What is Parenthood?
In Gender and Parentage: Family Law's Equality Project in Our Empirical Age, my chapter in the What Is Parenthood? book, I argue for a diversity model of parentage that recognizes an array of family forms beyond the one mother-one father norm. Specifically, I contend that the U.S. Supreme Court's invalidation of family laws resting on gender stereotypes exemplifies a more expansive equality project, which in turn should doom any legal rules of parentage based on such stereotypes. I also posit that the doctrine of gender equality arising from such cases might well offer a stronger basis for a diversity model of parentage than empirical evidence showing generally how children fare well in families with two mothers and two fathers. Among various reasons I cite, I state that individual children should not be subject to a parentage regime based on generalizations, rather than their own particular best interests.
How might the arguments set out in my chapter be implemented? Although legislatures and courts might take several different paths, a case decided by the Kansas Supreme Court in February offers some useful templates. In Frazier v. Goudschall, Nancy Frazier sued after her former partner, Kelly Goudschall, denied her access to the two children whom Goudschall conceived via donor insemination during their relationship and whom the couple had agreed to rear together. Three aspects of the majority's opinion merit attention.
First, this case holds a court has jurisdiction to hear a petition brought by a mother's former same-sex partner, based on a gender-neutral application of the state's paternity statute. Courts in other states have taken a similar approach. For example, before New York statutorily authorized same-sex marriage, its highest court looked to Vermont's civil union statute to employ a gender-neutral version of the traditional presumption of legitimacy, making a mother's civil-union partner the second parent of the mother's child. An appellate court in Oregon extended a statute recognizing the mother's husband as the legal father of a child conceived by donor insemination to include the children of mothers in same-sex relationships, given the inability of such couples to marry (Shineovich v. Kemp, 214 P.3d 29 (Or. Ct. App. 2009). Like the Kansas case, a recent New Mexico case has held that a court has jurisdiction to recognize as a parent a mother's former same-sex partner based on a gender-neutral application of the state's paternity statute.
Despite allowing mothers to take the position traditionally accorded to fathers, the approaches illustrated by these cases are not gender-free. Each uses a gendered starting point, a legal mother-child relationship, and then turns to a gender-neutral reading of existing law to recognize another woman as the children's second parent.
As a result, a second rationale in the Kansas case could be even more far-reaching – and more truly gender-free. The court holds that a legal parent may enter a valid and enforceable agreement with a partner, committing to shared parental rights and responsibilities. Co-parentage by contract opens new possibilities that need not start with a legal mother. In fact, the court's agreement-based reasoning dovetails with recent decisions holding that assisted reproduction arrangements might result in a child with only a legal father and no mother at all or with two fathers and no mother. On the other hand, some courts have explicitly rejected parentage by contract. The Kansas case's reliance on parentage by contract certainly deserves further consideration and analysis, both to elaborate on its promise and to reveal any possible pitfalls.
Third, the Kansas case stands out because of the way it addresses the children's interests. The court deems the children to be third-party beneficiaries of the co-parenting contract, emphasizing the importance of recognizing two parents for them, but remands the case to determine the children's best interests with assistance from an appointed attorney. Generalizations about "dual gender parenting" as the means of ensuring optimal childrearing, which one finds in some opinions and briefs defending restrictive marriage and adoption regimes, receive no mention in the court's analysis. Thus, Nancy Frazier is the children's "de facto parent" because the co-parenting contract designates her as such, and Kelly Goudschall's constitutionally protected right to rear her children does not permit her to "renege on the co-parenting agreement without regard to the rights of or harm to the children." Yet, exactly what visitation arrangement best serves these children requires more evidence.
The analysis in the Kansas case illustrates how courts and other lawmakers might approach parentage questions free from gender-based rules and generalizations. It also illustrates how the current battle over same-sex marriage, while critically important, is but a piece of family law's larger equality project. Although marriage provides one route for creating a legal tie between a child and an adult, not all co-parents will choose to marry – even if they can.
