Virtual Mothers and the Meaning of Parenthood
Copyright (c) 2001 University of Michigan Law School
University of Michigan Journal of Law Reform
34 U. Mich. J.L. Ref. 683
LENGTH: 40663 words
ARTICLE: VIRTUAL MOTHERS AND THE MEANING OF PARENTHOOD
Annette Ruth Appell*
* Associate Professor, William S. Boyd School of Law, University of Nevada, Las
Vegas. B.A. 1982 Cornell University; J.D. 1986, Northwestern University School
of Law. I have represented hundreds of children and a few dozen parents and
relatives in child welfare and related proceedings in Chicago, Illinois,
Columbia, South Carolina, and Clark County, Nevada. These clients and their
families inspire and inform my work. I am grateful to Mary Becker, Jean Bohner,
Susan Brooks, Naomi Cahn, Marty Guggenheim, Lynne Henderson, Joan Howarth, Pam
Mohr, Cheryl Tadin, Carl Tobias and Matthew Wright for their helpful comments
on earlier drafts, Jennifer Durcan and Kelly Horne for their research
assistance, and the James E. Rogers Faculty Enrichment Fund for research
... They include critical theories that identify as socially constructed what
once seemed natural, recognition that family structures are variable and
changeable, increasingly sophisticated reproductive technologies, unsatisfied
demand for adoption, greater rights for women, and reaction to the
constitutionalization of parental rights doctrine. ... The preceding
explanation of the doctrinal content and philosophical grounding of the
parental rights doctrine frames the following rehearsal of parental rights
critiques. This framework should help assess whether the critiques
fundamentally conflict with parental rights doctrine and whether alternate
visions of family privacy honor the basic theory underlying our political
structure. ... It diminishes parental authority and family privacy, under the
parental rights doctrine, by presuming there is some universal correct answer
about children's interests and that the state does or should have the wisdom
and authority to make those determinations. ... However, their suggestion that
the parental rights doctrine or family privacy is anachronistic may not comport
with the experiences of the thousands of families who are deprived of the
recognition and protection the doctrine affords. ... Because the model bases
intervention on the child's needs and not on parental consent, it effectively
grants (certain) care-giving adults the (parental) right to decide, and then to
convince a judge, what the children's interests are. ...
Professor Appell supports the use of the traditional parental rights doctrine,
which accords biological parents, particularly mothers, parental status
alienable only voluntarily or upon proof of unfitness. She defends the doctrine
against the criticisms that it is regressive and does not protect the interests
of children or de facto parents. She contends that the attacks on traditional
parental rights doctrine are misguided because they work to the disadvantage of
families who do not easily fit the dominant norm - minority, single-mother,
lower income, or politically and legally under-represented families. After
examining the constitutional underpinnings and application of the parental
rights doctrine as well as proposals to change it, she concludes that the
doctrine provides more concrete standards than any alternative and serves to
protect those families most vulnerable to intervention or dissolution.
"What she called the nastiness of life was the shock she received upon learning
that nobody stopped playing checkers just because the pieces included her
This Article is a cautionary tale. It presents a progressive response to a
series of progressive and not so progressive critiques of the constitutional
doctrine that supports parental rights. The critiques range across a broad and
complex spectrum. They include critical theories that identify as socially
constructed what once seemed natural, recognition that family structures are
variable and changeable, increasingly sophisticated reproductive technologies,
unsatisfied demand for adoption, greater rights for women, and reaction to the
constitutionalization of parental rights doctrine. The critiques denigrate the
three core, interrelated aspects of parental rights - that biological
[*684] privileged, that parents determine their children's interests, and that
families are private. Many child advocates, feminists and alternative family
proponents, however, criticize those protections as harmful to adults and
children, regressively patriarchal, heterosexist, and unduly dismissive of
alternative methods of forming families.
These diverse and critical views about the current legal construction of
families are not surprising, given the wide array of family forms. Dominant
societal norms perceive and value a nuclear family model in which an adult
married heterosexual couple bears, raises and supports their children without
governmental cash assistance.
n2 Yet these families constitute a minority of households.
n3 Adults and children live together through diverse arrangements, such as
adoption, kinship care, foster care, reproductive technology, parental
separation, and formation of new intimate relationships.
n4 These families may have multiple kinds of parents. One kind is birth parents,
those who conceived and gave birth to the child. The other is virtual parents,
persons who are not necessarily biologically related to the child, but whom the
child and the
"parent" may view as a parent. This group of
"parents" includes step-parents, co-parents, second parents, foster parents,
grandparents, and prospective adoptive parents. Many virtual parents and their
proponents view traditional parental rights law as a barrier to the protection
of affectional relationships and have advocated new definitions of the families
and corresponding state protections for them.
In addition, continued struggles to afford financial and legal protections for
women who rear children and who battle domestic violence and subordination seem
to demand public attention and accountability, not deference to families.
