What is Parenthood? Susan Frelich Appleton

03.21.2013, 3:00 PM

Susan Frelich AppletonSusan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law and Israel Treiman Faculty Fellow for 2012-13

Parentage by Contract as New Tool for Implementing Family Law’s Equality Project?

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.


24 Responses to “What is Parenthood? Susan Frelich Appleton”

  1. Diane M says:

    One thing that struck me about using the laws granting parenthood to the mother’s spouse – there is already a movement to change this for other reasons.

    Some men feel that it is unfair to presume that they are the parent of a child if it can be demonstrated that they are not the biological father. Or to presume that they have no rights if they are the biological father and not the husband.

    So my question is from a legal point of view, what happens if the law is changed so that we don’t just presume paternity when we know that someone is not the biological father of a child?

  2. Diane M says:

    I don’t think the precedent of parenting by contract promotes equality. It leaves out the critical voice of the children. It denies the reality of biological relationships.

    “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.”

    We have adults now who were conceived using assisted reproduction. They, like other adopted children, are calling for more openness about the identity of their biological parents. They want to have their parents listed somewhere on a birth certificate for them to look at someday.

    Adoption is a wonderful thing. There’s nothing wrong with listing the biological parents on the certificate and then writing a new adoption certificate with the child’s parents on it. The adoptive parents are then the legal parents.

    However, making one person a parent because they contracted with someone to be a parent skips that step. Rather than confirming that this is okay, we need to set up ways for parents to adopt the children created by assisted reproduction.

    Movements for the rights of LBGT people need to take into account movements by adult adoptees and their concerns.

    “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.”

    Given what we know about the benefits of marriage to children, I think we have to require parents who want to adopt or use assisted reproduction to get married first. Of course, that means we need to make same sex marriage legal so that same sex couples can adopt together. However, weakening the requirement that adoptive parents should be married just hurts the children.

  3. fannie says:

    Good post! Especially this:

    “…individual children should not be subject to a parentage regime based on generalizations, rather than their own particular best interests.”

    Similarly, it’s unfortunate that so many people advocate instead for a regime based on stereotypical notions of “gender complementarity,” which seems to elide the reality that that’s not, actually, the best parenting and family scenario for all people everywhere.

  4. Diane M says:

    @fannie – “…“gender complementarity,” which seems to elide the reality that that’s not, actually, the best parenting and family scenario for all people everywhere.”

    fannie – could you explain more what you mean by this. I am often not sure what anyone means by gender complementarity besides the obvious biology.

    And do you think that gender complementarity might sometimes be a bad family scenario or just not the best one?

  5. fannie says:

    Diane,

    I use the term “gender complementarity” how I see proponents of this concept use it, whether it’s based on religion or so-called “evolutionary” reasons. And they tend to use it in an incredibly broad manner to suggest that, even with respect to personality traits, most or all men and women are “opposites” or “complements.”

    Since you said you don’t know what people mean by it, here is a law review article that discusses “gender complementarity” and how that concept is employed, especially, in arguments for “traditional marriage.”

    For instance, Rep Marilyn Musgrave invoked the concept in favor of a Federal Marriage Amendment, claiming:

    “The self-evident differences and complementary design of men and women are part of [God's] created order. We were created as male and female, and for this reason a a man will leave his father and mother and be joined with his wife, and the two shall become on the the mystical spiritual and physical union we call ‘marriage.’ The self-evident biological fact that men and women are designed to complement one another is the reason that for the entire history of mankind, in all societies, at all times, and in all places marriage has been a relationship between persons of the opposite sex.”

    What I like about Prof. Appleton’s post is that it is cognizant of the reality that families exist outside of what some people refer to as “the gold standard” of one-mother, one-father “gender complementary” norm – and that not only do these families exist, but children raised in these non-normative families often turn out fine.

    My point is that I don’t think stereotypes about gender, let alone mythical fantasies about how men and women are two halves to one “complementary” whole with respect to all traits, should guide the rules surrounding who gets to raise children (or adopt them) and who gets to marry their partner.