At the core of the discussion between those who would continue to privilege two-parent biological, marital families, and those of us who seek responsible parenthood irrespective of family form is disagreement on how to get to a society that provides greater support for all our families. We believe that the one prescription likely to have the greatest impact on family health would be a laser-like focus on employment: Provide better jobs for blue collar men at the losing end of the economic transformations and for single mothers struggling to get by and the family will take care of itself. The question of why more people do not create two-parent married families – and why American marriages and cohabitations are more likely to dissolve than those abroad – is not about morality. It is, instead, about the relationship between the family and the larger society.
The family is not an unchanging monolith that has taken the same form in every era and in every country. Evil stepparents are a staple of grim fairy tales for a reason, as death rather than divorce made historical marriages no more likely to last than today's fragile unions. Societies have, in fact, always varied widely in how they channel resources to the next generation, and even within nuclear families, the organization of roles has changed in response to economic conditions. What once made marriage close to universal was socialization into a system that provided jobs that paid a family wage, did so only for men, and simultaneously restricted women's economic and reproductive autonomy. Today, that system is, thankfully, no longer in place, and what prevents its resurrection is less the commitment to the equality of women than a new economy that no longer rewards male brawn over other skills.
In our contribution to this volume, we view changes in the family largely as an incomplete response to the needs of a new, technologically driven economy. That economy rewards education and investment in the market potential of both men and women. Realizing the benefits of that investment, however, delays readiness for family life into the mid-to-late twenties, if not later. The most stable families have been those that embraced the change, promoting education for both men and women, and postponing childbearing until the adults have reached a measure of financial independence and emotional maturity. These families have adopted more flexible attitudes toward gender and a commitment to manage reproduction. The new system respects the life and reproductive choices of the mature and the independent; single parenthood for a professional at thirty is a different matter than it is for anyone at seventeen. Yet, for those who succeed, two-parent families largely follow as a matter of course.
The challenge for any model, however, is growing inequality in the society as a whole. This greater inequality makes the search for the right partner more perilous. In another era, an executive might have married his secretary. Today, he is much more likely to marry a fellow executive, and, indeed, college graduate men have become much more likely to marry college graduate women than a generation ago. At the same time, the new economy effectively writes off a high percentage of low-income men as unmarriageable due to high rates of chronic unemployment, imprisonment, violence and substance abuse.
The changing fortunes at the top and the bottom are not just a matter of short-term adjustments to employment prospects. They create self-reinforcing patterns of behavior. At the top, the search for the right partner is as important as entrance into the right college, and both men and women both understand that continued education and a steady job is the ticket not just to greater income, but better family prospects. For others, neither the good job nor the stable relationship may be attainable. The effect of writing off such a high percentage of men as disposable has been to create a gender mismatch. The women, who increasingly outnumber the marriageable men, come to the conclusion that in a world in which men have less to offer in terms of either reliable income or trustworthy behavior the only security comes from investing in themselves and their children. The better off men in these communities find that they can play the field, and the women, after too many disappointments, see the men as a threat, not an advantage, to their ability to raise their children.
We believe that it critical to assess the links between inequality, employment, and the family and, at a minimum, to consider measures that provide greater family security at a time of greater employment instability. Consequently, until the study of the family is reintegrated into a larger discussion of social and economic forces, true understanding of the changing nature of family structure is impossible.
What Is Parenthood? forces both sides of the marriage and parenthood debate into conversation about social science, biology, and legal analysis. This debate isn't just about how to get the "best" results in parenting. It's also about our core constitutional values, including commitments to equality, liberty, and personal dignity. Our right to make fundamental decisions about how to achieve basic social goods necessarily leads to a plurality of family forms. It's not enough to look at empirical evidence, which in any event we probably cannot understand in any objective way. We must also consider our constitutional commitments.
For example, although differing on the specifics, most of the book's contributors agree that children benefit significantly from secure attachment to at least one adult. Some additionally emphasize the particular importance of attachment between a biological mother and her infant, but this becomes tricky. If the mother-infant relationship is really so critical, does it follow that we should implement mandatory maternity leave or banish women from the workforce unless they foreswear motherhood? If we focused exclusively on "best outcomes" for children, then perhaps it would. But parenthood implicates the rights and wellbeing of multiple stakeholders, and forcing women to mother in a particular way, even to salutary effect, would undermine their basic equality, liberty, and personal dignity. Our Constitution rejects efforts to force women, and men, into predefined parenting roles.
