ARE fathering and paternity one and the same? Most legal definitions would lead us to believe they are. Social mores and common sense, however, indicate that fathering is more than paternity.
How many hundreds of thousands of adopted children have no biological link to the families they reside with? Who is the real human mother and the real human father? The ones who provide love and care.
This is not to denigrate genetic connection. It is to suggest that genes are not enough to cement a wholesome, productive family relationship.
Parenthood is an ever-expanding concept. It takes nurturing, protecting, cultivating, stewarding. The guarantee of ``good'' parents is not ordained at birth. Would that it were!
The assumption, however, that adults other than biological parents or ``the state'' acting in loco parentis are better qualified to raise and nurture a child than a birth mother and father is not valid.
Historically, society - and the courts - have favored the maternal link in child-placement matters. Until recent years, a mother had a clear advantage in custody cases. Now judges are putting considerable weight on what is ``in the best interest of the child.'' In adoption proceedings, a biological mother had almost sole jurisdiction. A series of court cases, most notably Stanley v. Illinois (1972), began to change this. Here, it was established that an unmarried biological father had due-process rights. Other rulings, however, have since set limits on a biological father's legal standing.
Recent controversies over custody of children born of surrogacy arrangements have raised the issue of paternity rights. Some groups - advocating that a birth mother should have the right to renege on an agreement to give up her child - stress that a woman who carries a child must be given preference over the ``sperm donor.'' Doubtless we will hear more on this issue.
A new dispute centers on the legal right of a husband to block his wife from having an abortion. So far, the courts have been divided on this issue. And the Supreme Court, without comment, this week let stand an Indiana ruling that a woman has a constitutional right to end her pregnancy despite her husband's objections.
The Supreme Court, however, is now delving into another aspect of paternity - the presumption that the husband is the father of his wife's child.
Victoria D. and Michael H. - a married woman and her sometime live-in boyfriend - are challenging a section of the California Evidence Code, which sets up an ``irrebuttable presumption'' that the mother's husband is the biological father of any child she may have. The plaintiffs claim that this law violates the parental rights of a man who is actually the biological father, under the due-process and equal-protection clauses of the Constitution's 14th Amendment.
A trial court, ruling in favor of Victoria D.'s husband at the time of conception, issued a summary judgment, stating there was no factual dispute to resolve, since the California code contained a conclusive presumption of paternity. An appellate tribunal upheld this finding and the state Supreme Court refused to review the case.
The Supreme Court will determine the questions of parental standing and visitation rights. Also to be addressed by the justices are such moral issues as whether the statute protects, or should protect, the state's interest in promoting marriage, the integrity and privacy of the matrimonial family; and the relationship developed between the child and the presumed father.
However this case is adjudicated, the underlying question of fathering won't be resolved. This concept is beyond the scope of the courts. Yet where there is a deeper understanding of mothering and fathering, genetic links or biological ties may take on less importance.
It is mutual understanding, the desire to bless, and an expansive love that ultimately bind parent and child. No amount of litigation can cement this or tear it asunder.
A Thursday column