Academic journal article The American University Journal of Gender, Social Policy & the Law

Towards Establishing Parenthood by Agreement in Jewish Law *

Academic journal article The American University Journal of Gender, Social Policy & the Law

Towards Establishing Parenthood by Agreement in Jewish Law *

Article excerpt

The notion of establishing a parent-child relationship based upon the intent of the parties who are involved in the production of the child is alien to Jewish thought.1

Introduction

The traditional Jewish family structure, like all other theological family structures, consists of a horizontal relationship between spouses and a vertical relationship between parent and child. Elsewhere,2 I discussed extensively the various dispositive contractual aspects of the spousal relationship. in this article, i will discuss the dispositive elements of the parent-child relationship. it is worth noting at the outset the acute normative gap between these two similar but different relationships; whereas private ordering is feasible in the spousal relationship, in the parent-child relationship it is far more complicated. This is generally the case in all legal systems and particularly in the Jewish (halakhic) legal system.

in a spousal agreement we are dealing with two sovereign adults who have the legal capacity to negotiate their monetary relationship and all other dispositive elements of their status as a married couple. In stark contrast, the parent-child agreement primarily concerns the child, who is obviously the subject of that arrangement. Should the child be bound by that agreement? or is he only a third-party beneficiary to the parental agreement, thus remaining free to claim his rights while totally ignoring his parents' agreement? Furthermore, the child is often a minor who cannot consent to his parents' agreement, as he lacks the legal capacity to do so. In the vast majority of jurisdictions, a parental agreement should be inspected in light of the best interests of the child, ("BIC") which means that any contract that might damage the BIC should be invalid.3 How can we validate these private agreements if we do not ensure that they are not detrimental to the BIC and do not deprive him of any of his rights and interests?

The legality and enforceability of any specific parental contractual stipulation, such as who should supply the child's food and basic needs, who should decide where and what he will learn, which medical treatments he will receive, and so on, is problematic in light of the abovementioned shortcomings of the parent-child agreement. Clearly, any agreement for establishing the legal parenthood of individuals who will be considered a child's legal parents, fulfill his various needs, and receive the various parental rights is much more complicated, since its implications are dramatically far-reaching for the child, his parents, and society as a whole.4 Nonetheless, such parental agreements, which I define as determining legal parenthood by agreement, ("DLPBA") are slowly but surely becoming more prevalent, nuanced, and detailed in modern times due to today's greater social openness and the rapid biomedical developments in the field of reproduction.

As I have elaborated in some of my previous research, the last few decades have witnessed dramatic changes in the institutions of family and parenthood. If, in the past, the family was strongly influenced by the bionormative, "traditional"5 theological family structure, defined as a pair of heterosexual parents living together under one roof along with their children, sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Furthermore, "biomedical procedures, such as artificial insemination, sperm/ova/zygote donation and surrogacy, which have been described by scholars as a "revolution" and as the "Wild West of American medicine," have separated marital relations and fertility."6

Thus, today, the traditional family structure has lost much of its strength, and greater emphasis has been placed on individual autonomy, choice, and the legitimate ability to DLPBA.7 This departure from theological marriage and parenthood coupled with the inability of traditional parentage models to satisfactorily address the realities of modern parenthood requires increased reliance on private ordering to determine legal parenthood. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.