Is genetics-above-all the best guideline for answering the question ‘Who is the parent?’
In a 2021 speech, Vice Presidential candidate J. D. Vance proposed that parents receive additional voting rights and tax breaks because they have a stake in the future of the United States that non-parents do not. These comments are in line with Vance’s many earlier statements.
Vance has previously noted that the country’s declining birth rate is a “catastrophic” problem, and neither stepparents nor adoptive parents qualify as parents. In his widely circulated 2021 tirade about “childless cat ladies,” Vance said, “How does it make any sense that we’ve turned our country over to people who don’t really have a direct stake in it?” He elaborated: “. . . it’s just a basic fact. You look at Kamala Harris, Pete Buttigieg, AOC—the entire future of the Democrats is controlled by people without children.” (Kamala Harris is a stepmother and Pete Buttigieg is an adoptive parent.) Also in 2021, Vance expressed his discomfort with Randi Weingarten, the head of the American Federation of Teachers. Vance argued, “If she wants to brainwash and destroy the minds of children, she should have some of her own and leave ours the hell alone.” (Weingarten is also a stepparent.)
More recently, Vance has not directly repudiated his earlier insinuations that stepparents or adoptive parents are not the type of parents that would have a direct stake in the country—even after considerable backlash. The most sympathetic response he has given on the issue is to note that his 2021 comment was not a policy proposal but a “thought experiment.”
While both existing law and Vance’s proposals purport to be pro-family, these “thought experiments” point to vastly different outcomes. In fact, Vance’s proposals conflict with long-established laws designed to answer the question “Who is a parent?” In contrast to existing law, Vance’s proposals suggest that a rapist, a one-night stand, and a father whose rights have been terminated because he murdered the mother while she held their baby in her arms, all have more stake in the future of the country than a legal father who is not only actively raising the child but is obligated to support her until adulthood.
In most areas of law involving children, the best interests of the child form the guiding principle. Vance’s proposal may change this long-established lodestar to something else—such as the best interests of biological parents, or even the country. Challenges to current law would also require invasive and expensive genetic testing procedures, which could result in the unprecedented division of parental rights between legal and genetic parents.
It is worth noting that most existing law does not prioritize genetics in the way Vance does. The Uniform Parentage Act (UPA) has been adopted in some form in all fifty states and is the primary vehicle for establishing legal parentage. The UPA relies on legal presumptions in forming policies on family and the best interests of the child. The strongest presumption is that a child born to a cohabiting married couple is a child of that marriage. This presumption may be challenged by genetic testing only in narrow circumstances. A genetic father who has not established a relationship with the child may not file such a challenge unless his efforts to form that relationship have been thwarted. The conclusive presumption is designed to support the sanctity of the marital relationship, promote family stability, and address the best interests of the child.
In most cases in which the mother is unmarried, lesser presumptions apply. These rebuttable presumptions favor a certain type of father—most commonly, one who has taken the child into his home and treated him as his own. This presumed father may or may not be genetically related to the child. In such cases, the father with the least claim to rights is the one who only possesses a genetic bond. These distinctions are rooted in policy to preserve an ongoing parent and child relationship. Such policies support the integrity of the family and the welfare of the child.
The UPA prohibits a man from being a presumed father if the child was the product of rape. It also precludes a sperm donor from being considered a father in most circumstances.
Outside the UPA, courts may terminate the parental rights of a person who has acted in ways wholly incompatible with parenting. Examples include situations where child protective services have intervened and the state prosecutes the case, or in private actions. Parental rights may be terminated in private actions for such reasons as abandonment or a felony conviction, if the felony in question proves the unfitness of the parent. The private action serves the best interest of a child in such cases by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life. A father whose parental rights are terminated is no longer a father for any purpose, including payment of child support.
J. D. Vance’s proposals would turn all this established law on its head by favoring genetics above all. The lure of additional voting rights and tax breaks could encourage genetic parents to challenge legal parents in instances in which they presently cannot. In the process, such litigation could disrupt established marriages and families, since Vance’s proposals could expose marriages or established parent-child relationships to lawsuits by genetic fathers seeking voting or tax benefits.
The proposals could also support a rapist who sues the mother to prove the child is his. Although the rapist could not establish legal fatherhood or be held liable for child support, he could qualify for Vance’s proposed benefits because of his genetic connection. The proposals could also allow a sperm donor—even an anonymous one—to sue the sperm bank to prove his donations resulted in children, causing considerable chaos. Finally, the genetic father whose parental rights have been terminated could sue the adoptive father or parents to obtain benefits he would like without being saddled with the obligations that currently go hand-in-hand with parental rights.
One last thought: What if a child dies? Do her parents retain their benefits, or have they lost their stake in America’s future? What if that child loses his life while protecting our country? It is unclear how these questions will be answered if Vance’s proposals are adopted. One thing is clear: Chaos and disruptions for many families will be guaranteed.
Miles Whitney is an attorney living in Sacramento, California. Miles began writing creatively after the unexpected death of his daughter Isabel in 2022.