    I’m not sure what you mean exactly by your second question. When you call a family scenario a “gender complementarity” one, are you talking about a family in which traditional gender roles are practiced? If so, I would be hesitant to make broad statements about whether or not such a scenario is good or bad – I think it really depends on the individuals and family involved and whether or not their needs are being adequately met.

  6. Diane M says:

    @fannie – “When you call a family scenario a “gender complementarity” one, are you talking about a family in which traditional gender roles are practiced?”

    I just meant whatever you thought gender complementarity was. So if it means a man and a woman, when you say it’s not the best solution for everyone, everywhere, are you saying that it’s not superior or that sometimes it’s inferior? I wasn’t clear on what the sentence meant.

    My own view of the two genders is probably close to yours. I think that people vary more as individuals more than they do as men versus women. I see general differences between the two sexes as groups, but want to be sure that individuals are free to be who they are. (Tallness for example – men are taller than women, but there are some women who are taller than most men, etc.)

    In my own life, I have found it very valuable that my husband is different from me when it comes to parenting. Some of these differences fit our genders, some don’t. In addition, when I see same sex couples, the two parents always have different personalities!

    The value I see to having a parent of each gender has to do with role modeling and with talking about subjects related to sex. This seems to me to be something people can do something about if they don’t have two actively involved parents of each gender.

    I think it is incredibly valuable to children to be raised by their parents. This can be done by one parent less outside the home or by both parents working less outside the home. In general, economics make the first option work better. I don’t think this has to be done along gender lines, although I think that it is likely that it will turn out that way – and I don’t think we should keep trying to push women to not do this. I would rather support women and men who put kids over career in various ways.

    Anyhow, I don’t see gender complementarity as being about having traditional gender roles. I value those roles, but am glad that the modern version of at-home parenting is more flexible and less heirarchical.

  7. Hector_St_Clare says:

    Re: (Tallness for example – men are taller than women, but there are some women who are taller than most men, etc.)

    Rather few. Around 7% of women are taller then the average man.

    Re: When you call a family scenario a “gender complementarity” one, are you talking about a family in which traditional gender roles are practiced? If so, I would be hesitant to make broad statements about whether or not such a scenario is good or bad – I think it really depends on the individuals and family involved and whether or not their needs are being adequately met

    I’m actually rather (pleasantly) surprised to hear you say that. Many people are less open-minded than you, and would be quite happy to make broad statements that families with complementery gender rols are backwards, evil, and out-of-date.

  8. Victor says:

    Diane,

    I’d like to point out that an individual’s height is not dependent on the society’s views, it is genetic, but also depends on what nutrients the body receives. (So more or less we’re talking about biology, chemistry, etc.)

    When we’re talking about gender (as opposed to sex/primary and secondary sex characteristics), we are talking about pretty much societal construct. What does it mean to be masculine? Feminine? How about “effeminate?” A tomboy? Do women wear skirts because their bodies preclude them from wearing pants? Do men generally abstain from make-up, because their skin reacts to it differently than women’s? Must girls stay at home and only think of impending motherhood? May a girl go into martial arts? Is there something precluding a boy from knitting or embroidery?

  9. Hector_St_Clare says:

    Victor,

    You might be surprised how much of our personality traits are genetics (or caused by things like intrauterine environment) as well.

  10. Victor says:

    Hector,

    You are making assumptions about what I think and the (educational) background I have.

    I’d like to learn though how personality traits are related to skirts and hobbies that had been until recently considered “appropriate” for only one of the genders. (I know I may. After all, I already read your opinion that the government should limit educational – just educational? – opportunities for certain groups.)

  11. Hector_St_Clare says:

    Re: I’d like to learn though how personality traits are related to skirts and hobbies that had been until recently considered “appropriate” for only one of the genders.

    I don’t know about skirts, but I’d be surprised if choice of hobbies didn’t reflect personality traits to some extent. We know that girls are less competitive, less risk-taking, are generally less physically strong than boys, etc. so that probably affects what hobbies they’re into.

  12. Victor says:

    Hector,

    The problem is that we don’t know to what degree these “gender-specific” personality traits (I’m referring to competitiveness and risk aversion) are a result of biology and to what degree of societal stereotypes.

