Friday, July 2, 2010
This essay joins the debate about the place of gender in the law of parentage, an issue that looms large in today’s “culture war,” including the continuing battle over same-sex marriage. As part of the conversation about contrasting conceptions first presented at a conference on What is Parenthood? and later revised for a forthcoming book with the same title (edited by Daniel Cere and Linda McClain), this essay makes the case for a legal regime based on the “diversity approach.” This approach supports recognition of a diverse range of parent-child relationships, without regard to sex or gender, in contrast to the “integrated model,” which calls for an understanding of parentage that integrates biological and other functions and aspects of parentage.
In advocating that parentage laws reflect the diversity approach, this essay makes two primary contributions. First, it challenges the constitutional validity of parentage laws that would impose an integrated model. Most proponents of this model, by one route or another, conclude that children need exactly one mother and one father - a gendered combination missing or disrupted when a child has two legal parents who are both women or both men, when a child has only one legal parent, or in the occasional case in which courts have recognized three legal parents for a given child. This essay shows how this model and its underlying normative premises rest on gender stereotypes that equality jurisprudence and family law have thoroughly repudiated.
Second, this essay questions recent arguments, both for and against laws based on the integrated model, that rely on empirical investigations of the purported effect of various familial arrangements on children. Whatever the contemporary attraction of multidisciplinary analyses, empirical data cannot resolve disputes about competing laws of parentage. In particular, empirical findings purporting to show that the normative one-mother-one-father configuration serves most children well would not justify enshrining it in parentage rules applicable to all children. Several reasons support this position. For one, across-the-board rules based on empirical evidence of an optimal parental arrangement for children in general would sacrifice the best interests of some individual children, while also contravening family law’s frequent preference for fact-specific assessments. In addition, conclusions based on such evidence not only rest on value judgments and questionable assumptions about causality but also change over time. Finally, reliance on such empirical evidence fails appropriately to take into account the power of family laws to shape the experiences of the very children and other family members in question.
The essay concludes by using some ingredients from the integrated model to begin to sketch an alternative framework based on the diversity approach. These preliminary steps in turn show why the analysis outlined in this essay makes sense as a matter of family law and promises to address children’s interests at least as well as the alternatives.