Emerging Issues in Paternity Establishment: Symposium Summary. Biology and Beyond

09/17/2007

Symposium Discussion

During the morning presentation of all four background papers, several interrelated themes emerged and were carried forward to the afternoon's discussion. Symposium members referred to the balancing test between legal, social and biological parenting as "biology plus". It was the group's consensus that key goals of both paternity establishment and disestablishment policy are to provide two-parent care where possible and to preserve established relationships. While bio-identity was recognized by all to be a powerful emotional force and important factor for all involved, there was no corresponding universal support for what a participant identified as a "strict sperm liability" policy  where paternity is fixed irrevocably at conception by the contribution of genetic material.

Participants suggested that it is reasonable to explore whether genetic parentage trumps other interests. However, others suggested that a pure genetics model built on the ascendancy of a biological imperative ignores evidence from adoptive, step- and non-traditional families that children can be successfully nurtured and raised by adults with whom they do not share genes. Other conferees noted that modern reproductive technologies challenge traditional understandings of parenthood. Surrogate motherhood, ovarian transplants, and post-mortem sperm donation all call into question: What is a mother? What is a father?

This discussion encompassed two key disparate concepts. First, under what circumstances and to what extent should those social and emotional "plus" factors  involvement, nurturing, and legal identity as a parent  outweigh bio-identity, if ever? When weighing such factors does it matter who brings the action to disestablish? It is not always the case that paternity disestablishment arises when a legal father seeks to terminate his relationship to the child  or to the mother  and end his financial support. Disestablishment litigation occurs when a mother uses non-biology to oust the child's legal father. A biological father may also seek to establish his legal and emotional relationship with a child with whom he shares a genetic identity. As a participant noted, while they may contain common stories, the human twists are inevitably unique.

The second concept is drawn primarily from the child welfare model  the more adults positively engaged with a child the better. Participants discussed looking at multiple fathers in this context  a legal father, a social father and perhaps a separate biological father. A member suggested such a model would find a parallel in open-adoptions and foster care cases. The viability of such as solution was considered to be dependent on positive relationships among those involved and a reliance on mediation and co-parenting. There was agreement that the failure of cooperation would default to a government decision  and a low probability that legislatures and courts would adopt widely the multiple father models. A participant suggested that while the concept of multiple fathers was appealing, the complication of parceling out both rights and responsibilities was unrealistic. For example, who would pay child support  all, the legal father, or the biological parent? Even the idea of multiple social parents is inevitably complicated by the propensity of American families to move. Despite important laws, such as UIFSA and the UCCJEA, designed to bring more consistency to interstate child support and child custody litigation, conferees highlighted the inevitable complications when litigation and evidence-gathering crosses state borders.

The discussion considered the role of step-parents as a possible model. Several analogies were proffered. A participant suggested that step-parents are evidence that social parents don't see themselves as replacing biological parents. However, neither do step parent families provide the same benefit as intact families. She suggested that if step-parents are obligated to care for stepchildren, it would affect the decision-making on whether or not to get involved. The group discussed the fact that second marriages break up more often than first marriages. However, a participant noted that the way many single mothers get out of poverty is through marriage. She posited that it was counterproductive to penalize step-fathers for supporting their wives' children during marriage by making them financially responsible for the children should the marriage dissolve.

Others observed that the tendency was to equate non-biological legal parents to step-parents. It was suggested that a more apt model on which practice and policy should be weighed is adoption. Such a model promotes the values of stability for the child and permits  in accord with and limited by state law  the child to explore his or her bio-identity as an adult, without disruption of the legal relationship during minority.

Finally, the discussion mirrored some of the concerns identified and discussed earlier. To what extent are voluntary paternity acknowledgement laws used as an inexpensive, self-help adoption? What are the triggers for bringing the disestablishment action, including disability or illness of a child, child support enforcement, or new relationships?

Research Needs

  1. Symposium participants suggested that the following additional research would assist policymakers in evaluating the relative importance of non-biological factors: Explore the impact on children where there are multiple fathers involved, specifically, a legal father, social father, and biological father. The research should focus on lessons from the child welfare system, including step-parents, foster parents, and adoptive parents and the way all these individuals influence a child's life.
  2. What are the parallels between voluntary paternity acknowledgement and adoption? The research on this question should consider the approach incorporated into UPA (2002) and include an analysis parents who acknowledge children with whom they have no genetic connection, but want to form a family.
  3. Analyze legal resources and restrictions on adult child ascertaining and legally establishing biological father post majority.

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