What we're left with then, unless we reinvigorate a more coercive State, is the fact of diversity in family life. To some extent, the integrative model, which emphasizes heterosexual marriage as "the central social institution for integrating sexuality, reproduction, and parenthood," acknowledges that diversity. But in preserving the integrative ideal, supporters have made concessions that undermine it. For example, the integrative model accommodates adoption by married couples, even though this violates the integrative tenet of biological connection between parents and children. But this adoption scenario doesn't stray too far from the integrative ideal: it still features a married heterosexual couple raising children.
We've reached a fascinating moment in the same-sex marriage debate, however, where integrative model adherents have come out in support of same-sex marriage. First David Blankenhorn, star witness for proponents of the same-sex marriage ban in California, announced his support. Now a cadre of Republicans has joined former RNC Chairman Kenneth Mehlman in support of same-sex couples before the Supreme Court. How do we understand this dramatic shift? I think it suggests an attempt to reconcile the fact of diversity, and the fact that same-sex marriage garners greater acceptance each year, with a desire to maintain the hegemony of the integrative family ideal. We see a shift to emphasize aspects of same-sex marriage that fit the integrative model – two people, committed relationship, childrearing. But we need to consider just how big a concession this is. Same-sex marriage does not fit comfortably within the integrative model. It eliminates gender complementarity and biological connection of children to both parents (though a child might still be biologically related to one parent). These are key integrative tenets, and supporters have relied heavily on them to exclude same-sex couples from civil marriage. Remarkably, then, Mehlman's brief contends that the benefits of marriage to children "do not depend on the gender of the individuals forming the married couple." I agree, just as I absolutely believe that same-sex couples should have the unequivocal right to marry. But I don't think we can say this still fits the integrative model.
Diversity model supporters should resist this attempt to co-opt same-sex marriage within the integrative framework. At some point the exceptions swallow the ideal. If the integrative model comes to accommodate same-sex marriage, then we risk further marginalizing other family forms that would benefit from legal recognition and support. Certainly, same-sex marriage has been about many things, but there has always been some concern for challenging gender norms inherent in traditional marriage and recognizing the dignity and moral good of a variety of adult intimate relationships and parent-child relationships. As we come closer to national recognition for same-sex marriage, we shouldn't lose sight of its transformative potential.
In keeping with the spirit of What Is Parenthood?, this is the moment to expand the conversation. We should continue to fight for same-sex marriage, but we also need to point out that marital children may flourish in part because the State provides extraordinary support to marital families. We must continue to emphasize that children often experience important attachment relationships with caretakers other than biological parents. We should stress, as contributors Carbone and Cahn do, that we can improve child outcomes by helping adults invest in themselves and their families' futures, whatever diverse forms those families take. Let's keep the focus on family diversity and the supports these families require to thrive.
In What is Parenthood? Linda McClain and Daniel Cere bring together an interdisciplinary group of scholars in a dialogue about parenthood, marriage, and the role of law, loosely organized around two radically different models. The integrative model generally views optimal parenthood as marital; optimal marriage as heterosexual (based on a perspective of sex differences); and optimal parent-child connections as biological. The alternative diversity model defines parent-child relationships not only by biology or adoption but also functionally, without attachment to a particular number or gender of parents, or to marriage as a preferred parental status. To the extent marriage is an available family form for engaging in parenthood, this model supports a broad definition of marriage that includes same sex marriage. The book epitomizes what Martha Fineman calls an "uncomfortable conversation:" providing a space for those who strongly disagree to engage with each other. The hallmark of an uncomfortable conversation is listening, even if there is no agreement, while also being attentive to areas of similarity and common goals even among positions often assumed to be in tension with each other. The overarching value of this book is that it challenges all of us to listen, even if we continue to disagree.
