Okay, I can’t believe I’m actually blogging about the Anna Nicole Smith case, but I do want to make one point.
There seems to be a universal presumption that whichever guy turns out to be the biological father of her baby (FWIW, the DNA experts now say it’s Larry Birkhead) is rightfully entitled to custody.
Why? Inasmuch as the child comes into existence inside the mother, sole custody must initially belong to the mother. She can decide to share custody once the child is born, but – assuming the inalienability of self-ownership – she can’t surrender any part of her custody prior to the child’s birth, for the same reason that you can’t sell your blood while it’s still in your veins: so long as control over X is inextricably associated with control over Y, one can’t give up the former if the latter is inalienable. The biological father thus has no enforceable rights beyond what the mother chooses to grant him. (He may have various moral claims, depending on circumstances, but that’s another matter.) He surrendered all claim to his sperm and its issue when he deposited it in someone else’s body. (What about implicit contracts? I don’t rule those out – but such contracts can only involve the transfer of alienable rights. So at most an implicit contract could require the mother to compensate the father financially if she denies him shared custody. Or so it seems to me.)
Thus the medical determination of the child’s paternity is not the decisive issue. What would be much more relevant would be to know which man Smith would have preferred to receive custody. Now I gather that there’s some controversy about the answer to that question too; still, that seems to me the more important question to ask.