Commentators, activists, and policy-makers challenge the value of family
privacy that helps immunize families from public scrutiny and intervention,
shields private acts of violence, and fails to mediate power imbalances among
family members. These critics contend that family privacy reinforces oppressive
gender norms that place women in the home and in the role of mother. Family
privacy also limits a woman's
[*685] attempts to define her own life and obtain adequate support for her child
rearing and other roles. This privacy allegedly harms everyone because it
confines familial values of connection and care-giving to women and the home,
rather than expanding the operation of these values to the public sphere where
they are most needed to temper individualism. Commentators argue that families
and feminine values should be more public and the public should be more
responsible for supporting families.
These perspectives raise important concerns, but in their haste to dismantle
parental rights doctrine, critics ignore the virtues. The doctrine provides
fairly determinate rules for establishing and maintaining families. It presents
a model for parenthood that privileges and protects biological mother-work and
those associated with this work. The current model holds that mothers earn
parental status by gestating and birthing while fathers earn parental status by
caring for the born child or marrying the mother. Persons who earn this status
retain it, until they voluntarily relinquish the status or prove to be unfit.
Parental status entitles its holders, rather than any other adult or entity, to
make decisions for and about their children. Parental rights doctrine prohibits
other persons and the state from usurping the parental decisionmaking role
because they are, or claim to be, superior parents.
Regardless of how cogent the family critiques may be, many ultimately devolve
into adult disputes about what is best for children and how families should
function. The critiques proffer more subjective, less determinate rules for
intervening in, or defining, the family. These rules would disadvantage poor
and minority families who receive greater public surveillance and less respect
as competent, functioning families. Critics ignore the self-referential nature
of assigning value to families who resemble one's own family, but not families
who are different. Moreover, persons who possess the power to assign family
value typically have financial, political, or legal power.
n5 These same people generally have, or come from, families who satisfy dominant
norms (White, marital and economically privileged),
n6 so their families both
[*686] produce value and are valued. From this position of dominance, commentators
and decisionmakers can easily take privacy for granted and advocate
"other" families. These tendencies to devalue what is different make the critiques
particularly troubling because the legally-protected biological nexus may be
the only shield available to families who do not meet dominant norms.
The biologically-based legal construction of parenthood is actually a
progressive tool for protecting the integrity of those families who do not
easily fit dominant norms of family. This doctrine can facilitate the interests
of children and the adults who care for them. Current constitutional
protections of biologically-based families are important safeguards for women
and children who are at risk of losing their status as family.
n7 Parental rights doctrine privileges and privatizes the parent-child
relationship, thus offering relatively determinate and objective standards for
creation and dissolution of families. The doctrine protects families who are
most vulnerable to intervention or dissolution.
This deference is integral to the private production of values that constitutes
a philosophical lynchpin of our constitutional scheme. The system, however,
also values private property and promotes individualized self-interest in a way
that often correlates the degree of privacy one enjoys directly with the amount
of property one has and how well one conforms to dominant parental norms. Thus,
dismantling family privacy while leaving in place the larger political scheme
that permits autonomy-limiting income and power disparities will effectively
target poor and non-dominant families who already must struggle to maintain
For all of these reasons, parental rights doctrine and its critiques warrant
analysis. This Article undertakes that effort. Part I first analyzes the
constitutional doctrine that defines and protects families, locating its
theoretical base and assessing theories about the efficacy of parental rights
doctrine. That doctrine, premised on basic
[*687] principles of our constitutional system of government, defines parent with
reference to biological maternity. It grants parental status to persons who
have earned that status through child-bearing or a nurturing relationship to
the child-bearer or one's biological child. The doctrine concomitantly protects
that status by deferring to parental governance of children.
Part II assesses major proposals to revise, directly and indirectly, the
current biologically-based definition and protection of families. These family
revision perspectives find that parental rights doctrine confines and harms
women and children while presuming that parental rights doctrine is overrated
and anachronistic. The revisionist accounts would wholly or partly replace the
doctrine with a construction of parenthood based on affectional or
state-sponsored, rather than biological, norms. The accounts would also reduce
the privacy afforded family life, so that outsiders could more easily enter to
reform or support families and so maternal values could transfer to larger
Part III examines the assumptions and repercussions of those critiques. It
finds that the proposed alternative family standards frequently devolve into
differences of opinion about what is best for particular children. These
disputes do not provide principled reasons to depart from current law
privileging parental assessment of what is best for children, absent parental
unfitness or consent. This section shows that the critics may not fully
appreciate how little privacy many families now enjoy and that the proposed
alternative standards would further reduce, or disproportionately affect, the
privacy of these more public families. Although parental rights doctrine is not
perfect, it does protect people who otherwise enjoy little privacy. Many of the
critiques do not afford such protection.