The book comes at a particularly interesting time: several family law cases are before the U.S. Supreme Court that sharply bring into focus the core issues of the volume. How would the two models, and the range of authors who not only disagree over models, but also disagree within the models, decide these cases? In the same-sex marriage cases, Hollingsworth v. Perry , No. 12-144 and United States v. Windsor, No. 12-30, the Court will consider the constitutionality of Proposition 8 denying same sex marriage in California, (Perry), as well as the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA)(Windsor), limiting federal benefits to marriage defined as limited to heterosexual pairs. The cases either directly or indirectly implicate parenthood arguments. The justification for limitation of marriage uses the integrative model argument regarding the value and distinctiveness of heterosexual couplings and the importance of legalizing and supporting the consequences of heterosexual reproduction. In opposition, advocates for same sex marriage use diversity model arguments regarding the equal ability of gay and lesbian parents to function as parents, as well as rejecting a definition of marriage inextricably linked to reproduction and biological parenting. What these cases expose, in addition, is the importance of considering the issues from the perspective of children and their independent rights. It is a critical piece of the parenthood puzzle to consider the voice and perspective of children, not just the voice and perspective of adults. No advocate of either model would argue for intervention in families, or the removal of children from parents, based on their model. But legal support based on particular models has an influence on the lives of children if it treats children or their parent(s) as less than equal to a preferred norm. So, for example, it does not make sense to deny the benefits of marriage from the perspective of children of same sex couples. Nor does the embrace of the existence of sex differences translate into a viable argument from the perspective of children's individual and sexual identity. Sexual identity is not shaped exclusively by who is in the home, but rather is influenced by a host of other contextual factors, not the least of which is social patterns and mores. These are socially constructed, not biologically driven. For children, their identity is not merely an imprinting of parental norms; rather, it reflects their emerging individuation and autonomy. Finally, the same sex marriage cases remind us that the focus on the definition of marriage has skewed the dialogue about parenthood. For example, some in the diversity camp might argue that our fixation on this particular issue tends to reinforce the marital model and renders less visible the importance of supporting diverse family forms in order to support all children.
In the third case before the Court, Adoptive Couple v Baby Girl, A Minor Under the Age of Fourteen Years, Birth Father, and the Cherokee Nation, No. 12-399 (often referred to as the Baby Veronica case), the Court will consider the standard for evaluating contested adoptions in Indian Child Welfare Act (ICWA) cases. The particular configuration of the parties in this case also raises a host of issues that transcend ICWA, and implicate many issues raised in What is Parenthood? These issues include culture/race as a critical factor in defining parenthood and family; fatherhood norms and expectations; the protection of biological parents versus social parents; and best interests of the child as a standard for the child in the middle of this, who was raised for two years by the adoptive parents, and now has lived for one year with her biological father. The integrative model might be pulled between biology and marriage, as well as having to consider attachment bonds to two sets of parents. Adoption is a peculiar exception enfolded within the integrative model: peculiar because it transcends biology, which is a critical tenet in the model. The integrative model might argue for adoption to favor married heterosexual couples as providing the best adoptive families, and in the event of a contest, would favor those couples as against unmarried mothers or fathers, the typical configuration of birthparents in voluntary placements. The diversity model, while supportive of all parents on the basis of function, would have no easier time deciding the basis for decision making because all parents can argue functional parenthood at the time this case reaches the Court. This case might create peculiar opportunities for coalition around the best interests of the child, that is, to resolve the particular case and others like it based on what is best for the child under these circumstances, and to argue for reframing the process of adoption to prevent the scenario in this case, and to insure early, speedy resolution insures continuity and certainty in the child's life while preventing advantage based solely on passage of time. But advocates of each model might differ on the weight to be attached to what might be presumed to be "better" families. In other words, should a marital family trump a biological parent? Or it might be that advocates of the diversity model would argue for a resolution that honors all the functional parents by working out the best means of connection for the child, similar to some models of open adoption that have challenged our ideas of the best practices for adoption.
What is Parenthood? provides a rich mix of principles, data, and insight to consider these critical cases and those yet to come in a world where the demographics of families are fluid, complex, and controversial.
As co-editor of What Is Parenthood?: Contemporary Debates about the Family, I welcome this chance to explain, in this online symposium, the book's genesis and what it can contribute to contemporary debates about parenthood, families, and marriage. I will illustrate by commenting on two conservative amicus curiae (friends of the court) briefs filed on opposite sides in Hollingsworth v. Perry, one of the two same-sex marriage cases now before the United States Supreme Court.
