Wednesday, February 11, 2009

Marriage Beats DNA

The Kentucky legislature is considering a bill that would give adulterous fathers paternal rights over the children of their adultery, even if the mother is married. The law, by contrast, assumes that all children born to a married woman are children of the marriage. In the past it might be difficult to prove paternity; now, DNA tests can tell us with assurance who the biological father is.

Nonetheless, I think the law is still right. If a married couple want to raise her child as theirs, they should. Marriage is a social institution of the highest value, especially for raising children. In all generations children who are cuckoos in the nest have nonetheless been raised successfully by parents who knew the score. If a man wants to have paternal rights, he should marry the mother of his child. If she is already married, society has already settled the question of who should have first claim on raising the child.


Michael Kruse said...

It'll never work. You're being entirely to practical. :-)

Mac said...

In the situation which you posited, I agree. The problem arises more often when the cuckolded husband divorces his wife but the courts insist on applying the old common law presumption, forcing the "marital father" to support the child of the biological father.

The common law made sense until 20 or so years ago. But with the advances in DNA testing, the common law presumption can give really unfair results.

Perhaps the law ought establish a "first dibs" principle. If the marital partners desire to raise the child as a product of the marriage, and both make an affirmative declaration to that effect, they get first dibs.

Once the marital father makes that declaration, he is bound, even if the marriage later fails.

If, however, the husband divorces the wife (as even Jesus allowed), then the child ought to be the responsibility of the biological father.

Gruntled said...

In the case the law was addressed to, the married couple reconciled. In a follow-up, the legislative hearing, the proponents were reported to have been left without an answer when asked whether this law would give paternal rights to rapists.

Marty said...

Just goes to show, women get "reproductive rights" while men only get "reproductive responsibility". And whether or not either man is held responsible (regardless of whether or not he is the father) is entirely up to the mother.

I think the law of 'presumed paternity' is basically correct: not only was DNA testing impossible a few short years ago, adultery was also illegal.

To put parental responsibility on the interloping father is pretty much to assume/provoke a divorce -- as if two wrongs (adultery then divorce) make it right?

Interesting questions for interesting times. The question of rape takes us full circle: perhaps the man held responsible for paternity in EVERY case should be entirely the "choice" of the mother.

Gender equality is a myth.