What is Parenthood? Laura A. Rosenbury

03.22.2013, 8:00 AM

Laura A. RosenburyLaura A. Rosenbury, Professor of Law, Washington University in St. Louis

Parenthood, Marriage, and Children

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.


10 Responses to “What is Parenthood? Laura A. Rosenbury”

  1. Diane M says:

    My basic reaction to this is but what does it mean practically speaking?

    It would be great to start from the point of view of children and then build up from there.

    What I get from doing that is this – children want stability. They want their parents to love each other and stay together always. They want good parents, of course, people who are loving and consistent and not scary.

    Children don’t start with a desire for their biological parents, but when they are older and understand how biology works, they tend to want a connection to them. If they are being raised by someone other than their biological parent, they tend to want to stay with them.

    When I try to look at it from the child’s point of view, I end up thinking that what they would want is for their parents to love each other and take care of them (the children). That changes if someone else raises them or their parents do a terrible job (although children sometimes still want terrible parents).

    In general, though, I think looking at it from the children’s point of view ends up promoting a more conservative view or parenting that includes marriage or a marriage-like relationship.

    I’m not sure that’s what you are trying to get at with this article. So I’m back to what does it mean practically to suggest that we ask what is childhood instead of what is parenthood and marriage?

  2. Greg Popcak says:

    YES! Thank you. Terrific piece and well put.

    As you say, the biggest issue I have with the “new” conversation is that I do not see anyone in the new conversation speaking for the children. In the rush to help adults get along with each other and see that adults “rights” (i.e., desires) are protected, no one is asking these essential questions that you have presented. The fact that there isn’t a ready answer to Diane M’s question, “What does this mean, practically?” is just evidence of my point. How dare we make changes in the only institution intended to protect the rights of children (and this applies to divorce law as well as homosexual unions) without really giving children’s voices a major seat at the table.

    What does this mean practically? I don’t know either. Does it mean that, in divorce cases, children should be assigned an attorney (paid for at their parents’ expense) who represents their needs? Does it mean that there should be a methodological review board made up of people of varying opinions that judge–not the findings–but the strength of the methodology of various studies used by both sides to support their arguments?

    I think most honest people on either side of this issue would agree that research and facts are really not driving this debate. Opinion and sentimentality are. I find that fact deeply distrubing because I have a tremendous heart for children. When I was a kid, the big experiment was “new math.” The result of this experiment was that my generation displayed the worst math and science scores ever. The new conversation is just the new math applied to family life and the ones who will pay the price are the children.

    Regardless of the side you fall on, we all owe it to children to commit ourselves to asking the hard question, what is genuinely BEST for children. Not, “what can they get by with?” or “what’s good enough?” The question must be, “What is best?” That is what must define the terms of the conversation because children deserve our best. We can make exceptions from there, but the exceptions prove the rule, not the other way around.

    We can say, for example, “breast is best” because we know the research supports that. At the same time, we make allowances for bottle feeding,because some kind of nutrition is better than nothing, but we do not say that bottle is best or even as good as breast milk because we know it is not true. In the same way, we ought to be able to say that a two-parent, heterosexual, married family is best for children because all the data shows that is true. We can make exceptions for other family forms because life requires it of us, but we should not be pressured to say or forced to pretend that alternative family forms are as good as traditional, heterosexual married households. It is simply not true and to say otherwise is politics, sentiment and folly, not fact. Our children deserve better than that.

    Once we settle the “what is best for children?” question, exceptions can be made from there, but the bar cannot be lowered to meet the exception and it irresponsible to try.

  3. [...] Scholars Blog is having an interesting discussion of that question.  The best contribtution IMO is by Laura Rosenbury, a Law Professor at Washington University in St Louis.  In sum, she says that the question, [...]

  4. Mont D. Law says:

    (Regardless of the side you fall on, we all owe it to children to commit ourselves to asking the hard question, what is genuinely BEST for children. Not, “what can they get by with?” or “what’s good enough?” )

    I’m sorry, but this is flat out ridiculous. In the United States of America in 2013 the list of things children don’t have the right to is as long as your arm. Crocodile tears and cries of we must protect the children are adding insult to injury in a society that doesn’t believe children have a right to food, shelter, education, medical and dental care, or basic safety unless their parents can afford them.

