Thinking in catchphrases is a dangerous trend, particularly in the courts. If this post sounds like a bit of a rant, that’s because, well, it is.
Slogans such as “Every child has a right to know where they come from,” are generally fine, and even positive developments in the worlds of legal and social policy. They are not so great when they conflict with the facts on the ground, common sense and the autonomy of the parent.
They may actually become inconsistent when they conflict with other trends in child-bearing and legislation.
The question at hand is: what happens when a young woman gets pregnant, decides to carry the pregnancy to term, the biological father is not interested in being a father and she, for her part, is not interested in that father being involved in the child’s life?
The simple answer is: as long as there is no agreement between the two that the child is registered under both their names, or alternately, a judicial decision in a paternity suit filed by either of them, the child is registered solely under the mother’s name, and the father’s name appears in no official documents.
It’s a kind of legal no-man’s land, since in theory he has rights and responsibilities, but in reality, without court orders, these are difficult if not impossible to enforce.
What happens, what should happen, when the mother marries someone else, takes on the husband’s name, and wants to change her child’s name as well. Should be a no-brainer, right?
Not so fast.
Israeli law addressed this issue way back in the fifties, or so I thought. Since that time of very practical legislation, we seem to have become addicted to slogans, overly dependent on expert opinions of social workers and psychologists. In an excessive burst of cynicism I would go so far as to say that we are struggling with the rule of bureaucrats rather than the rule of law.
The Law of Names, 5716-1956 addresses the issue, but seems to me that no one wants to read the law.
Article 3 of the law says that a child born to unwedded parents takes the name of the mother, unless she and the father agree that the child take the father’s name. Article 12 of the law states that a parent who changes his or her last name may automatically change the last name of their child, and Article 13 is more general, stating that if parents wish to change a child’s name they may do so with the approval of the court. Now (and here’s the clause no one seems to want to read) Article 21 states that with regard to these statutes, in the case where a child is primarily in the care of one parent, that parent has the right to make these decisions.
So why is it I find myself – more than six months after filing for a name change so that a child born to the mother when she was not married will bear the same name as her mother and stepfather – with no decision? Remember, this child does not and never has borne the same last name as her biological father.
True, the governmental agency which is the respondent in the case took a long time responding. However, when the representative of the Ministry of Welfare asks that a social worker file a report to the court since “the father’s response to the petition was not attached” you have to wonder.
Have we now created a supra-legal category, where the input of the biological, psychologically not present father is so important that we demand it even though the law clearly does not? Are we trying to force the mother to involve the biological father in the child’s life?
The irony here is that although there is much lip-service paid to the notion that a child has a right to know his or her roots, where he comes from (Convention of the Rights of the Child) at the same time, as a society we allow and even encourage forms of propagation in which a child has no idea who his or her biological parent is. I am of course thinking of IVF performed with sperm and/or ovary donations by anonymous donors, surrogate parenthood, and even closed adoption of Israeli children, or adoption of children from another country where the biological parents will rarely be traced.
I don’t yet know what will happen in this case; I await the judge’s decision. I’m still hoping that my appeal to the relevant statutes and to common sense will prevail.
However, there is also an uncomfortable impinging on the autonomy of the mother in this case, an assumption that the parent can’t make the right decision for her child. While the State’s oversight or intervention may be justified in certain cases, I put forth the argument that the circumstances here do not demand this intervention and further, that the legislature has explicitly granted the mother the authority to make this decision. Failure to honor the law for the sake of a higher good as it were is a dangerous trend.
There is also an interesting question here as to what precisely is the status of the biological father. He clearly has obligations whether or not he is formally registered as the child’s father and he should be paying child support. The question is, what responsibilities and rights does he have? When, during the hearing I asked rhetorically whether the mother needs to ask his permission before a medical procedure or making educational decisions as she would from a registered parent, the judge looked at me and said “of course”: I hope that she just pulled that one out of left field, since it absolutely makes no sense.
If the father were not registered, but paying child support and/or involved in the life of the child, then it might possibly make sense.
Parents, whether married or not, have equal status as guardians in Israel, and have for many years, long before this became the trend in many Western countries. Make no mistake; I think that is generally a good thing and something to be proud of. However, when we lose sight of common sense, of the contingencies of life, and when we impose obligations on a mother that may ultimately complicate her life and that of the child, we have been drugged by good intentions and rhetoric and lost our way.
If the legislature wishes to mandate mothers in these circumstances to take all necessary steps to involve the biological father in the child’s life, then legislation should be tabled, debated, and the end product will reflect a new social and political consensus. Until such time, however, let’s leave well enough alone.