Two cases for What is Parenthood?
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.