Ruth Institute Blog

We here at the Ruth Institute have been saying for quite some time that Artificial Insemination technology can and will be used to push men out of families, and in so doing increase fatherlessness.

It almost boggles the mind that there is any dispute about this proposition.  Witness the strange and unexpected changes in the law that Kay Hymowitz documents in this article:

Unfortunately, in the absence of any other authority, answering these questions has fallen to family court judges, who are—and I mean no disrespect—not always the sort you’d expect to be on the short list for the Louis Brandeis Award for Cautious Jurisprudence. True, these are hardly people who dream of redefining the family when they promise to uphold the Constitution; probably the last label that they imagine applying to themselves is “activist judge.” But when they try to figure out whether a woman has the right to visit the child she diapered, fed, and read to for four years before she and her partner split up, they have only a small number of blunt instruments in their legal toolbox: case law on custody and visitation, the best-interests-of-the-child doctrine, contract law, and so forth. They aren’t thinking that their decisions could be enshrining in law a profound cultural transformation that few Americans have had a chance to register, much less opine on. In fact, many legal theorists argue that in making such decisions, the courts are simply “catching up with reality.”

But it turns out to be more like reality on Mars. In unwitting alliance with a fertility industry fiercely protective of anonymous gamete donation, the courts have given their imprimatur to two nonsensical biological conditions: children who have no fathers and fathers who have no children. The old Uniform Parentage Act had it that a donor had no paternal standing, because at the time the law needed to resolve the potential problem of two fathers: the donor and the mother’s husband. It should be obvious that in the case of a single or lesbian mother, the problem is quite different: there is no “other father.”

But it hasn’t proved obvious to most legal experts, who continue to revert to the Uniform Parentage Act formula: as long as a doctor performs the insemination or a sperm bank sells the sperm, the donor is not a father. This doesn’t simply mean that the child is fatherless in the way that, say, an orphan is fatherless. Rather, the child is born into an entirely new human circumstance. For, according to the law, he never had a father at all. The man who fathered him is not in fact his father; instead, he’s the originating site of organic material that is for sale, like a sulfur mine or a fish farm. Witness the title of a 1994 Dickinson Law Review article: “The Potential for Products Liability Actions When Artificial Insemination by an Anonymous Donor Produces Children with Genetic Defects.”

To justify this new “reality,” many legal scholars argue that we should reject biology as the basis of parentage in favor of the principle of “intentionality.” It’s the person—or persons—who planned the child who have parental rights. A donor doesn’t intend to become a parent to his offspring—he is an intentional unparent, if you will—while the woman who uses his sperm does, and therefore is. “State interest is best served by honoring the preconception intent of each adult who took part in conception, regardless of his/her biological role,” Justyn Lezin argues in The Hastings Women’s Law Journal in language typical of this line of thinking.

You shouldn’t have to be Brandeis to see the land mines that line the road of intentionality. For one thing, intentionality is wildly inconsistent with the law’s traditional presumption of paternal responsibility. Say a man has a drunken one-night stand with a woman he meets in a bar. If she gets pregnant, the law sees him as a father, and he must pay child support for the next 18 years. But if a college student visits the local sperm bank twice a week for a year, produces a dozen children, and pockets thousands of dollars, he can whistle his way back to econ class, no cares, no worries. Intentionality can’t explain that disconnect.

And that’s just for starters. A woman participating in an online discussion group at the Donor Sibling Registry, a database for AI parents and children, describes how she and her lesbian partner decided to have a child together. After she became pregnant through a donor, the couple purchased a house and settled in to wait for the blessed event. But several months later, the partner lost interest and moved out, announcing that she no longer intended to become a parent. If it were the child’s father who pulled that stunt, no rational person would disagree: your baby, your responsibility, Bub. But in what sense is the partner a parent to a child she’s never seen, much less nurtured, and to whom she is biologically unrelated? Simply because for a few months she thought that she wanted to be a parent? And why should her intent prevail over other goods—in this case, the biological mother’s need to create a loving environment for the child, or—now here’s a radical idea!—the child’s interest in knowing her father?