I. Legal Construction of Families
Defining and regulating families is principally, though not exclusively, a
state, rather than federal, prerogative.
n8 State laws
[*688] govern family issues, but the U.S. Constitution provides parameters that limit
the states' ability to define and regulate family rights and obligations. The
U.S. Constitution does not expressly refer to families. The United States
Supreme Court, however, has interpreted the document to protect the integrity
of certain families - mostly those related through biology or marriage.
n9 The Court has protected families on a number of doctrinal grounds, including
substantive and procedural due process, equal protection, and freedom of
n10 Regardless of the precise constitutional source, the Court's decisions hold
that the family relationship is so fundamental that government intervention
must be circumscribed.
n11 This limited intervention into family relationships (generally parent-child
relationships) can be characterized as
"Parental rights doctrine" refers
[*689] to the fuller doctrine that defines parents and limits intervention into the
The historical context,
n13 doctrinal development or even doctrinal coherence of this constitutional
protection are not of concern here.
n14 Instead, the analytic coherence of privileging family relationships within
both the context of liberal philosophy
n15 and the repercussions for mothers and children of abandoning this privilege is
assessed. Moreover, the present examination of the
[*690] privileged family concerns the parent-child relationship, rather than intimate
unions between adults. These adult unions are addressed insofar as they relate
to, or contrast with, parent-child relationships.
To explore parenthood's meaning and privileges, this part of the Article
addresses four issues. First, it reviews what a parent is - how the
parent-child relationship is defined. Second, it considers the privileges that
flow from this definition and attach to that relationship, and who exercises
those privileges. Third, it examines the limits of these privileges and when
the state can interfere with or reform the parent-child relationship. Fourth,
it explores why this relationship receives special constitutional protection.
These four aspects of parenthood specifically reveal that parental rights
doctrine presents a unique form of privacy, that motherhood is the dominant
theme of parenthood, and that the definition and protection of the parent-child
relationship is deeply rooted in constitutional theory.
A. Defining Parents
The notion of families during the formative periods of the United States
Constitution, the Bill of Rights and the Thirteenth and Fourteenth Amendments,
contemplated a patriarchal household in which the father presided over and
controlled his wife and their children.
n16 The Supreme Court, in a series of cases defining parental rights to custody
and control of children, continues to define families along these traditional
lines, primarily recognizing families created through birth and marriage. This
doctrine's development, however, in the context of parent-child relationships,
has defined the family in matrifocal terms. That is, parenthood, as protected
by the Constitution, is understood in relation to the
[*691] mother and incorporates the two female maternal aspects of childbearing:
genetic contribution and nurturing.
The Court's jurisprudence presents childbearing as the parental paradigm and
the mother as the anchor. It does so in three ways. First, the Supreme Court
presumes that the woman who gave birth ("biological" mother)
n17 is a parent, regardless of marriage or any proof that she has cared for her
child after birth or made legal declarations of parenthood. A woman establishes
parenthood by carrying the fetus to term.
n18 Although the Court has yet to review competing claims of women to the same
child, it has not placed even long-term foster mothers on par with biological
n19 Yet the Court took the extraordinary step of extending procedural due process
protections to a mother whom a trial court judged to be unfit.
n20 The Court held that the mother's legal relationship to her children was so
fundamental that the state must waive costs of her appeal even when the action
was brought by a private party, her ex-husband.
Second, constitutional family privacy doctrine defines the non-maternal parent,
"father," in relation to the mother. A father is someone who has either (a) acted like a
mother by contributing a gamete and nurturing the child ("biological" or
[*692] (b) been married to the mother at the time of conception ("legal" father).
n23 For example, the Court held that the man in Stanley v. Illinois who was not
married to the children's mother but who had cared for, and lived with, the
children for most of eighteen years, was a father and, therefore, entitled to a
hearing before the state could remove the children from his care.
n24 Similarly, in Caban v. Mohammed, the biological father lived with the mother
during conception, after conception and during the birth of his children and
then continued to visit them after their mother remarried. The Court held that
the biological father had a relationship with his children
"fully comparable to that of the mother" and could not be deprived of that relationship without a hearing or his
In contrast, the Court refused to grant parental status to biological fathers
who have merely contributed a gamete, but have not provided significant care
for the child or wed the mother. In Quilloin v. Walcott, the Court held that an
unwed biological father, who never lived with the mother or the child, and
provided only sporadic support, and never legally claimed the child as his had
no parental rights. He was, therefore, powerless to stop his eleven-year-old
child's adoption by the mother's husband.
n26 Similarly, in Lehr v. Robertson, the Court held that a biological father who
lived with the mother prior to the child's birth, visited her in the hospital
when the child was born, but who did not live with or support the mother or
child after birth, had no parental right to bar the mother's new husband from
adopting the child.
n27 Instead, the biological relationship merely
"offers the natural father an opportunity that no other male possesses to
develop a relationship with his offspring... . If he fails to do so, the
Federal Constitution will not automatically compel a State to listen to his
[*693] where the child's best interests lie."
n28 Nevertheless, it is possible that this unique, inchoate opportunity will not
override the rights of the man married to the mother.
n29 In Michael H. v. Gerald D., a plurality of the Court held that the man who was
married to the mother at the time of conception and birth has a superior
paternal claim to that of the biological father despite the fact that he had
maintained a relationship with the child, that included living with her and her
mother for short periods of time.
n30 A majority of the Court, however, would have recognized at least a right of
the biological father to visit the child.
