Things To Act
Friday, March 26, 2004
Children and the State
The NYTimes ran an interesting article on Wednesday. Since it requires registration, I'll shamelessly excerpt the interesting bits:

"But for gays and lesbians, the legal landscape surrounding such breakups is often uncertain or uncharted. Laws, ill fitting and varying by state, were not written to anticipate same-sex situations, and judges often take interpretative license as they struggle to navigate a rocky path.

The children are caught in the middle, and for many, the trauma and confusion of conventional divorce can be magnified. Judges have weighed in on issues like whether a former partner should pay child support, and how the children should be told of or shielded from a parent's homosexuality.

"Courts are struggling with the whole definition of what is an American family today," said John Mayoue, author of "Competing Interests in Family Law." "It's a cultural thing. There's very little law and very little regulation."


There are several reasons no legal road map exists for cases involving same-sex couples with children. Courts have been slow to address the status of children being raised by unmarried couples, straight or gay; advances in medical technologies have moved faster than the courts; and judges and legislators have had mixed reactions to the idea of gay couples as parents.


In other cases, judges have focused less on documents, many of which were not particularly tailored to same-sex couples. Those judges have relied more on the parental intent of the partners, and their relationships with the children.

According to the census, at least 600,000 same-sex couples are living together, about evenly split between men and women, but experts say such relationships are undercounted. The census also says about 60,000 female couples and 15,000 male couples live with a child, and in the vast majority, only one member of the couple has a legal relationship with the child.

Many of these children are the products of earlier heterosexual relationships, and often, courts allow a divorced man or woman who is now gay to share child custody. But not always, and courts sometimes condition custody and visitation orders on shielding the child from the homosexual relationship. In January, for instance, a Tennessee appeals court forbade an estranged husband from "exposing the child to his gay lover(s) and/or his gay lifestyle.""

While the whole thing obviously raises several interesting issues (such as the complexity of trying to graft same-sex relations onto the existing legal structure of marriage without thought of the consequences), the part I bolded seems especially striking, and seems to underscore my impression that policymakers (especially state legislatures) as well as the American electorate generally are not thinking enough about family law. Given the developments that have occurred and will continue to occur, changes are inevitable. Since my normative preference is for public policy changes to come about democratically rather than by judicial fiat or some other form of elite imposition, I think the full complexity of this issue deserves far more attention than it's been getting.

Courts have been slow to address the status of children being raised by unmarried couples, straight or gay. This seems to be a huge issue, particularly if we stipulate the social science data which appears to show significant statistical risk to children outside of a traditional two-parent environment.

advances in medical technologies have moved faster than the courts. And not thinking about it won't help. It's already possible for a mother to give birth to a genetically unrelated child who is the biological offspring of a man and a woman who never met each other or the birth mother. More complex forms of reproduction, including elaborate human genetic engineering, might soon be possible (and even if we manage to enforce a ban, other countries will likely fail to share our moral scruples, particularly when such technology has potential to prevent or alleviate human suffering).

judges and legislators have had mixed reactions to the idea of gay couples as parents. Something of an understatement. To the best of my knowledge, no reliable study has documented significant differences (or lack thereof) in outcomes between same-sex couple and opposite-sex couple parenting. Which implies that most people have personal unprovable opinions, and it will be hard to resolve the question of whose opinions are correct without experimenting to find out.

The connecting theme between all of these developments seems, to me, to be the state's role in the welfare of dependent children. Putting aside all questions of what one believes about the morality of (and morality of state regulation of) sexual relations between consenting adults, it seems that most people would concede that the state has an interest in protecting minor children, but will disagree about how far that interest goes. I can see two extremes, with most people falling somewhere in the middle.

1) Extreme Libertarian. The state has no right to regulate a parent's control of his dependent child. Thus, any sort of genetic engineering/IVF/medical experimentation is permissible if you're going to raise the kids yourself, abortion (or even infanticide) is permissible, you can teach your children whatever you want without the state meddling, you can choose what degree of medical care/nutrition/socialization is appropriate for your children, etc. If any of this bothers you, relax and realize that other people's rights are just as important as yours, and if your way is really better than your descendents will do better and rule the world someday.

2) Extreme Protection. The state has a compelling interest in protecting the defenseless child from dangerous adults. Thus, being a genetic parent gives very limited rights over a child's fundamental welfare, abortion/nontraditional reproduction methods are banned or strictly regulated, states supervise primary education, possibly correcting dangerous ideas taught by the parents, the state can intervene in parental decisions about medical care/socialization/exposure to risky or unstable situations, etc. If some of this seems harsh, recognize that it's required because the state has an affirmative duty to protect and preserve everyone's individual right to life, liberty, and happiness.

Obviously, both scenarios contain elements we're not comfortable with. This is natural, because at stake are core values, and core values often conflict with each other:

*Parents ought to control the upbringing of their children.
*The state, through Child Protective Services and equivalent agencies, ought to save children from abusive or unsafe situations.

*Parents ought to be free to both practice their religion and teach it to their children.
*The state may have a duty to save the life of a child whose parents don't want him to receive medical care.

And so on. One issue impossible to escape is that children someday grow up, and parental influence over children diminishes substantially at some point (magically and all at once at age 18, if you prefer). Hence, the state must balance the right of the parent to raise the child with the right of the future citizen to someday be free from unjust influence from the parent (which, if the child ends up dead or in majorly harmed through the negligence of the parent, is difficult to do).

I get the sense that we used to regulate these questions as much through social norms and nongovernmental censure as through formal state action (excepting those issues raised by recent technological developments). As society became less homogeneous and more morally diverse, the social norms began breaking down, but little seems to have filled the vacuum they left (which may or may not be a problem, depending on your beliefs).

Another problem stems from the fact that we don't fully trust the government, and thus may feel that some of the recommendations in #2 are nice in theory but impossible in practice--the state can't reliably determine when welfare is actually threatened enough to intervene, and is subject to takeover and abuse by factions which do not respect the original noble rationale; hence, using the state is too risky. In other words, one could support the outcomes of option 2 in principle, but assume that they're unachievable in practice and hence lean towards option 1. Hardcore libertarians opposed to coercion would disagree, of course, and ultimately the reasons for choosing one option over the other are irrelevant to the public policy outcomes. We are still left with the question:

What ought the role of the state to be in issues involving dependent children?

I suspect that a coherent public policy backed by some coherent (and even Constitutional) rationale may be necessary, though I'm not sure what it ought to be. Perhaps any coherent structure is impossible in a morally heterogeneous society. Regardless, I'm deeply troubled by the notion that children can be called into the world by individuals or couples (of any sexual persuasion) who are not fully committed to raising said children in a stable and healthy environment.

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