Comments tend to get lost on this blog. I thought the following exchange was interesting enough to post separately:
Comments tend to get lost on this blog. I thought the following exchange was interesting enough to post separately:
Ms. Kates…I respectfully disagree with your analysis as you neglect to consider that individuals under the U.S. Constitution are afforded the right to due process, which I’ve been denied in this case. In addition, the U.S. Supreme Court has recognized that when there is a relationship between a parent and child it is to be preserved and protected. In the case at issue, I am not a stranger to my son as I had a relationship for the first few months of his young life. Furthermore, the Supreme Court have recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their children that does not evaporate, Santosky v Kramer. There are procedural safeguards when someone tries to terminate a natural parents rights without a hearing, parents and childrens’ rights are fundamental in regards to termination of parental rights. Of course you are arguing that no man who is not married to a woman should have any rights. If I’ve understood your position correctly. Under the recent KY Supreme CT ruling if a married man gets a single woman pregnant and takes possession of the child, as long as his wife and him do not dissolve their marriage the biological mother has no parental rights. In theory I believe this would be correct, but of course we know that would never happen because it goes against common sense. Regardless, we will just have to see how the U.S. Supreme Court feels about the rights of a biological parent who happens to be a parent. I’m one of many who believe the truth does matter and should still play a role in justice.
Posted by: James Rhoades
We share DNA with all living things, yet even some of our very close relatives, such as siblings and grandparents, are not assumed to have automatic legal familial rights. We also recognize parentage that arises from other than biology, e.g. adoption, surrogacy, and gamete donation. We also have institutionalized marriage, which at its inception is the formation of nonbiological “family” which is not dependent at all upon the existence of children before the couple is recognized to be “family” to each other.
In no other area of the law do we recognize property rights in biological body parts, or following body parts that have left the body, whether cells from which vaccines have been made, or hair, or donated organs. In order to consider sperm and ova differently, we would have to make an arbitrary assumption about these half-cells that they are in some way different. Mostly, that assumption is not founded in reason, but in the premises of some (and not all) cultural and religious traditions.
I would argue that the United States constitution recognizes the liberty interests of actual families, families in fact, families that still would exist as coresidential and ocmmitted social units in the absence of law — and not the asserted property rights of individuals in and to the products of their discarded gametes.
I think it is an unwarranted presumption that sperm donors (or egg donors) automatically, and without more, have emotional attachments to other human beings they may have never met. We may inculcate some kind of real emotional issue for individuals in how they view their own genes and so forth, but this idea to me is what is the “property rights” (posssessory) versus “relationship” perspective.
I would suggest instead that the government’s intrusion into actual marriages and functioning families in order to elevate this pretense into an artificial notion of “family” founded on biology actually denigrates exactly what it is that the constitution recognizes and respects as the family.
“Family” is not DNA, a material so widely shared that the differences between members of an entire species are miniscule. Rather, it is the coresident social unit of individuals whose relationship “bonds” are evidenced in the way they live, by their actual emotional attachments born out of their habitual association with and knowledge of each other over time, and by their mutual support of and involvement with each other in a real family group — the kind that would exist even in the absence of law… or paternity testing technology.
Posted by: Elizabeth J. Kates, Esq.
Ms. Kates you can’t be serious? So you think biological fathers should have no rights and just because they share a genetic bond with their children the law should suppose they don’t carry affection towards their children? I know my viewpoint is skewed because the case involves my son who I care deeply about but I think your viewpoint is ridiculous. Surely you would never promote your interpretation regarding a biological mother? You have opinion makes children a piece of property and be damned with their best interest. And let’s throw Constitutional rights out the window too if a man was a child out of wedlock and petitions for his rights as a father. In all due respect, the Kentucky Supremes were totally inconsistent in the majority opinion. Cunningham had assumed biological fathers have a right to custody and visitation even without having their parentage ajudicated in his Hinshaw v Hinshaw opinion when he talked about Mrs. Hinshaw seeking to terminate the biological fathers rights so Hinshaw could have adopted the child. Seems kind of weird that Justice Cunningham would write that one biological father in one paternity case has rights while writing another opinion saying this biological father has no rights. Shouldn’t Cunningham be a little more consistent?
James Rhoades Real Father in Recent KY Sup Ct decision
Posted by: James Rhoades
The Kentucky decision was correct, and I am glad to see it. With the advent fairly recently of DNA testing, we have forgot that providing reproductive gametes is not necessarily what determines legal parentage, or is in fact sufficient to presume affection, responsibility, or enduring relationship ties. It is unfortunate that in this one area of the law, largely confused by religious and political agendas, and consequent erroneous precepts underlying child support theory, that even as we embrace broader definitions of “family” in some respects, so many legal scholars have simultaneously moved in the inconsistent direction of making unwarranted assumptions that equate legal rights and responsibilities with a tracing of bodily effluence.
Elizabeth Kates