In the brief that made headlines because of its many prominent Republican signatories, Kenneth B. Mehlman and a group of "social and political conservatives, moderates, and libertarians" argue that "traditional conservative values," including "the belief in the importance of stable families," are not only "consistent with" but "are advanced" by "providing civil marriage rights to same-sex couples." That brief urges the Court to affirm the Ninth Circuit's ruling that Proposition 8, which amended California's constitution to declare that "only marriage between a man and a woman is valid or recognized in California," violates the federal constitution. In contrast, prominent conservative political philosopher Robert George, along with Ryan Anderson, and Sherif Girgis (his co-authors of the book, What Is Marriage? Man and Woman: A Defense), have filed a brief in Hollingsworth arguing that, far from extending marriage's "stabilizing norms," "redefining marriage" to allow same-sex couples to marry would "undermine" those norms and harm "spouses, children, and others."
How can these briefs, which share the premise that marriage fosters stable families, reach such different conclusions about same-sex marriage? One reason, on which What Is Parenthood? sheds light, is that they hold different views about parenthood. They differ, for example, on whether biology and gender complementarity are central to parenting and child well-being. They differ on whether the benefits and protections marriage offers for adults and children are available only if marriage is made up of one man and one woman.
What Is Parenthood? grew out of a public conversation between my co-editor, Daniel Cere, and me about how the liberal feminist approach to the family and marriage that I developed in my book, The Place of Families: Fostering Capacity, Equality, and Responsibility, differed from the conjugal model of marriage that Dan elaborated in his work and in publications by the Institute for American Values. Why did we see things so differently? Were there points of common ground? That conversation, facilitated by David Blankenhorn, led us to undertake a book project to explore how disagreements about marriage and the direction family law and policy should take often rest in conflicting convictions about parenthood. In What Is Parenthood?, we, along with a distinguished group of scholars from different disciplines, grapple with significant questions about parenthood. As a guiding framework, we use two contrasting models of parenthood: the integrative model and the diversity model. We acknowledge that there are variations within these models and that the image of a continuum might help us to map approaches to parenthood. I am very grateful to legal scholar Nancy Dowd, our series editor at NYU Press (and contributor to this symposium), for seeing the value of the book's approach to parenthood.
I urge readers to consult the book for a full account of these models. Here is a thumbnail sketch. The integrative, or conjugal, model, regards marriage as the central social institution for uniting heterosexuality, reproduction, and parenthood so that children grow up with their two biological parents. Calling the model "integrative" highlights that biological, social, and legal parenthood should all fit together in marriage. The model stresses sex difference and gender complementarity: marriage channels human bonding and reproduction to ensure that children have a biological father and mother, who tend to parent differently.
The diversity model recognizes and responds to the diversity in patterns of family life, including the different pathways to parenthood. Many proponents of the model (including me) share the integrative model's conviction that marriage is an important institution for linking adult-adult intimate bonds to the parent-child bond. However, the diversity model supports same-sex marriage as furthering child well-being. The model defines parenthood more by reference to the quality of the relationship between adult and child than to whether a biological or formal legal tie exists between them. Thus, it supports adoption and the use by adults of assisted reproductive technology to become parents. Instead of insisting that children need and have a right to one biological mother and father, it maintains that children have a basic right to healthy attachment and good parenting. The model also embraces family law's move away from fixed gender roles for spouses and parents and toward equality as a basic norm.
With these two models in mind, how do the two contrasting amicus briefs map onto contemporary debates about parenthood? First, the George Brief asserts the integrative, or conjugal, model of parenthood and marriage. It contrasts marriage as a "conjugal relationship – the type of union that only a man and woman can form" with a "revisionist view" that marriage is "just the sort of emotional union that any two (or more) adults can form." Marriage is unique: while same-sex couples (and close friends, for that matter) can unite hearts and minds, only one man and one woman can unite bodily in a generative act – sexual intercourse – and produce new life. Society's interest in marriage is as (quoting James Q. Wilson) "'a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.'" Because of marriage's special role, allowing same-sex couples to marry will "obscure the true nature of marriage as a conjugal union." This will undermine – rather than extend – marriage's stabilizing norms.