As intentionality has come to supplant biology, the law, by pretending nature doesn’t exist, has not caught up with reality; it has pole-vaulted over it. A family court in Burlington County, New Jersey, recently put two women on a state birth certificate. Last year, Virginia issued a birth certificate for a gay couple that read “Parent A” and “Parent B.” Massachusetts officials proposed crossing out “Father” on the state’s birth certificate and replacing it with “Second Parent” (until then-governor Mitt Romney nixed the plan). Many legal scholars are now proposing that courts move beyond the “heterosexist model” entirely. Why not put three parents—or four, for that matter—on the birth certificate? This past January, an Ontario court did just that. Intentionality, it seems, can accomplish almost anything.

And don’t think that family law radicals are not eagerly rubbing their hands together as they contemplate the possibilities of pushing fathers out of families.

AI’s potential for deconstructing the family has not been lost on radical feminists. In Baby Steps: How Lesbian Alternative Insemination Is Changing the World, Amy Agigian, a sociology professor at Suffolk University in Boston, observes: “Lesbian appropriation of medical technology (AI) that was intended to shore up nuclear families” has “radically challenge[d] the power structure, assumptions, and presumed ‘naturalness’ of major social institutions.” AI promotes a “postmodern family form that emphasizes affinity over biology and (patri)lineage.” For thinkers like Agigian, one of AI’s greatest benefits is that it dethrones what Canadian feminist Kathryn Pauly Morgan calls PIVMO (penis in vagina with male orgasm). Postmodern anthropologists studying reproduction technology—and there are enough of them to be producing a steady stream of volumes with titles like Conceiving the New World Order—have joined in, arguing that the whole idea of kinship based on sexual procreation is a Western construct, happily on its way out.

Highly credentialed mainstream experts are also taking a take-’em-or-leave-’em approach to dads. There was Louise Silverstein and Carl Auerbach’s infamous “Deconstructing the Essential Father,” a 1999 American Psychologist article arguing that “neoconservative social scientists” who cautioned against the fatherless family simply wanted to uphold “male power and privilege.” More recently, Peggy Drexler, an assistant professor at Weill Medical College of Cornell University and a board member of New York University’s Child Study Center, has made a similar case in Raising Boys Without Men: How Maverick Moms Are Creating the Next Generation of Exceptional Men. Drexler announces that she herself is raising two children with her husband of 30-plus years, but one has to wonder whether her book isn’t a silent cry for help. Her index under “fathers” includes: “absent, after divorce,” “destructive qualities of,” “spending limited time with children.” “In our society, often we idealize and elevate the role of father in a boy’s life without giving credence to the fact that actual fathers can be destructive and a boy may be better off without his father,” she informs us. In Drexler’s view (spoiler alert for Mr. Drexler), dadless boys are actually better, more sensitive and more “exceptional.”

More ordinary “choice mothers,” as many single women using AI now call themselves, are usually not openly hostile to fathers, but they boast a language of female empowerment that implicitly trivializes men’s roles in children’s lives. The term “choice mothers” frames AI as a matter of women’s reproductive rights. Only the woman’s decision making—or intention—carries moral weight. Similarly, advocates often cite the benefits of single motherhood’s freedom from “donor interference.” “Single moms avoid the need to discuss and negotiate around key parenting issues,” one Toronto social worker told iParenting Media. “She can shape a child in her own unique vision.”

And in the same choice-trumps-everything spirit, choice mothers emphasize that they choose their kids. All the planning and deliberation that they’ve got to go through to have children, they suggest, might make them better parents than those who just “breed.” Their kids are “wanted children,” observes sociologist Judith Stacey. The implication that sexual intercourse brings forth hordes of unwanted, unloved children, while AI produces a chosen elite, sometimes hangs in the air. It’s a view that one of the pioneer choice mothers (though through adoption, not AI)—Joan “Mommy Dearest” Crawford—probably would have endorsed.

Remember, it’s not a tinfoil hat conspiracy theory if the conspirators write down their plans, publish those writings and then bend all their efforts to making sure those plans come to fruition.