Third, parent-child-like relationships that are based only on nurture, not
biology and nurture (including a nurturing relationship to the biological
mother), are insufficient to establish legal parenthood over the claims of fit,
legal parents who have not agreed, i.e., legally consented, to the formation of
n32 For example, the Court has recognized that deep and enduring parent-child-like
relationships may arise with no biological connections, but it has not given
those relationships the same status as birth relations.
n33 Indeed, the Court held in Santosky v. Kramer, that the state has no interest
in reforming families, until or unless the biological parents have been proven
n34 The Court's reluctance to grant certiorari to adoptive parents whose adoptions
[*694] judges have overturned or denied, while ordering the children returned to
their biological parents,
n35 strongly suggests that the Court does not recognize as parents persons who
have no biological relationship to the child, unless the would-be parent has a
relationship to the biological parent, like the non-biological father in
Thus, the constitutional definition of parent differentiates between women as
mothers and men as fathers. So far, the Court treats the mother's biological
connection (gestational and genetic) differently than the father's biological
(genetic) connection; the latter is not sufficient or even necessary to create
a legal parent.
n37 Parenthood, as a constitutional matter, can be lost for failure to earn it by
caring for the child
n38 or legally claiming the child
n39 or it can be usurped by a person who shows affection for the mother by
n40 Parenthood to date requires a biological connection between the mother and
child; a nurturing connection between the prospective other parent and the
mother; or a nurturing and genetic connection to the child.
[*695] The Supreme Court's line of cases that resolves whether the law should treat
non-marital parent-child relationships the same as parent-child relationships
arising out of marriage also reflects this matrifocal definition of parent. The
Court has implicitly defined parent and child when determining whether these
non-marital families can receive benefits available to marital families.
n42 Like the paternal rights cases discussed above, the non-marital child cases
rarely raise questions about mother-child relationships. Indeed, the only cases
addressing the benefits which flow from the mother-child relationship held that
these benefits should not depend upon whether the mother was married.
n43 Her status as mother (i.e., genetic and gestational) is presumably sufficient
to create a legally recognizable parent-child relationship so that she could
sue for the wrongful death of her children and her children could sue for hers.
n44 A father, however, must be more than the genetic parent, unless he dies before
the child is born.
n45 If he has not married the mother, the state may deny a father parental status
if he does not establish legal paternity
n46 or the children are not actually
[*696] dependent on him.
n47 Fathers in the non-marital children cases, as in the parental rights cases,
are men who either were married to the mother or were genetic contributors and
proved their parenthood by a court order or by supporting the mother or
children. A mother is a mother by virtue of giving birth.
The Court's view of parenthood shows that parenthood is biologically-based,
although it must be earned. Mothers earn it through the nurturing biological
acts of gestation and birth.
"Fathers" earn it in one of two ways. Men who are biologically (genetically) related to
the child earn the status by caring for the child after birth. Both non-genetic
and genetic fathers may earn parental status by making a commitment to the
child's mother, generally by marrying her. Although a person may become a
father through marriage, marriage is not essential to maternity or to
biological paternity. The acts of gestation and birth instead form the anchor
and paradigm for parenthood. Persons must relate to the child like a mother,
through biological connection and nurturing, or must relate to the mother
through commitment and caring.
B. Nature of Parental Rights
A significant, if obvious, aspect of the matrifocal definition of parent
relationships is that care-giving (rather than solely genetic connection) is a
necessary component to each of these relationships: mother-child, father-child,
or father-mother-child. The relationship to a child is an integral aspect of
the creation of the status (parent) and the contour of the right (parental).
n48 involve decisionmaking by parents that necessarily include
[*697] or affect children.
n49 That is, categorizing someone as a parent presumptively ties his or her
interests to the child's.
n50 This means that parents' decisions about, or affecting, their child are both
presumptively cognizant of the child's needs and in the child's
"best" interests. Once parenthood is established, it is by definition earned and
cannot be terminated without substantial process.
n51 This right belongs to the parent and applies only to decisions regarding,
affecting, or relating to the child.
In this way, these parental rights are not individual rights, but rights that
arise out of these relationships and apply to decisions for or about others.
n52 They are distinct from other decisional
[*698] privacy rights that involve decisionmaking for oneself.
n53 Nevertheless, commentators often view parental rights as individual rights,
thereby either equating parental rights with property rights
n54 or associating parental rights with other personal rights arising out of
n55 In fact, early constitutional family jurisprudence applied decisional privacy
to the married-parent child-rearing entity, and not to individuals outside the
n56 Relying on this early jurisprudence, the Court has subsequently extended the
private realm to include heterosexual individuals' decisions about birth
n58 and marriage,
n59 regardless of whether they occur in the context of individual, coupled or
marital decision-making. Thus, although such privacy rights began in
traditional family contexts, the Court has extended them to protect individual
decisions about certain intimate heterosexual matters.
n60 Their common origin, however, does not mean all decisional privacy is the same.