The George Brief links the conjugal model of marriage to gender complementarity: it asserts that "'men and women bring different gifts to the parenting enterprise'" (quoting W. Bradford Wilcox) and that (citing studies) "a conjugal union is, on the whole, the most appropriate environment for rearing children." Recognizing same-sex relationships would "legally abolish that ideal," and "teach that mothers and fathers are fully interchangeable."
Second, the Mehlman Brief is a hybrid of the integrative and diversity two models. Marriage's role in fostering stable families, it argues, will be furthered – not undermined – by "providing civil marriage rights to same-sex couples." It continues: "there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples." To the contrary, "the facts and evidence show that permitting civil marriage for same-sex couples will enhance the institution, protect children, and benefit society generally." Thus, "the stability and mutual support and obligation" that marriage confers should be available to same-sex couples.
"Marriage," the brief asserts, "also benefits children." Consistent with the diversity model, the Mehlman Brief rejects gender complementary as necessary for optimal parenting. The benefits of marriage for adults and children, it asserts, "do not depend on the gender of the individuals forming the married couple." Further, there is "no biological justification" for denying civil marriage to same-sex couples, and no evidence that allowing them to marry will undermine marriage's importance for opposite-sex couples. The brief also appeals to findings that there are "no significant differences" in child outcomes between same-sex and heterosexual parents. Marriage, it states, is a "child-protective institution," but this includes protecting children who are not biologically related to their parents (such as adoptive children).
The brief cleverly offers the example of the First Family to challenge the idea that marriage's primary role is to "channel the procreative impulse": "Our Nation's first President and his wife had no children together, but their marriage provided a protective family structure for raising Martha Washington's children by her first marriage as well as her grandchildren." In other words, children will benefit by bringing same-sex couples under the big tent of marriage.
Like the integrative approach to parenthood, the Mehlman Brief asserts that marriage is the optimal setting for child-rearing. However, like the diversity approach, it asserts that a marital family consisting of two men or two women can foster child well-being and family values. The brief also resonates with the diversity model in insisting that an appeal to gender difference does not justify excluding same-sex couples from marriage and the protections it brings for parents and children.
That prominent "social and political conservatives, moderates, and libertarians" are arguing that same-sex marriage will strengthen marriage and promote important values is a dramatic and encouraging development in society's evolving approach to parenthood. (The brief is also significant for its argument that marriage is a fundamental right that should be available to same-sex couples, but I confine myself here to the parenthood dimension of the brief.) Marriage, on this conservative view, is a big tent that can include families with married, same-sex parents. This seems consistent with the call by the Institute for American Values for a "new conversation about marriage."
That said, I have three concerns, from the perspective of a diversity approach, about this big tent conservative approach. I raise them to invite comment, but must defer a full discussion to another day. First, as a prior symposium on this blog (on the State of Our Unions 2012 report) detailed, in the United States, there is a growing, class-based marriage gap, or what I called there "the other marriage equality problem." How should family law and policy address this gap, particularly when adults who feel marriage is out of reach become parents? Second, the diversity model would resist the inference that because marriage is a valuable way to integrate intimate and parenting bonds, it is the only valuable family form or the one most worthy of governmental and societal support. One premise of the diversity model is that some degree of diversity in family forms and parenthood is inevitable as people exercise their moral capacity and freedom to live out their vision of the good life.
Third, both the George Brief and the Mehlman Brief stress the important role of marriage in advancing a traditional conservative value – limited government – by reducing the need for governmental support of children and families. We might call this the "private welfare function" of families. Certainly, families do play a vital role in providing nurture and care for, and meeting the economic needs of, their members, but this does not mean that government has no responsibility to meet such needs. (Interested readers may find the work of Martha Fineman a useful introduction to this issue.) There are lively and significant points of disagreement between conservatives, on the one hand, and liberals, feminists, and progressives, on the other, about the contours of public and private responsibility when it comes to supporting families!
I look forward to the comments on What Is Parenthood? in this symposium and encourage those whose curiosity is sparked to consult the book as the political and legal debates over parenthood, families, and marriage continue to evolve.
Mortality. Adaptation. Life. Beauty.