  5. Diane M says:

    @Greg Popcak – I’m pretty sure that Laura Rosenbury’s intent was not to suggest support for traditional marriage. It’s just that bringing up children may lead you there.

    Also academic language can be too vague and theoretical. It’s really impossible to tell what her argument is supposed to mean practically and we can all come up with different theories about it.

  6. Kevin says:

    @Greg Popcak

    Oh brother, where to begin. How true that facts aren’t driving the debate! Prejudices, tribal/provincial notions of group supremacy, unvarnished hatred and bald-faced lies seem to be the key motivators for some people. But I guess if you feel strongly enough about your position, the end justifies the means.

    “we ought to be able to say that a two-parent, heterosexual, married family is best for children because all the data shows that is true.”

    What data are you talking about? How is it possible to show that, since all reputable (meaning, excluding any work done my Loren Marks or Mark Regenerus) shows that homosexual parents parent as well as heterosexual parents? I, for one, didn’t fall for your sleight-of-hand, slipping in “heterosexual” in with characteristics actually confirmed by research to be superior to lesser variants: two-parent (versus one) and married (versus unmarried).

    Here’s all you need to know: marriage and parenting are about the two most UNREGULATED activities in our society. Pretty much anything goes, so long as no one is being physically abused. As has been noted, kids don’t get a whole heckuva lot of rights in this country. We are only too happy to see them raised by terrible couples, overwhelmed and inadequately resourced singles, in poverty, without adequate food or shelter. There’s little to distinguish the rights of a child and the rights of a pet.

    If you really want to do what’s best for children, you are opening a can of worms that a lot of straight people aren’t going to like. So if “what’s best for children” (which, ironically, relies on YOUR sentimental, foolish notions of Straight Supremacy) is the new mantra, expect a whole lot of backlash from straight people, who often are deficient parents.

  7. Ralph Lewis says:

    @Greg Popcak,

    We can make exceptions for other family forms because life requires it of us, but we should not be pressured to say or forced to pretend that alternative family forms are as good as traditional, heterosexual married households.

    It’s not useful to pose the comparison of children’s welfare within married heterosexual unions against the alternative as a yes or no question. Children born outside of heterosexual marriage would never have been a child from one of those unions to begin with.

    A more practical question would ask what evidence, and what consensus, about alternative family forms would be required to warrant a public policy that either 1) actively discourages, or 2) moves to prevent, adults outside of heterosexual married unions from creating children.

    In general, we as a society don’t designate generic groups of adults as unfit to act as parents and then use governmental resources to prevent them from bringing children into the world. The West dabbled in efforts to control human breeding as part of a scientific and implementable philosophy in the early 20th century, a practice that is thankfully reviled today.

    What you said is not close to that, but there is this analogy to it: one may believe (and even have evidence to support) the notion that children from a particular background, on average, may be deficient in one category or another based on some quality either of their parents or their upbringing. But our cultural rejection of anything resembling breeding restrictions is in keeping with the freedom we maintain for mentally healthy adults to pursue and achieve parenthood.

    Once children are born, all parents can and should have the reasonable expectation of being full participants in the answer to (and improvement of) the question Rosenbury asks: “What is Childhood”?

  8. Diane M says:

    @Ralph Lewis – I think if you take out the heterosexual part, it makes sense for public policy to discourage adults outside of married unions from creating children.

    “A more practical question would ask what evidence, and what consensus, about alternative family forms would be required to warrant a public policy that either 1) actively discourages, or 2) moves to prevent, adults outside of heterosexual married unions from creating children.”

    In fact, we have had public campaigns aimed at preventing teenagers from creating children.

    Actually preventing people from creating children – well, I am against intrusion into people’s sex lives and I think almost all Americans are. But I would support limits that would prevent some people from creating children using technology – for example, saying that a sperm donor can’t father more than a certain number of children or that couples who are using donor eggs must be married (if they are legally allowed to marry).

  9. Matt N says:

    Ralph Lewis: “In general, we as a society don’t designate generic groups of adults as unfit to act as parents and then use governmental resources to prevent them from bringing children into the world. The West dabbled in efforts to control human breeding as part of a scientific and implementable philosophy in the early 20th century, a practice that is thankfully reviled today.

    What’s interesting is that several commentators here consistently frame modern attempts at that as a struggle against eugenics. It’s worrisome how easily misapplied underlying principles for concepts like that can be.

  10. 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?”