[*699] Instead, parental rights and other rights involving intimate adult decisions,
like procreation, or adult relationships, such as marriage, address two
different sides of privacy.
n61 Despite their common origin, parental rights are by definition relational
while adult decisions and relationships are individual.
n62 This distinction is important because of the developmental differences between
adults and children that distinguish parent-child relationships from
adult-adult relationships. The former involve dependent relationships
n63 while the latter may be interdependent, but generally involve relationships
between competent adults.
n64 Adults in these latter relationships may make certain decisions that will
financially or legally bind their partners, but such power does not extend to
[*700] intimate decisions like divorce or whether to bear a child.
n65 Similarly, although certain decisions made about or within adult relationships
are protected from governmental intervention, these relationships do not
consider individual autonomy. Treating all decisional rights as relational
would encumber adult decision-making, particularly in childbearing and marriage.
n66 Indeed, failure to distinguish between adults (i.e., women) and children
supported some of the most outrageous and negative aspects of family privacy
doctrine. The decisions held that wives' identity merged into their husbands'
identity and had no legal status of their own.
n67 The parallels between a husband's complete power over both his wife and his
children are striking.
n68 However, the difference between combining a husband and a wife's interests
(marital unity) and parents and children's interests (parental rights) is that
adult women can generally identify, articulate, and frequently affect their own
interests, whereas children cannot through much of their childhood.
[*701] Conversely, treating parents and children as holders of individual rights
within the family obscures the different capacities of adults and children.
That is, most adults have the cognitive and experiential ability to make
informed, forward-looking decisions. Children, however, depending on their
chronological age and developmental stage, have limited cognitive abilities.
Most children remain unable to appreciate the full and future meaning of their
choices and actions, even as their cognitive abilities approach those of adults.
n70 Moreover, most adults can implement their own decisions - to go somewhere or
do something else - although many are constrained by poverty, emotional ties,
dependence, or obligation.
n71 In contrast, young, but even unemancipated older, children are often
financially, physically, and legally dependent on adults.
n72 Treating all children, rather than mature children, as independent rights
holders vis a vis their parents, presumes a level of autonomy, independence and
competence that simply does not apply to all children.
n73 Assigning such autonomy-based rights to children who are unable to make their
own decisions merely empowers an adult to make decisions for the child.
n74 Parental rights
[*702] doctrine bestows the right to make these decisions on adults who have shown a
prescribed level of commitment to the child (or to the child's mother). In this
way parental rights are earned, unlike other decisional privacy rights, that
inure automatically to (adult) persons.
Although parental rights are relational - in the sense that they protect
decisions made by parents for their children - they are not mutual. Children do
not share corresponding decisionmaking rights.
n75 That is, children's decisions about their own parents or family status do not
clearly have constitutional protection,
n76 but children do have some individual constitutional rights that could
interfere with parental control over them. Children have certain procedural
protections against punitive state intervention.
n77 For example, in juvenile delinquency proceedings, children have a right to
their own attorney, who is ethically bound to represent the child's interests,
not those of the parents.
n78 Children also have limited rights to reproductive freedom.
n79 For example, when a teenage girl becomes pregnant and seeks an abortion, her
rights may override her parent's parental rights, should they disagree about
the outcome of the pregnancy.
n80 Yet, she may have no right to make
[*703] other medical decisions
n81 or decide whether she would rather have other parents.
n82 It is sufficient for purposes of this Article that children may attain rights
independent from, and in conflict with, their parents' parental rights at some
point, as children become more like adults (i.e., more mature).
n83 These rights may limit parental rights, though in a different way than third
party or state intervention limits parental rights.
C. Extent of Parental Rights
n84 has a constitutional right to direct his/her child's care and upbringing,
absent proof that the parent is abusing or neglecting the child
n85 or has failed to establish legal parenthood.
n86 Parental rights doctrine protects parental decisions by presuming that
parental choices regarding or affecting children are sound.
n87 The government may adopt general laws and policy relating to child-rearing,
such as education of children, child labor prohibitions, and
[*704] establishment of minimum parenting standards.
n88 The constitutional liberty interest, however, in the parent-child relationship
cabins the state's ability to legislate regarding child welfare and child
n89 Thus, the state
n90 can coercively intervene in, or interfere with, family governance in order to
protect the child, i.e., if the parents have fallen below minimum parenting
n91 The state, however, cannot intervene merely because it has a difference of
opinion with the parent about what is best for the child.
n92 This means that the state may not take children away from parents or diminish
parental autonomy without adequate cause and process or, of course, parental
n93 Moreover, the state cannot sanction another parent-child relationship through
adoption, without proper proof and process.
n94 In these ways, families are private: parents have primary control over
child-rearing, and the state may not usurp that control, unless there is
sufficient cause and process or the parents consent to ceding control.
