Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, April 26, 2011

Margalit: "Redefining Parenthood - From Genetic Essentialism to Intentional Parenthood"

Yehezkel Margalit (Bar Ilan Univ.) has posted "Redefining Parenthood - From Genetic Essentialism to Intentional Parenthood" on SSRN.  Here is the abstract:

The last few decades have seen dramatic changes affecting the institutions of family and parenthood. Today, the bionormative marriage has lost much of its strength with greater emphasis being placed on the individual’s autonomy and wishes that separate marital relations from sexuality and fertility. In this article I examine how the emerging fertility treatments biotechnologies elicit the ethical question of how we should define parenthood in the modern era. I suggest abandoning the sacred genetic foundation as the sole factor in establishing legal parentage. Instead of sticking to genetic essentialism we should redefine legal parenthood. I suggest establishing it by mutual agreement while we have to assimilate that in the modern era the legal parentage should be reconceptualizated as intentional one.

I try to implement my general theme in one test case - disputes over frozen embryos. The article tries to present for reassessment the legal dispute as dichotomy and binary as if we have to choose between two options, either full legal parentage or no legal parentage. It offers reconceptualization of parenthood and claims that the establishment of legal parentage is primarily by agreement due to the intention, wish and agreement which led to the birth of a child. The findings of the article provide tools for a better solution to the bitter quarrels in offering an additional legal option which may be a possible compromise in the case of the frozen embryos - granting non-parenthood status to the spouse who objects to the continued fertility treatments and to becoming a parent against his will.


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