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.