The Court has been divided and cautious about extending its decisional privacy
n95 It, however, has been relatively united in upholding the sanctity of the
parent-child relationship, as illustrated most recently in Troxel,
n96 a case that raised the question of whether a court could substitute its
judgment for the mother's regarding whether third party visitation was in the
best interests of the children and if so how much. Two things are particularly
noteworthy about the decision. First, at least eight justices affirmed that
[*705] the Constitution protects the parent-child relationship from undue
governmental interference, although a majority of the justices could not agree
on a rationale for the decision.
n97 Second, these eight justices affirmed the line of privacy doctrine cases that
originated in the oft-denigrated Lochner era
n98 as establishing the primacy of parent-child relationships,
n99 even though the justices and constitutional law scholars have long questioned
the validity and modernity of these early cases.
n100 Thus, the Troxel Court did not definitively identify what a family is or when
the state can intervene. It did affirm that state action relating to the
parent-child relationship has constitutional limitations, in an era of
decisions which have diminished the rights of the federal government to curtail
D. Philosophical Underpinning of Parental Rights Doctrine
The Court's family doctrine seems to have developed as an extension of
political and personal autonomy principles on which the United States
government was founded
n102 as well as from common law family doctrine that treated families as entities
into which the state could not intrude.
n103 The origin and basis for these decisional privacy rights, derived from, but
not enumerated in, the
[*706] Constitution, have been the subject of much legal theorizing.
n104 The focus here is on decisional privacy doctrine's foundation in a political
and moral philosophy that values individual autonomy and informs the
theoretical basis for the United States' structure of government.
n105 The purpose of government is to maintain the political (if not material)
conditions for people to determine the course of their own lives, through
elected representative rule guided by reason and limited by respect for
individual liberty to determine one's own morality or sources of meaning.
n106 The state,
[*707] as a result, has a limited ability to interfere with individual autonomy.
n107 This autonomy is important in itself, but it is also significant because it
promotes a dynamic democracy that relies on autonomous citizens to govern.
How families fit into this model of individual liberty
n109 is a matter of interpretation based on different theories of the role of
families vis a vis individuals and the state. One set of theories derives
family autonomy from the family's public functions ("public family"), while the other set derives from individual autonomy ("autonomous family"). These theories explain or justify the family's protection from coercive
state intervention based on competing views of the good life. Both sets of
theories also support parental rights doctrine.
The public family theories hold that families are protected from undue
governmental intervention because the family fulfills two important, related
public functions: caring and nurturing the young and preparing them for
autonomous adulthood and citizenship in a pluralistic democracy.
n111 Families are uniquely suited to
[*708] perform these functions by caring for children in a communal context of
self-sacrifice and duty, and raising them in diverse settings.
n112 Children then mature into adults who possess pluralistic values and the
ability to think critically because of their allegiance to family and community.
n113 This rearing function enriches the government by creating citizens separate
enough from the state to be capable of exercising the power to govern.
n114 In contrast, institutionalized or uniform child rearing values would
presumably create citizens who would not question the state and who would not
provide the diversity of opinions and values that can serve as a check on
The autonomous family theories also relate family autonomy to individual adult
autonomy, but these theories are based on individual autonomy as an end in
itself, as opposed to a means to democratic governance. These autonomy theories
hold that decisions regarding family relationships and issues are protected
because families are intimate associations created and controlled by autonomous
n116 The family is fundamentally important because it is
"an aspect of human self-definition and moral
n117 Families in turn support self-definition and moral autonomy by providing an
environment free from state control of socialization and value production.
n118 Because these family associations are so intimate and fundamental to adult
life, the state should have exceedingly good reasons to interfere. Once it
does, the state must provide substantial process to protect choices about
n119 Whether this intimacy is an end in itself
n120 or a means through which people produce or exercise moral value,
n121 the essence of the family autonomy theory is that family relationships are the
ultimate exercise of positive freedom to form and protect intimate associations.
Each set of theories supports, at least in part, the parental rights doctrine.
Under the public family theory, it is the parent's role to raise and nurture
children to become mature adults who are able to exercise political choice. The
sine qua non of the public family theory is that children are both dependent
and malleable. Therefore, they are in need of protection and formation.
Parents, rather than the state, have responsibility in the first instance to
care for and socialize children, with the goal of producing independent adults
who are able to care for themselves and be productive citizens. Although the
family fulfills a public function, this role requires a measure of independence
from the state. Thus, parental rights doctrine curbs the homogenizing effect of
the state by insuring that the state does not unduly interfere with parental
decisions and does not entirely usurp the family's socializing role.
The public family theory does not, however, explain why families should be
defined in the first instance around biological relationships.
