibilities with respect to the child. If the couple divorces, her ex-wife has support obligations and the parental relationship between her ex-wife and the child cannot be terminated by her unilateral action.
In neither case does the biological father play any role here. He is not lurking in the background in Case 1, waiting to claim paternity, but barred from doing so by the law in Case 2. Typically he is an anonymous donor, and except in rare cases like the one described in John Culhane’s post, he is not going to be held liable for support or otherwise have any involvement in the child’s life. (Maybe that’s a problem our law should address better, but that doesn’t have anything to do with this question. Not offering recognition to same-sex couples does not do anything to address that problem.)
Now, which do you think is better for the child, Case 1 or Case 2? I think the answer is clearly Case 2. And I don’t think that requires thinking that donor insemination, anonymous or otherwise, is on the whole a good thing. It requires recognizing that, once a child is in a s situation where he or she has a child-parent relationship with two people, that relationship should be legally recognized and protected, not disregarded as irrelevant.
And how exactly does society define a “donor”? Simply by intent? So a man intends to reproduce with out intention of being legally, emotionally, financially responsible but as long as it’s done with a women’s (and maybe a partner’s – male or female – consent)…. He’s a mere “donor”…but ethically we, as a society, are only concerned about that child not being a leach on the taxpayer and maybe just maybe, just to be nice, maybe on the fringe, support the idea at least that knowing their father’s (their mother’s sperm donors) identity at 18 is a nice thing to throw in?
But all of this is perfectly okay if it’s done within a “marriage” (hetro/same sex) and the taxpayers don’t have to pick up the bill???
This kind of “donor” could be applied to all kinds of situations….”dead beat dads”, “egg donors” and “traditional surrogates”…..
Case 3: An a-sexual woman who partners up with a her best friend (another a-sexual woman) wants to have a baby and not have to deal with the man (who is the biological father) who wants anything from her or her potential child. She and her friend find someone on the internet (or substitute a bar, social function or acquaintance…) who agrees to give her his sperm (via a vial or coitus) with the intention of no strings attached.
Baby conceived and born. Loved and wanted?
Case 4: A single woman wants to have a baby and not have to deal with the man (who is the biological father) who wants anything from her or her potential child. She finds someone on the internet (or substitute a bar, social function or acquaintance…) who agrees to give her his sperm (given either via a vial or coitus) with the intention of no strings attached.
Baby conceived and born. Loved and wanted?
Case 5: A heterosexual “married” woman wants to have a baby and not have to deal with the man (who is the biological father) who wants anything from her or her potential child. She find someone via a sperm bank or doctor who agrees to give her his sperm (given via a vial) with the intention of no strings attached.
Baby conceived and born. Loved and wanted?
LOVED AND WANTED
http://www.mirror.co.uk/news/uk-news/the-sleazy-world-of-internet-sperm-donors-1520835
your defense for neutering and redefining “marriage” in relation to procreation and responsibility
Karen, not only is this inflammatory, it doesn’t even make sense. What do you mean by this?
The entire point of ‘presumed paternity’ is to strengthen marriage and provide a framework for children.
The entire point of strictly limiting when a biological parent is a gamete donor (as opposed to legally a parent) is that we want the default to be, if you are a parent you are responsible for your children, with very few and specific exceptions.
As to what is ethical vs. what is legal, there are all kinds of things people do that I believe are unethical but which are and really, should be, legal.
Karen, to whom were you responding with your Case 3, 4, and 5? It seemed a non sequitur.
JHW brought up two similarly situated couples and pointed out how a legal change –same-sex marriage –would help children.
You brought up three different situations which might be less than ideal for children. But your examples were completely unrelated to SSM, and you didn’t explain what it is that you are arguing for…
Right. The entire point of letting a false presumption of paternity stand is to keep the marriage together even if it means tearing another family apart. The romantic relationship is more important than the parent child relationship. Children as property of the marriage is a premise never more clearly articulated than in a child who is the product of a couple who are not in love together but with others.
If a person has a biological child with someone they are not in love with the child is worthless and is easily thrown away. That is why we say that it’s OK for donors to have offspring that they don’t raise, because there is no marriage there for them to strengthen and they serve no useful purpose to their parents. If a bio parent does keep them it is only on the condition that the child serve to strengthen their marriage with someone who is not their other parent. They must reject the other parent entirely and live as if the rearing parent’s spouse was their parent. Their job is to strengthen the marriage of their bio parents and if they cannot do that they will be discarded the way the donating parent discarded them but keeps the children they create with a spouse. Those children are not their siblings because only good children that serve to strengthen marriages deserve membership in the family, deserve love deserve care. They too will deserve care and love if they pretend not to be the child of people who were not in love all they have to do is pretend to be someone they are not and everyone will be happy.
Right. The entire point of letting a false presumption of paternity stand is to provide the framework for a facade to conceal the child’s foundation; the bedrock of their being and the cornerstone of their existence is not something they build upon but rather over – with that framework of false premise, false presumption.
The entire point of strictly limiting when a biological parent is a gamete donor (as opposed to legally a parent) is that we want the default to be, if you are a parent you are responsible for your children, with very few and specific exceptions.
