Presented by Susan F. Paikin
During the past 30 years, paternity establishment proceedings evolved from criminal to pure civil actions to user-friendly acknowledgements totally outside the judicial system. The national child support enforcement program created by Congress under Title IV-D of the Social Security Act has been the primary mechanism driving this change. On a parallel though interrelated track during these same decades, illegitimate children gained greater rights, and the role of nonmarital fathers matured in law, policy, and public discourse.
Paikin discussed the laws, policies and procedures for establishing paternity through voluntary paternity acknowledgments, by default orders, and after genetic testing. The first two methods allow for legal parentage to be established for a man who is not the child's biological parent (although this is not the intent of the policies), while inexpensive and widely available testing offers scientific certainty as to whether a man is or is not a child's genetic parent. Fanned by advocates and media coverage, a growing political, legal and societal discussion topic is how to respond to and balance the increased risk that paternity established by acknowledgment or default may be disestablished at a later time because the legally determined father is not the child's biological parent.
Changes in paternity establishment policy have overwhelmingly benefited children born outside of marriage. The federal requirements and financial support provided under the national child support enforcement program offers inexpensive, streamlined procedures by which legal fatherhood may be established — both voluntarily and in contested cases. In FY 2004 alone, 1.6 million children had paternity either established or acknowledged. What is unknown is the level of parental discrepancies (i.e. a difference between who is the child's legal father and who is the child's biological father) created by these policies. The discussion explored whether the potential for a discrepancy between legal and biological parentage requires or recommends changing the voluntary paternity acknowledgement and default order laws and procedures (e.g. encouraging or mandating genetic testing before legal parentage may be established). The interests of children, legal and biological parents, the IV-D program and society were considered.
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Garrison posits that throughout history and family law, it is the preference for children's interests which leads to the identification of two legal parents from whom children may enjoy care and support. Two parents offer greater insurance to the child for economic support as well as physical and emotional caretaking. Family law uses a variety of tools to achieve these results, including procedural presumptions, evidentiary rules, equitable principles, and substantive law.
Specific doctrines tend to reflect the social and economic conditions that lead to stresses in family life. At one time, common-law courts relied on the marital presumption of legitimacy and a ban on parentage establishment by illegitimate children to accomplish this aim. Today, courts turn to a variety of sources — marital status, contract, evidentiary presumptions, equitable doctrines such as estoppel and laches, procedural principles such as res judicata and collateral estoppel — to meet the same goal. Legislatures, citing children's interests, have adopted statutory standards governing child custody, support, visitation, adoption, child protection, paternity establishment and disestablishment that also aim at ensuring two-parent care where possible and preserving the child's existing parental bonds.
New paternity disestablishment statutes that permit disestablishment based on biological evidence and without consideration of the child's interests conflict with these long-standing policy goals, but procedural safeguards against erroneous parentage determinations — enhanced notice requirements, counseling, mandated or suggested genetic testing — do not. A key goal that needs to be accounted for is to provide two-parent care where possible and preserve established relationships where relied on by the child. However, when paternity is misattributed, the parent — child relationship is more fragile. Shock, anger, and rejection are clearly not in a child's best interest. Because safeguards against erroneous paternity establishment do not conflict with family law's long-standing commitment to children's interests, such safeguards should be preferred to liberal disestablishment procedures, which may conflict with children's interests.
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Elrod argues that genetic parentage is being given disproportionate weight today. Perhaps because it can be known, arguments favoring a strict "sperm for liability" agenda unduly discount legal and social parenting, she suggests. It is important to ensure a man who impregnates a woman takes responsibility for any resulting child. Child support matters. Emotional support matters. However, legal relationships between parents and children are formed through marriage, adoption, acknowledgement, consent to artificial insemination of a spouse, and judicial decree. Elrod disagreed that the law always protects children. Rather, it is the interest of parents that are favored.
Elrod pointed out the limitations of the analogy to adoption. In adoption, the lack of biological relationship is a known from the beginning; therefore dissolving the parent-child relationship is allowed in only the rarest of circumstances — akin to a termination of parental rights, not paternity disestablishment. Despite all the above, the underpinning of voluntary paternity acknowledgement laws is that the man signing the acknowledgment is the child's biological parent. Although used that way, the statute is not intended to be an expedited "step-parent" adoption process. Accordingly, the discussant proffered that the child and putative father should be genetically tested at the hospital at the child's birth. The decision to acknowledge would be made without false pretense — whether it is an acknowledgment to assume parental rights or to sign them away so the child may be adopted by another. Universal genetic testing at birth would ensure that the social bond later formed between child and father could not be broken through a disestablishment claim. Using this simple, low-cost testing would also protect low-income men from an improper financial burden.
Despite support for universal genetic testing at the outset, Elrod asserted that social relationships with children who are not genetically related are undervalued. Policies should be examined to strengthen, for example, responsibilities to step-children. Limiting the scope of future inquiries to legal and biological parents, may miss and inadvertently or purposefully undermine the critical role of established social relationships.
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The "best interest of the child" doctrine, as understood in child welfare practice and family law, is helpful in understanding the disruption of the father-child legal and social relationships, whether at the request of the father or over his objections. However, the term is used broadly. It is constructed and understood differently depending on the context. At this moment the term does not afford common denominators that stand in for child-well being across the legal spectrum.