[*710] Any nondiscretionary and nondiscriminatory
n124 general rule that assigns parenthood to private citizens and minimizes state
discretion in placing individual children would presumably promote the goals
behind public family theories.
n125 For example, a rule defining parents as those adults who were born on the same
day as the child and live in the nearest proximity would limit state
discrimination and discretion (although it may be difficult to administer). One
can imagine a slightly more discretionary and potentially discriminatory rule
that would require all persons interested in becoming parents to take a course
or pass a test regarding child rearing or development.
n126 These potential parents would then place their names on a waiting list;
children could be assigned based on a lottery or bestowed upon the next person
on list. An even more discretionary and potentially discriminatory rule would
be for the state to determine who would be the best providers of care for the
child, perhaps through psychological and intelligence testing, financial means
guidelines, any history of caring for the particular child, and then place
Defining parents based on their biological relationship to the child seems the
most definitive rule because it is perhaps the clearest, simplest standard that
also minimizes the state's role in making individualized decisions about who
constitutes a family. It also promotes diversity by minimizing discriminatory
choice that could result in homogenization.
n127 When the state establishes less determinate rules, such as the best
care-giver, it invites injection of contingent standards that exclude or
include persons in the cate-
[*711] gory of
"parent" based on value-laden judgments about what types of child rearing and parent
are most important for children.
n128 The interpersonal aspect of the current definition of father (nurturing
relationship to the child or mother) is more problematic than the maternal
definition because competing claims to fatherhood may arise under the less
determinate standard that will be more difficult to resolve. These claims
require the state to exercise its own homogenizing values when making specific
decisions about whether a parent is sufficiently nurturing or which person has
a stronger relationship to the child.
n129 The existing rule, however, minimizes both state discrimination in defining
parent and state discretion in applying the definition, while limiting the
state's role in administering the rule for distributing children.
The family autonomy theory also supports parental rights doctrine. Because the
theory is based on protection of decisions about intimate matters, such as
whether to bear children, the theory offers tighter analytic support for the
deference to biologically-based definitions of parent. The principle that
choosing to conceive and raise a child is an expression of individual autonomy
supports defining and protecting parenthood by linking biological and chosen
interpersonal connections. Insofar as family autonomy promotes individual
autonomy by creating a private zone of value production, those who are able to
exercise autonomy within that context - i.e., adults - should be free to do so,
absent just cause for state interference.
n130 In this way, families are expressions of adult self-definition and
associational choice so state intervention should be minimal.
The thornier problem for family autonomy theory is how to account for the
parent as the rights-holder: adults are the decision-makers and children are
not. Legally-sanctioned control over another individual seems at odds with
notions of individual autonomy theories that support family autonomy theories.
[*712] autonomy would make each family member a parent - a decision-maker.
n132 It may not make sense to think of children as having individual autonomy,
particularly in light of their developmental limitations.
n133 Indeed, to the extent that the autonomous family theorists view families as
fora to inculcate values and create meaning, part of that freedom relates to
the act of rearing - molding and socializing - children.
n134 Once children reach a level of maturity that enables them to engage in
adult-like behavior and share in adult-like obligations and responsibilities,
they may begin to share in some of the autonomy adults enjoy. The more like
adults children become, they are less like children. As a result parents enjoy
In any event, children who are incapable of acting autonomously require adult
assistance in making or carrying out decisions. This is generally the parents'
role, though frequently supplemented by actual and fictive kin networks.
n136 If the parents
[*713] do not exercise the authority to make or assist the child in making the
child's decisions, the question becomes who. If a judge or another adult
substitutes for the parents, the child is not less restricted, just subject to
someone else's decision-making about what is best for the child or what the
child actually wants.
n137 There is, however, no clear or universal standard for deciding what is best
n138 Moreover, the government has not proven adept at filling the parental role.
n139 Thus, autonomous family theories hold that families, not the state, are the
primary source of value production. Therefore, parents or their designees
should be the decision-makers for non-mature children.
Both theories lead to the same result: that raising children is a private
matter. It is the parents' role to decide what the good life is - how and with
whom the child should live. Unless the parents are unfit to make those
decisions or have consented to have others make or share in making them, the
state may not second-guess those decisions or sanction the decision-making
power of others. Constitutional design and theory do not support the state's
exercise of such power.
* * *
The preceding explanation of the doctrinal content and philosophical grounding
of the parental rights doctrine frames the following rehearsal of parental
rights critiques. This framework
[*714] should help assess whether the critiques fundamentally conflict with parental
rights doctrine and whether alternate visions of family privacy honor the basic
theory underlying our political structure. This introduction accepts this
framework at face value, and does not explore the philosophical (moral,
metaphysical and epistemological) underpinnings of the political philosophy
that provides a foundation for our constitutional structure or provide support
for parental rights doctrine in empirical, sociological, psychological, or
biological research. The goal instead is to establish the basic principles of
parental rights doctrine.