I am a pastor, writer and hospice professional. As editor of the Symposium series, I hesitated to write as part of it, but I regret that we do not have a strong voice from the integrative perspective to add increased nuance to the discussion which is evidenced in the book. And thus, I write as a novice to the organizing categories in What is Parenthood?, but I hope that my reading as a layperson who culled much from both perspectives will add to our discussion.
As I held in conversation and tension the "integrative" and "diversity" models of parenthood, I carried these words (mortality adaptation, life and beauty) with me as an interpretative lens. By the end, I appreciated the clarity and tensions of the guiding typology finding places of resonance and dissonance with my own past thought and experience, and overall, I felt like my toolbox for thinking about how best to serve real families, in real time to be greatly enhanced. Whether reading Doucet's recommendations for family medical leave and fathers, or the ways that different scholars draw upon John Bowlby's work on attachment theory, or the nuances of transnational parenting in an age marked by high levels of immigration, I was relieved that on-going scholarship concerning parenting and parenthood continues to be shaped by the needs of reality. A dance emerges between the practice of law, anthropological reflection, descriptive research, prescriptive suggestions, and life lived.
For me this dance in the understanding of life and relationships is shaped by mortality, adaptation, grief, and beauty, which often mixes in messy ways that demand a nuanced system of physical, emotional, financial, and spiritual support. I find that my words find a home in both the integrative and diversity models of parenthood, and thus I am reminded that both have much to offer laypeople reading.
The Diversity Model and the Power of Adaption
To show my cards, in terms of feminist theory and same-sex marriage, I resonate with the diversity model of parenthood because my practical experience in hospice care tends to revolve around compassion and adaptation within a family system. As a hospice team, our first questions for individuals and families entering end of life care focused on "who" and "how?" Who will make all the practical, financial, emotional, and spiritual adaptations to make self-fullfilling life closure possible for this individual? By necessity, the "how" trumps the "who" as I have come to focus on process over form when defining a unit of care, often the family. Caregiving crosses gender and personality: anyone can be considered the primary caregiver for a dying person we simply assess their willingness and ability to do so. Our goal as a hospice team of professionals is to empower those who are willing and able to provide care physically, emotionally, financially, and spiritually to be effective and compassionate givers of care. On a day to day basis, I have seen that care for the vulnerable happens most naturally and peacefully when a person can reside in the place they call home and be surrounded by the people they call family. The diversity approach to parenthood can be seen at the end of life in the diverse constellation of family caregiving we see in hospice care.
The Integrative Model and the Power of Loss
But here is where I begin to resonate with the integrative model of parenthood with its focus on biology and the powerful connections humanity has to our genetic family tree, the right of the vulnerable to know their biology and have access to kin, and the nuances of gender, hormonally and societally. Biology often rises to the fore when we have a physical problem – debility, illness, accident. The doctor or nurses' first questions to a patient often involve a listing of physical symptoms and a listing of our family history – all biology. Philosophically, in hospice like in parenthood, the center of care is a vulnerable person who is facing questions concerning what is means to be human. For both the vulnerable young and for the vulnerable dying the guiding question remains the same, "What does it mean to be alive?" A question always asked under the shadow of our common fate of mortality, whether we are a newborn or ninety-five.
While I may not fully agree with all of the policy implications of the integrative model, I often find that the integrative model begins at points of potential loss and seeks to honor that experience of mortality and grief. I read a greater sensitivity to mortality as defined by human biological limits and to the grief experience that arises from loss. In life, loss of ability or function happens, loss of life and loss of relationship happens, and ultimately, a loss of a desired life narrative happens. "I can no longer hear what you are saying. I can no longer jump up and run to the restroom. I can no longer drive a car. I feel pain. I wish that Morris was here but he is in jail. I wish that Judy would come visit me but I hurt her and she cannot bear to see me and I cannot control her. I wish I knew where this cancer came from. I don't want to die." Hospice offers an intense window into the full menu of human experience of grief and loss in terms of physical limits, emotional limits, and financial limits. Some limits can be traced to choices that were made throughout life, but most emerge and can be mysteriously traced to the recipe of genes, environment, and accident that merely present us with undeniable limits.