As to what is ethical vs. what is legal, there are all kinds of things people do that I believe are unethical but which are and really, should be, legal.
Sorry I meant to put the last two paragraphs of my last comment in quotes:
As to what is ethical vs. what is legal, there are all kinds of things people do that I believe are unethical but which are and really, should be, legal.
Right. The entire point of strictly limiting when a biological parent is a gamete donor (as opposed to legally a parent) is that we want the default to be, if you are a parent you are responsible for your children – So why is it that we would not want those people to be responsible for the children they are creating? Why would we want anyone to go out of their way to produce offspring that they were going to neglect and abandon? Aren’t there enough neglected and abandoned children in the world for 20 lifetimes?
I guess not. I guess there really are not enough abandoned neglected children to go around to serve the needs of all the people who want to be parents either alone or with someone who is unable to reproduce as their partner. We don’t really need two parents to neglect and abandon their offspring really all we need is just one neglectful and careless parent most of the time because many people have spouses that they’d like to raise children with but can’t because they would need to make a baby with a bad and heartless person that would not care about their child and would leave their child unsupported – thereby leaving room for their wonderful spouse to take over for the estranged and absent parent.
Children as property. That is what this is. Biological property to be sold to serve a purpose.
Children whose parents are relationships with other people benefit when those relationships are formalized as legal marriages because then they have the support of their two parents plus the added benefits associated with having step parents. The amount of support a parent can afford to provide is greatly improved by the added income of a spouse who is their step parent. Part of getting married is to assume responsibility for your spouses debts and the support of a child is certainly a debt owed to the child. So the child’s financial situation is greatly improved by the parent’s partner being made a spouse because step parents are legally obligated to support their step children to the same extent as they would have to support their own children. The child gains without loosing support or contact with their parent who they may not be living with. Also step relatives have access to various benefits as long as the marriage is intact like being on a step parent’s medical insurance or social security death benefits if the child was claimed as a dependent relative on the step parent’s taxes. Step relatives are also relatives for accessing other state services and for the purpose of various family leave act claims such as taking time off to care for a sick step parent or step child or step sibling or taking time off to attend the funeral of a step relative. Yes the child of a couple that is separated benefits greatly when those separated parents are married to their significant others without loosing contact with or support from either parent. They are also able to maintain their rightful identity as the child of their parents and retain legal recognition as kin to their genetic relatives meaning that they will be able to take time off work to attend their funerals and will be able to take time off work to care for one of them if they are sick or my help one of them immigrate to the united states or claim one of them as a dependent on their taxes should they ever need to. All of that is lost however when a step parent is named as a legal parent either deliberately or accidentally. We have adoption to give people authority over children that are not their offspring but step parent adoption is almost as destructive as simply naming the step parent as a parent straight away. Only slightly better for the accuracy of medical records and vital statistics.
So it really does not matter if a person’s parents have same sex partners or not – they would benefit from their separated parents getting married but not to make their partners parents – they benefit by making them step parents. They LOOSE when they are treated as parents. It makes no difference even if the parent is an unknown donor the minor still losses the right to be considered family if they ever figure out who he is or who their relatives are which is not fair to them. They’d get the same support and love with the partner as a step parent and they would not loose any rights. So I say recognize same sex marriage and stop the presumption of paternity based on marriage and maternity based on giving birth and if the presumption is impossible due to gender then tough luck if the presumption is ever determined to be based on false information then correct the record and restore the persons rights. Make all people equally responsible for their offspring. So either get rid of paternity suits and child support based on paternity testing or get rid of allowing donors not to be required to support their kids. Stop manufacturing the tragedy of the one night stand to strengthen marriages. Children are not suppose to strengthen marriages its not their job.
marilynn: Step-parent status is limited and doesn’t solve the problems involved with social-functional parents not being legally recognized as parents. (That’s one reason people pursue step-parent adoptions.) It’s an appropriate limitation where there are two pre-existing parents with legally recognized parental rights and obligations with respect to the child. But this is simply not a realistic description of the circumstances obtaining when anonymous sperm donation is used. In practical terms, the choice is between the child having two legally-recognized parents (corresponding to the two people who actually act and are regarded as her parents) and only one legally-recognized parent (corresponding to only one of the two people who actually act and are regarded as her parents.)
(It’s interesting, incidentally, how the direction of this discussion confirms John Culhane’s point about the Kansas case. You know one way to guarantee lots of resistance to an end to donor anonymity? Suggesting that donors should be legally recognized as parents, complete with child support obligations. Of course, one conclusion you might draw from that is to side with what I take to be Karen’s view, that the message compromises involved in making “reformist” proposals like ending anonymity just end up reinforcing the legitimacy of the practice of donor conception itself.)
I don’t think so, the point of presumed paternity is to make sure that someone will be the kid’s father.
There was a time when there was no other way to determine paternity.
But even now, the only alternative to presumed paternity is mandatory DNA testing which would be unconstitutional, or voluntary acknowledgement of paternity which makes parenthood nothing but a choice.
true marilyn, aren’t you so concerned about a kid’s right to support? why would you want to take the step parents support away from the kid just cuz you’re upset about some other adult some where getting off the hook?