    As for being physically strong, while being related to one’s sex, it is actually connected directly to society’s view of gender that causes boys to be generally more physically strong. If the majority of society had a few that boys should be held in the house until marriage, sewing duvets and pillow cases, while girls were exercising, developing muscles, and performing feats of strength, it would be the girls, who would be the generally stronger ones. (I would bet that if we compared the population of priests and monks with the population of women actively engaged in sports of comparable age, we’d see exactly that.)

    I know many couples, who are currently having children. In one of those families, the husband is American, while the wife comes from a country, where girls were expected to be more active than in the US from early on in the country’s history. The wife works, the husband is a stay-at-home dad. And other than giving birth, he is involved in the lives of the kids much more in the tradition of American housewives, than his wife is. So, how does that family map out on the “gender-complementary ideal?” They don’t. They’re the opposite.

    The point is, independent of whatever view of personality traits one takes, and I’m quoting Diane, that “people vary more as individuals more than they do as men versus women. I see general differences between the two sexes as groups, but want to be sure that individuals are free to be who they are.”

  13. Hector_St_Clare says:

    Re: The problem is that we don’t know to what degree these “gender-specific” personality traits (I’m referring to competitiveness and risk aversion) are a result of biology and to what degree of societal stereotypes.

    Actually, we have some idea. Testosterone levels predict both competitiveness and risk aversion, and that holds *within* men, so there shouldn’t be an effect of ‘social stereotypes’, or whatever the cultural-liberal explanation for gender differences is nowadays. Some of it is also predictable by intrauterine hormonal exposure (i.e. before you were born).

    Take a look here: there’s clearly some underlying, latent factor that separates people along an axis of masculine vs. feminine personality traits , probably related to prenatal androgen exposure or something like that. Unless you can think of a ‘social conditioning’ reason why the length of your index and ring fingers should be socially constructed, or something.

    http://en.wikipedia.org/wiki/Digit_ratio

    As for physical strength…..uh, we know that your ability to develop muscle is very largely hormonally regulated, and differs between the sexes. Of course you’re right that work and exercise are going to be big factors in contributing to physical strength. But, however hard most women exercise or work out, they won’t be as strong as a typical man who exercises regularly. An excellent time for a women’s race (in swimming, running, etc.) is equivalent to about a moderately good time for a man.

  14. Victor says:

    Hector,

    The issue of “gender,” “gender-complimentarity,” and personality traits is a red herring in this discussion.

    Let’s get personal. Let’s take me as an example. I have not been into sports. I can knit, I can cook and bake, I have a good sense of design. I am risk averse and not very competitive (well, aside from in being recognized as best for my apple pie recipe). My partner of 9 years is different in many respects. E.g., he can only cook by following a recipe. As an example, his idea for decorating his apt for Halloween consisted of pasting several strips of black crepe papers from the ceiling. (Needless to say, we went with my idea and skill of turning that paper into giant spider webs.)

    Do we, a same-sex couple, not fall within this concept of “gender-complementarity” in that case? If not, why not?

    My point is that each couple is unique, because it is a unique combination of unique individuals. Even if every personality trait is influenced by biology, each couple (opposite-sex or same-sex) consists of two individuals, with a variation in their characteristics. There’s some number of even heterosexual couples, where the combination goes against the “gender-complementarity” principle. Not every opposite-sex heterosexual couple consists of a manly man and a girly woman. Some couples are equally interested in active or passive pursuits and individuals do show characteristics that would be “gender-atypical” even by your idea of what influences gender more.

    The idea of “gender complimentarity” relies on the dichotomy in characteristics between the two groups more so than on the range in characteristics of individuals, while the reality is that each couple consists of two individuals who may rate quite differently from the average “gender typical” characteristics.

  15. fannie says:

    Hector,

    I’m actually rather (pleasantly) surprised to hear you say that.”

    The only way that would surprise you is if you had been pre-judging my beliefs before you actually knew what my specific beliefs are based only on the fact that I’m a progressive feminist.

    “Many people are less open-minded than you, and would be quite happy to make broad statements that families with complementery gender rols are backwards, evil, and out-of-date.”