And here is where I saw how the integrative and diversity models are both necessary for human relationships, be those of parenthood or caregiving at the end of life. The power of loss and the power of human adaptation are both vitally necessary to the hope of beauty. When we acknowledge the very limitedness of existence, when we trust that holding the shards of loss is necessary and possible when shared and carried communally, and when we live in hope that we can find ways to adapt who are to what we need, beauty can emerge and be embodied.
Mortality. Adaptation. Life. Beauty.
I applaud the editors and contributors of What is Parenthood? for making such a thoughtful and necessary intervention in family law debates. By taking parenthood as its central inquiry, the book avoids framing parenthood as a derivative, or even instrumental, inquiry of debates about state recognition of marriage. That focus is rare and vitally important. I wonder, however, if the book both does too much to distance legal parenthood from marriage recognition while also doing too little.
Too Far From Marriage?
One commonality of the integrative and diversity models of parenthood elucidated in the book is that they both believe non-state actors should be primarily responsible for children's dependency and development. The models often diverge when it comes to which or how many private actors should be responsible for that dependency and development – and which private actors should be able to bring these dependent and developing beings into the world – but both assume law's primary function is finding the best parents to support children.
It wouldn't have to be this way. Instead, the state could directly take on more of children's dependency. And I'm not talking about Plato's vision of fully disconnecting childhood from parenthood. There's a very broad spectrum between that vision and our current reality. The state could occupy a variety of positions along the spectrum, instead of occupying one pole at the end, providing more support to children and their caregivers without taking on sole responsibility for children.
Instead of providing such support, the state recognizes legal parents and charges them with taking on children's dependency. Legal parenthood thus serves a vital state function: the privatization of dependency.
This connection between legal parenthood and the privatization of dependency is deeply connected to marriage, whether we like it or not. The state traditionally recognized marriage as a means to channel sex acts into an acceptable form of intimacy. By criminalizing sex outside of marriage, the state attempted to confine sex to those situations in which men would be readily available to provide consistent financial support to any children conceived as a result of that sex and to the women who would bear and care for those children. The status of marriage provided an inducement for men to do so.
The law of marriage has obviously evolved in important ways over the past fifty years. Yet as the law of marriage evolved – or because the law of marriage evolved – states developed ways to privatize the dependency of children outside of marriage. And those ways center around expanding both the parties recognized as parents and the obligations of those parties. The state thus replaced marriage with parenthood as the vehicle for privatizing dependency.
In my view, this privatization of dependency is at the core of current legal recognition of parenthood. The authors in the book rarely acknowledge this function, however. They thus assume that the privatization of dependency is an inevitable or natural part of parenthood.
I am very uneasy with that assumption. Even if we cannot avoid the privatization of dependency in our current democratic system, or even if we want to embrace the privatization of dependency, it is important to position the privatization of dependency as a choice that benefits some and harms others, often along class lines. Ironically, the best way to do that may be to resist the separation of parenthood and marriage in order to explore how both have served, and continue to serve, state ends.
Too Close to Marriage?
At the same time, I wonder if the book does too little to separate marriage from parenthood. Its very title, "What is Parenthood?", keeps the focus on adults, much like the question "What is Marriage?" does. Both questions focus on adults' relationships, either their horizontal relationships with each other or their vertical relationships with children.
What if we instead asked, "What is Childhood"?
The choice is consequential. "What is Parenthood?" keeps the focus on who may exercise authority over children. When the analysis is thus framed, children risk becoming defined through that authority, becoming derivative of parents' rights. Indeed, where are the children in this book?
The book's focus on the appropriate allocation of legal authority over children of course reflects a deep and important concern about the socialization and support of children. But it also presumes that children exist solely in relation to parents or state actors. I have previously written about the ways this focus overlooks many of the other adults in children's lives. But it also does more, overlooking the ways children live active lives in the here and now, pursuing unique pleasures and purposes outside of dependency.
These intrinsic experiences of children are missing from almost all of family law analysis. The editors and contributors of What is Parenthood? provide varied and nuanced accounts of how the state might optimally support children's development. I hope they will build on that analysis to also consider children's lives outside of dependency. Interrogating diverse constructions of childhood might indeed provide the ultimate means of disentangling marriage from other forms of family recognition. I look forward to continuing the conversation.