The best interest of the child doctrine was initially articulated in the context of child abuse and neglect cases as an administrative tool for determining whether children should remain in parental care. Child welfare has viewed paternity establishment as a means of identifying fathers for the purpose of legally disconnecting them from the child to move toward adoption or other permanency plans. In the child welfare literature, the term has emerged from a deficit perspective.
Increasingly, the "best interest of the child" also is invoked in a variety of other situations, including child support, visitation agreements, custody determinations, adoption, and paternity actions. In particular, child support has been in the forefront, establishing fatherhood in many cases for the purpose of collecting financial support. Examining the "best interest of the child" doctrine from the child welfare perspective suggests it is an important yet incomplete framework for decision making regarding the preservation or termination of the father-child relationship. In contrast, from the perspective of family case law, the meaning of the "best interest of the child" in regard to the father-child relationship appears to be determined on a case by case basis without specific reference to its core concepts of safety, permanency and child well-being. Variation in state statutes and policies regarding paternal rights and responsibilities further contribute to the lack of a common understanding of how to apply the principal of the best interest of the child with regard to fathers. Reliance on biology alone raises concerns. A more apt consideration is best characterized as "biology plus" — biology plus time, effort, support, emotional engagement with the child and socialization. The law and practice around paternity disestablishment should focus on these critical factors when ascertaining whether the best interest of the child are served in maintaining or terminating a non-biological parent's rights.
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For the bioethics community, novel reproductive technologies challenge traditional understandings of parenthood. Traditionally, society and the law have taken the view that paternal responsibilities arise from biology. Hence, until recently, biological paternity was a necessary uncertainty. Accordingly, this view was translated into a presumptive social model under which a husband was deemed the legal father of any child born within his marriage to the child's mother. In addition to settling the issue of paternity under the law, this model operated to protect children from the economic disadvantages and social stigma of illegitimacy. Today, however, non-traditional family structures such as co-habitation, adoption, single parent households, and same-sex partnership, as well as novel assisted reproductive technologies such as surrogate parenthood, gamete harvesting, and reproductive organ transplants are calling into question the assumptions grounding this view of paternity. Surrogate motherhood, ovarian transplants, post-mortem sperm donation all lead to the same initial questions: What is a mother? What is a father? How do these parental rights and responsibilities arise?
The presenters considered these basic questions, and further, how should society and the law respond when, for want of genetic ties, the father of a child seeks to relinquish his parental rights and responsibilities? How should policy makers, legislators and judges negotiate and reconcile the conflicting values and stakeholder interests which lie at the heart of such disputes? There is surprisingly little consistency in the law. Past cases reveal a confusing series of legislative and judicial choices which, when deployed, do not always yield ethically acceptable outcomes. Existing models by which society and the law recognize paternity in order to identify the chief social, familial and individual values grounding paternity's establishment include marriage or presuming, intent-based, and genetic. Each model offers key values which may be promoted or are at stake in paternity's disestablishment. Those values include but are not limited to: medical, social and legal interests of the child, legal and biological parents; administrative efficiency; preserving and promoting certain views of the family; discouraging premarital sex; and reproductive responsibility.
Two criticisms that have been leveled against existing paternity disestablishment laws are: they are parent- or father-centered as opposed to child-centered; and they unjustifiably elevate genetic ties and, hence, genetic paternity, over and above other forms of and values attaching to paternity. Paternity disestablishment should reflect values that are not at odds with those in place in paternity establishment. While it is hard to make overarching statements without specific cases, it is appropriate to explore the issue from a utilitarian viewpoint — how can we make as many people as happy as possible or how can we ensure that the fewest people are harmed.
Bergmann and her colleagues proposed three value-based models as potential frameworks for the analysis and resolution of paternity disestablishment contests. These principles could be applied to weigh the disparate interests to influence policy. Beneficence or nonmaleficence considers what policy can bring the most benefit to most people. Justice as fairness considers both substantive and procedural fairness. People similarly situated should be treated similarly. If paternity establishment is based on genetic identity, disestablishment policy should do the same. Are decisions about whether or not to disestablish substantively fair, particularly for the child? Autonomy and privacy is the final pair of critical values. Parents are autonomous beings but disestablishment arises because parents are not always exercising their autonomy and responsibility in a logical fashion. An option is to require genetic testing at birth so parents have baseline information from which to make decisions. However, familial privacy is an equally critical value in society. Mandatory genetic testing may not serve the societal interest of limiting government intervention to that necessary. Policy that incorporates a values-driven model of paternity disestablishment is comprehensive in scope and ethical in process and product.
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Wattenberg suggested that Paul Melli from the University of Wisconsin "cracked the code" on what it is that provides resiliency for children in adverse circumstances — a sunny temperament, combined with a decent IQ, and someone who cared about them. This intuitive common sense should be kept in mind when thinking about paternity disestablishment. One missing piece of the discussion is: what is the origin of paternity disestablishment? Does it come from an American belief that if we are not happy we should do something about it? Or from a propensity to abandon lifelong obligations that prove difficult, such as caring for a disabled child? Or the belief that we can help social policy by finding out who can and cannot pay child support?
Wattenberg noted that although long-standing research supports the notion of an in-hospital paternity acknowledgment program, genetic parenting does matter. It matters when children are young, when they are adults, and particularly on health issues. There are thus three themes from child welfare that might be helpful in structuring paternity disestablishment policy. First, emphasize stability. Expect initial decisions to remain constant but build in a thorough court review for the exceptional cases. Second, do a better job of getting it right at the front end. Third, consider using family-group decision making and expanded family resources to provide a sense of child well-being beyond the nuclear family.
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