    I suppose so, but really, you’re speaking hypothetically and not actually about real, specific people. So, that statement is really that productive to the discourse. I find that it’s better to actually engage people’s arguments and opinions who are participating in the conversation, or to reference specific people.

    I could just as easily, vaguely, and accurately say that many people are quite happy to paint egalitarian families as evil, “politically correct,” and harmful to society.

    And, just out of curiosity, when you said about a week ago that you could no longer participate at this blog because it offended your sensibilities, what has made you change your mind about continuing to engage here?

  16. Hector_St_Clare says:

    Victor,

    I’m certainly not denying that every couple is different. I’m just saying that I think the complementary gender roles model works best for most people, and in general. Not in every case, of course.

  17. Matt N says:

    Hector St Clare: “I’m actually rather (pleasantly) surprised to hear you say that.

    Beyond what Fannie’s already said, this seems to speak to how frequently “I think other ways of envisioning relationships or conceptualizing gender have worth” gets read as “I think the idea of complementary genders is [anything].”

    It’s almost like the idea that gender complementarity doesn’t explain every facet of every romantic or sexual relationship is seen as a declaration of its invalidity. It’s as if it’s a concept that’s assigned so much explanatory power that saying it doesn’t explain every single thing is read as a fundamental challenge to it.

  18. mythago says:

    Tallness for example – men are taller than women, but there are some women who are taller than most men, etc.

    This type of discussion is a deliberate rhetorical obfuscation. So, for example, while the correct statement is actually “median male height is several inches taller than median female height”, in English we say “men are taller than women”, which not only is inaccurate, but suggests that all men are taller than all women. It also ignores the prescriptive aspect of this; we believe that men are ‘supposed to be’ taller than women, and that there’s something unfortunately about a tall woman and risible about a short man. And of course “tall” and “short” are relative, not absolute terms.

    Now take this away from something that can be objectively measured, like height, and into vaguer, softer definitions like “emotional” or “risk-taking”, which can be massaged in such a way that people can make contradictory and circular statements without blinking. (Women are nurturing; the most dangerous place in the world is between a mother and her children.) When you add that to the other fallacies – that differences between groups can be extrapolated to all individuals, and that differences from the median in one direction only are disfavored – and you have gender complementarity.

    This is why gender complementarians tend to oppose marriage equality. To them, the idea that a particular set of paired opposites might not exist in a male/female marriage is such a remote possibility as to be not worth considering; likewise, the idea that a range of traits might coincide in a same-sex couple is impossible. To them, you can’t suggest that maybe in that lesbian marriage, one of the women is “nurturing” and the other “protective”; it’d be like saying “Maybe they’re both over six feet tall”. Similarly, pointing out that there’s no guarantee of their desired complementarity on an opposite-sex couple is pointless, as women and men simply “are” the way they are in such overwhelming numbers that you might as well ask “but what if the man is four feet tall and the woman is seven feet tall”?

  19. intheagora says:

    Increasingly judges will pick which “diversity model” they like and sort out children accordingly based on what they think is best. We will all become legally wards of the state because the natural rights of the biological parents will be dismissed as invalid stereotypes.

    Of course, this is what happens to parents and children in lands that are conquered or colonized. Welcome to the new American Values!

  20. annajcook says:

    To those in this thread who express anxiety over the waning dominance of gender-based assumptions about parenting might pause for a moment to consider how the “common sense” about gender and parenting has historically caused parents and children to suffer because gender ideologies trumped the child’s best interests.

    For example, before the mid-19th century in the West, male parents had absolute authority over their wives and children, and were their children’s legal guardians (as they were their wives’). Women who sought separation from abusive spouses could generally be held hostage by the guarantee that if they left their husband against his wishes, he would refuse her access to any children — and the courts would support his right to do so.

    On the other side, during the twentieth century, “common sense” about gender typically led people to assign custody of dependent children to the female parent in divorce cases, assuming the husband would contribute financially but not be the primary carer. Thanks in large part to egalitarian feminists (male and female alike) pointing out that fathers generally are just as capable of nurturing children as mothers are, it is no longer assumed that women will be the primary care-giver, or that fathers are incapable of providing children the care they need to grow and thrive.

