July 1, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
To coin a phrase, the more things change, the more they remain the same. For years we’ve allowed ourselves to believe that people had come to understand that conceiving and giving birth to children with the intention that they not have a father is a bad idea. Certainly that’s been publicized enough and organizations like Single Mothers by Choice have essentially vanished from the news. Plus, although single motherhood is still at astonishing levels, the rate among women with a college degree is about 8%.
But now we learn that, in British Columbia at least, the flame still burns. Read about it here (National Post, 6/26/15). Sure enough, women who’ve delayed childbearing until the 11th hour are now turning to some fairly bizarre ideas about how to have a child of their own without the input of a dad.
Now of course that’s not exactly a new phenomenon. BC women naturally are turning to the usual ideas such as in vitro fertilization with an anonymous sperm donor. In those cases, the law on the rights and responsibilities of the donor are clear.
[Monique] Shebbeare counts herself among them. Like many women, she envisioned meeting the right man and having a baby. But as she hit her late 30s, it still had not happened.
“I went to see a fertility doctor who basically told me, ‘You have no time left to wait for Mr. Right. If you want to become a mom, you need to do this right now.’ ”
Shebbeare used an anonymous sperm donor and gave birth to a girl. Her case was pretty straightforward, aided by recent changes to B.C.’s laws that make it clear a sperm donor is presumed not to be a parent unless he opts in ahead of conception.
That’s true in most jurisdictions in the English-speaking world. An anonymous sperm donor has neither rights nor obligations regarding any progeny conceived via his donation. In that case, and that case only, a man’s intention not to be a father prevails over the fact that he is a biological father. All other biological fathers have parental rights and duties. Why we make an exception for the anonymous donor, beyond a desire to support sperm banks and IVF clinics, is beyond me.
But, needless to say, BC women aren’t stopping there. And in the process they’re raising some interesting legal issues. What happens, for example, if a woman is married to a man who doesn’t want a child, but she does? What if she goes to an IVF clinic and conceives via an anonymous donor? In the fullness of time, she brings home a baby.
At the outset, the child is presumed to be her husband’s, but he of course can prove it’s not, so he, like any step father has no rights or obligations toward the child, right? Not so fast.
Where it can get complicated is if the woman using a sperm donor is also in an intimate relationship with a man who does not want to be a parent.
Even if they draft a contract ahead of conception in which he withdraws consent to being a parent, there is no guarantee it will stick if, down the road, the couple splits and she seeks child support.
If they live under the same roof, the man’s lack of a biological connection to the child may not matter; he could still be deemed a parent or step-parent and may not be absolved of related responsibilities.
Several years ago, an unmarried-but-cohabiting Alberta couple tried, but failed, to get the courts to endorse a written agreement that established the woman would have a child through an unknown sperm donor and the man would not play any role as a parent.
“Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?” a 2007 appeal court decision read.
That of course is the concept of the “psychological” father. And there’s something to it. As the BC court said, is it really likely that a man who lives with a baby will pay it no mind? The baby won’t know he’s not its father and will predictably try to bond with him. As a toddler, the child will want attention from him and probably get it. And once those bonds are formed, any pre-conception contract the couple may have signed simply doesn’t reflect the reality of the situation. And if we’re serious about the “best interests of children,” we won’t pretend it does.
There have been exceptions, but one good rule of thumb for anyone, male or female, to go by in deciding what to do about having children, is that contracts don’t matter. If a man considers that rule to be invariable, he’ll save himself a lot of heartache. States are serious about collecting child support from fathers and a piece of paper swearing to heaven that he doesn’t want to be a father and his partner agrees, is presumptively worthless.
Another scenario that fertility lawyers say is fraught with risk is if a single woman decides to conceive a child using the sperm of someone she knows, like a friend or casual boyfriend, but has no intention of having him be a parent.
Again, that’s straightforward. If the two have sex and produce a child, it matters not a whit what they agreed to, even if it’s in writing and notarized. The man is the father; he can assert his rights and she can demand payment. Period. No exceptions.
What might be a safer bet is if the woman is impregnated at home using a turkey baster, lawyers say. There is a greater chance the male friend could be off the parenting hook.
Or not. As I reported only last week, a Virginia man successfully asserted his parental rights in just such a situation. The turkey baster method of conception is one about which the law isn’t clear and the facts of each individual case determine whether the man is legally a father or not. We’ve seen cases in which a woman saved semen from a condom and, entirely without the consent or knowledge of the man, conceived a child for whom he was held responsible.
Again, the rule is that the biological connection makes a man a father irrespective of everything else. Specific jurisdictions differ, but heeding that rule is the safe route for men.
What’s left entirely unmentioned by the article are some fairly obvious things. The first is that, as a general rule, women should be more responsible than to insist on conceiving a child of their own regardless of everything else. Children aren’t toys to be played with; they’re human beings with very real needs. Those needs are best met by two parents, so at the outset, the decision to create and bear a child without a partner is presumptively the wrong one for the child and the mother.
Second, there are well over seven billion people on this earth. Planetary resources are already strained and adding to the population, just because a woman wants her own child, shows little responsibility to existing species and just as little compassion. There are tens of millions of children all over the world who, for one reason or another, don’t have parents. Those children need to be adopted. Failure to do so condemns those kids to lives in which they may never learn to form healthy relationships with others and whose psyches may be permanently scarred. To all the adults out there: if you simply can’t live without a child, consider adoption. Consider it seriously. There are children right now who need you.
Finally, the article fails to notice that essentially all the scenarios it lays out are ones in which women exercise considerable control over men. In every situation except that of the anonymous sperm donor, the law will locate a man and call him father of the woman’s child, regardless of his desires or her promises. The mere fact of fathering a child either in the biological sense or in the psychological one will obligate a man to at least 18 years of support for that child.
I heard on NPR today a commentator say that no one should be forced against his wishes to be a parent. Just so, but we do it every day, many times a day in every conceivable way. The family law system cannot pretend to be fair or gender-neutral until it gives men rights that they and they alone can exercise.
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