Biology is neither necessary nor sufficient to create a legal parent. A new Delaware Supreme Court case, Adams-Hall v. Adams, illustrates this point in an unusual context and gives food for lots of thought.
Christine Adams-Hall and Robert Adams were in a sexual relationship. In November 2007, Christine told Robert she was pregnant with his child. She asked him for a semen sample, alleging that she wanted to have it tested to see if Robert was a carrier of cystic fibrosis. She asked for another sample in February 2008, telling Robert there had been blood in the first sample. Later, Robert contacted Christine's obstetrician, who told him that an intra-uterine insemination procedure had been successfully used in February 2008 to produce Christine's pregnancy.
When the baby was born, Robert filed a petition to determine parentage, and the trial judge ruled he was not a legal parent because he had not signed a written consent to Christine's insemination with his semen, per the Delaware parentage statute that says a man who does consent to a woman's insemination in writing, with the intent to be a parent, is a parent. The trial judge believed Robert's testimony that his sexual relationship with Christine ended in January 2008 (she claimed it was April).
At first read, this opinion makes complete sense. Christine deceived Robert into providing a semen sample for her insemination and so he "shouldn't" have a legal obligation to a child he did nothing to conceive. But remember that he gave the first sample in November 2007. Had pregnancy resulted then, he would certainly have been considered the father, as he admitted having a sexual relationship with Christine until January 2008. No court would have parsed which method of conception actual created the pregnancy. Plus, the law books are filled with cases in which men having sexual intercourse with women claiming to be infertile or on the pill have been required to support children born to those women when it turns out the woman was deliberating lying in an attempt to conceive a child, knowing the man would not agree.
The theory in those deception cases is that the child shouldn't suffer, translated into the child should have access to the father's economic resources. Well that theory applies equally well to the child Christine bore. Yet the court does not discuss it. The donor insemination statute the court cites is not, after all, the only method by which a man becomes a legal parent. An unmarried mother can normally bring a parentage action against a child's biological father based on biology. That the court ruling is silent on this part of the state's parentage statute is notable.
I agree with the court's ruling. But I believe a woman should have to option to conceive a child with no legal father, even by sexual intercourse. It's just that the courts don't usually buy that. And I think of what would have happened in the following circumstance: Christine bears child without Robert's knowledge and never files a parentage action; he later finds out that the child was conceived with his semen and he wants a relationship with his biological child and he files for visitation rights and the imposition of a child support order (or even for custody!). I'm willing to bet the court would say he was a parent.
If the take away from this case is that intent matters, then I am all for it. And if the takeaway is that the best interests of the child (never mentioned in the case) does not require a legal connection to a biological progenitor, I'm for that as well. But then intent should matter without the deception part, and it should be a lot easier than it generally is for a woman to have a child with no legal father. And intent should strongly figure in the creation of legal parentage, something the same Delaware Supreme Court rejected in a case involving a lesbian couple raising a child legally adopted by only one of them (see my post here). That case inspired the legislature to create a path to parentage based on intent and function (see my post here).
It can't just be that the three male judges on this Delaware Supreme Court panel identified with the indignity of Robert's situation, can it?