    Rigid notions of binary, oppositional gender roles are harmful to the extent that they constrain human beings from living to their full potential as individuals whose inclinations typically include a unique blend of “feminine” and “masculine” attributes. And in cases where parenting responsibilities are being allocated, such assumptions can lead to what is best in each individual situation for each individual family being brushed aside because it fails to fit the model of “mothers do X” and “fathers do Y.”

    We all benefit from a greater degree of gender independence* in thought and policy.

    *”gender independence” is a sociological term that refers to an individual or cultural ability to understand one’s self and react to one’s social situation relatively independent of rules about what men and women “should” and “shouldn’t” do. For example, a man with a relatively greater degree of gender independence is comfortable expressing a full range of emotional responses as well as making executive decisions and taking decisive action. Gender independence doesn’t mean a lack of gender identity for one’s self, but rather an ability to be comfortable with a full range of human actions and experiences.

  21. intheagora says:

    Does the natural biological family have any rights the state is bound to respect or does the state simply decide what is “best?”

    History is replete with evil and tyrannical governments. Even relatively benign governments should be suspect. In the words of Milton Friedman, if you put the federal government in charge of the Sahara Desert, in five years there’d be a shortage of sand.

  22. Susan Frelich Appleton says:

    Thanks for reading my contribution to this symposium and providing so many comments. In partial response, I’d make the following points:

    In reply to Diane M., I’d point out that legal parentage has never rested purely on biology. The marital presumption (or presumption of legitimacy) has a longstanding history. If we were to decide that the law should recognize only genetic parents, then we’d need to require genetic testing of every child before the birth certificate could be completed. And suppose that such tests show that one or another presumed parent (mother or father) is not a genetic parent — but we could not discover who is. What would happen then?

    Diane M. also raises concerns about the voice of child. I specifically pointed out, however, that one of the strengths of the Kansas opinion, in my view, comes from its emphasis on the particular child’s best interests. The court remanded on this precise issue. In terms of her proposal that we require marriage for adults who wish to adopt or become parents by assisted reproduction: I’d say this proposal rests on a generalization that might not serve the best interests of every child. In 2010, the Florida court of appeals found irrational a law prohibiting gays and lesbians from adopting, noting that such adults had provided excellent homes (as guardians and foster parents) for children who otherwise were very difficult to place. Restricting who may adopt might leave some children without families. Requiring marriage for all who use assisted reproduction would be very difficult to enforce, given the ease and simplicity of self-insemination with donor sperm – not to mention the current inability of same-sex couples to marry in many states. In any event, we do not impose marriage requirements on sexually procreating parents. . . .

    I find the exchange of views on gender and role modeling very interesting. As I read the Supreme Court’s sex discrimination cases, laws cannot assume a stereotypical gender-based role – so a legislature or judge cannot assume that female parent and a male parent necessarily provide different role models. Some of the posted comments seem to agree. I provide a more elaborate analysis of these ideas in my chapter in the What Is Parenthood? book.

    Thanks again for engaging in this conversation.

  23. Diane M says:

    @Susan Frelich Appleton – My question about the marital presumption is what if someone passed a law changing it? I am not sure it would be a good idea, but some people push it. Would that change the law?

    In terms of requiring marriage, I think that if we allow same sex marriage, it would be perfectly reasonable to require an adopting couple to be married. It’s a way of saying, are you really committed enough to each other to raise a kid together?

    I realize that parents can create a baby without being married. I don’t think that means we have to give people the right to adopt or be assisted in creating children without being married. The right is not to create children without marriage, it’s a right to have sex without the government poking its nose into our bedrooms.

    And while it is true that women can easily get sperm, we can still control whether or not someone gets eggs or uses a surrogate.

    In addition, if you make marriage a requirement for having an agreement to raise a child created with someone else’s eggs or sperm, there will be some deterrent in knowing that you can’t enforce your agreement if you are single/you might have to help raise the child created with your eggs or sperm.

    I should add that I am assuming here that same sex marriage is allowed.

  24. Diane M says:

    excuse me, the sentence at the end of the first paragraph should say would that change this case and future cases like it?