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Technology, parentage … and family

Mother-Other???

Though some sources give the phrase a somewhat different origin,1 to me it’s a sure bet that it was a genealogist who first asked the question: “Who’s your Daddy?”

The so-called NPE (non-parental event, which can be anything from somebody foolin’ around to an unrecorded informal adoption to a stepson’s choice to use his stepfather’s surname) is an all-too-common phenomenon for any family researcher.

Now, however, we have a new question to ask: “Who’s your Mommy?”

Try plugging these facts into your genealogy software:

Husband and Wife can’t have a child naturally because Wife can’t carry a child to term. Husband and Wife secure an ovum from Donor, who is anonymous, and the ovum is fertilized by way of in vitro fertilization using Husband’s sperm. Husband and Wife contract with Gestational Carrier, who agrees to have the ovum implanted, carry the ovum to term and give birth, and to give up all rights to the child. Child is born, Gestational Carrier signs the required court papers relinquishing any parental rights she may have, and Child goes home with Husband and Wife, with a birth certificate reflecting Husband as father and Wife as mother.

Too far-fetched for you? Think it can’t happen? Those were exactly the facts of a case argued yesterday afternoon before the New Jersey Supreme Court.2 The case, In re T.J.S.,3 doesn’t pit Husband and Wife against Gestational Carrier. And it doesn’t pit Husband and Wife against Donor either.

No, the adversary who faced off against Husband and Wife was the New Jersey State Registrar of Vital Statistics — and the State’s argument was that Wife shouldn’t be listed as the mother of Child on Child’s birth certificate without going through the formality of an adoption. Never mind that an infertile man can be listed as the father on a birth certificate merely by consenting in advance to the fertilization of his wife’s egg with the sperm of an anonymous donor; the infertile woman who consents to the use of her husband’s sperm to fertilize the egg of an anonymous donor has to go through a full formal adoption.

The question the Court has to answer in T.J.S. — who’s the legal mother in cases of assisted reproduction — is a hot topic in the law, and has been for some time. A full 10 years ago, the New Jersey Supreme Court noted that “advances in medical technology have far outstripped the development of legal principles to resolve the inevitable disputes arising out of the new reproductive opportunities now available.”4 Some states have concluded that “she who intended to bring about the birth of a child that she intended to raise as her own–is the natural mother.”5 Other states have dealt with the issue by statute — some allowing gestational carrier contracts6 and some prohibiting them.7

Set aside the legal arguments for a moment — since surely we’re not in a position to resolve them. Let’s look just at the genealogical issues here. How technology is wreaking havoc on the relational databases we use to record our families… and how we as genealogists define what is — and what isn’t — a family.

Let’s deal with the easier of these issues first. I use The Master Genealogist as my primary genealogy program. In that program, it’s easy to enter Child with Child’s birthdate and birthplace and Husband as father. It’s just as easy to enter each of the three women into the database and assign different roles to each one to precisely define the nature of her relationship to Child. Donor can be Mother-Biological. Gestation Carrier can be Mother-Birth. Wife can be Mother-Other.

And that’s where my brain explodes. Mother-Other? The only woman who has cared for that child since the day he was born in the summer of 2009, who changed his diapers, wiped his tears, fed him when hungry, nursed him when sick, cuddled him, watched his first steps, heard his first words, rocked him to sleep? The only woman he has ever called mother? Mother-Other?

I understand the fascination we all have with our ancestors — those from whom we descend. I wouldn’t be a genealogist if I didn’t share it. We want to know who we are, where we come from. Sure our bloodlines are important to us. I wouldn’t be as tall as I am without my mother’s height genes. Half of my siblings wouldn’t be blond with blue eyes if my father hadn’t brought those into the mix from his German parents.

But my family history doesn’t depend on bloodlines. My family history was written, instead, by people. People who raised me, or raised my parents, or their parents, or their parents, back as far as there have been people raising other people. I would still love the smell of a summer garden and have that smell instantly transport me back to a magical time in my life even if the woman who took me by the hand and walked me down to her garden with saltshaker in hand when the first tomatoes of the season were ripening on the vine hadn’t been my blood grandmother at all. And I would love and miss her just the same.8

Do you remember the Baby M case9 that was all over the news in the late 1980s? A New Jersey father whose wife couldn’t have kids contracted with a surrogate mother to bear a child for him and his wife to raise. His sperm was used to impregnate the surrogate, so the baby was her child as well. She changed her mind when the baby was born and a legal battle raged for years. The biological mother won the battle — her parental rights weren’t terminated and she was allowed visitation — but she certainly lost the war. Because when that little girl grew up and turned 18, she went to court and asked that her biological mother’s rights be terminated and that her father’s wife — the woman who she thought of as Mom — be allowed to legally adopt her.10

Blood may make a lineage. But it’s not what makes a family. And it’s family that makes me a genealogist.


SOURCES

  1. See Paul Farhi, “Conception of a Question : Who’s Your Daddy?,” Washington Post online edition, 4 Jan 2005 (http://www.washingtonpost.com/wp-dyn/articles/A46032-2005Jan3.html : accessed 1 Mar 2012).
  2. A videorecording of the argument will be available in 30 days at the Supreme Court of New Jersey Oral Argument Archives, part of the New Jersey Digital Legal Library, hosted by the Rutgers Law Library.
  3. In re T.J.S., 419 N.J. Super. 46 (App. Div.), certif. granted 207 N.J. 228 (2011). The Appellate Division opinion can be read online for free here.
  4. J.B. v. M.B., 170 N.J. 9, 22-23 (2001).
  5. Johnson v. Calvert, 5 Cal.4th 84, 93, cert. denied, 510 U.S. 874 (1993). See also Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285 (Mass. 2001).
  6. See e.g. 750 Ill. Comp. Stat. Ann. 47/1 et seq..
  7. See e.g. Ind. Code Ann. § 31-20-1-1.
  8. Opal Robertson Cottrell — called Mama Clay by one and all — died 17 years ago this month. Virginia Department of Health, Certificate of Death, state file no. 95-011808, Opal Robertson Cottrell (1995); Division of Vital Records, Richmond.
  9. In re Baby M., 109 N.J. 396 (1988).
  10. Whatever happened to Baby M?,” The Bergen (N.J.) Record, online, 4 Jan 2010 (http://www.northjersey.com/news/Whatever_happened_to_Baby_M.html : accessed 1 Mar 2012).
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