First, the doctrine defines parent matrifocally - where the mother is the
paradigmatic parent. She embodies both biological and care-giving aspects of
parenthood through the work of bearing and birthing. Second, neither genetic
connection nor nurturing in themselves are sufficient to establish parenthood,
but must exist in combination in relation to the child or to the
"mother" (the parent who contains both biological and nurturing relationship to the
child). Third, parents, not the state, make decisions about their children's
interests when the children themselves cannot physically, developmentally or
economically, make their own decisions. Fourth, parents can lose their status
if the parents choose or if they severely abuse or neglect their children.
Finally, the privacy of the parent-child unit is valuable both because it
serves the political function of rearing children to meet their basic needs and
to be citizens, morally independent from the state which they will eventually
govern and because child rearing is an exercise of individual autonomy.
II. Reconstructing Families and Revising Boundaries
This model of family privacy that privileges biological relationships and
parental assessments about what is in their children's interests receives much
criticism from a variety of perspectives. One or both of two phenomena seem to
motivate those critiques that specifically address parental rights doctrine:
(1) the subordinating rhetoric and practices attendant to notions of parents as
supreme rights holders over their children; and (2) the apparent dissonance
between the privilege afforded nuclear families and the structure of so many
other families that are headed by different types of parents. These other
families include single mothers, lesbian or gay co-parents, grandparents,
extended kin networks, and substitute care-givers. To these critics, parental
rights doctrine is out of touch with and a barrier to the protection of the
[*715] and affectional connections of the adults and children in these non-nuclear
families. Prominent examples of this seeming dissonance are when persons
without legal parental status, such as prospective adoptive parents, foster
parents, or co-parents, develop parent-like relationships with children that
the legal parents subsequently and lawfully terminate. Parental rights critics
would revise family law to protect such significant, affectional relationships
over the objection of the birth parents.
Other critics who do not specifically address parental rights doctrine focus
more broadly on aspects of decisional privacy that relegate families to a
private world apart from civil and market society. This division places women
(whom dominant culture equates with mothers) and children in the private world
of family. Such an assignment limits their options, shields abusive husbands
and fathers from public sanction, excuses the public from financial
accountability to children and other dependents and their care-givers, and
relegates valuable care-giving norms to women and families. These critics would
place families and motherhood in the public where they would be supported,
valued, emulated, and, most importantly, de-gendered.
Three common themes characterize all of these critiques and the models they
propose. First, they minimize biology in defining parent-child relationships
and privilege actual or prospective affectional or care-giving relationships.
Second, they essentially advocate reduced family privacy, by allowing third
parties or the state to play a parental or supervisory role in determining what
is in the child's interests. Third, like parental rights doctrine, the
critiques implicitly or explicitly are adult-oriented, even those that purport
to be child-centered. Indeed, the models frequently hold homogenized views of
children and their needs, without regard to age, race, culture or gender.
The critiques vary in the depth of challenge to parental rights doctrine and in
the alternatives they propose. These revisionist critiques can be placed into
four categories based on the values they promote. First is the public children
perspective that views children as belonging to the public and parents as
fiduciaries whose role is to promote and protect the children's interests.
Second is the psychological parenting perspective that values and protects
psychological relationships between children and the adults who are not their
legal or biological parents. Third are the adult choice critiques that seek to
accommodate the changing roles of sex and gender in defining and creating
families. Fourth are feminist perspectives that claim the connections between
[*716] women and motherhood and between families and privacy are harmful to women,
men, mothers, fathers, children and society.
A. Public Children Perspective: The Fiduciary Model
To some legal commentators, parental rights doctrine is troubling because it
leaves the important and potentially exploitive task of child-rearing to
parents, who have wide discretion in raising their children. This discretion
allows parents to elevate their interests above their children, particularly in
the contexts of religious training and the dissolution of families.
n141 These commentators criticize the adult-orientation and individualism of
parental rights rhetoric.
n142 They propose a fiduciary model for parent-child relationships that treats
children's interests as the principal and casts the parents as fiduciaries who
serve those interests.
n143 Under that model, the state fills the role of identifier and promoter of
children's current and future interests, rather than the protector of children.
n144 The purpose of the fiduciary model is both rhetorical and directive. It seeks
to humanize children by making them distinct from their parents and part of the
n145 The model also seeks to provide a decisional standard for parents, judges and
legislators to insure that they each act in ways that are cognizant and
protective of children's interests.
Under the fiduciary model, parents would not have the right to direct their
children's upbringing, but would instead be stewards for their children, acting
in their present and future interests
n147 or according to their presumed desires.
n148 Although proponents of the fiduciary model generally presume that children
should remain with their families of origin (usually their birth parents),
n149 parents, under this model, would lose their status or authority by
self-dealing - placing their own interests above their children's.
n150 Rather than deferring to parental decisions about children, the fiduciary
model frees judges to assess whether parental decisions reflect their
children's interests, presumably by reference to public standards defining and
ranking children's interests.
n151 The model would expand current legislative authority to protect children's
[*718] physical health and development to preclude parents from interfering with
children's present happiness and future interests.
Although the model's proponents are more or less deferential to parental
determinations of the child's interests,
n153 the model diminishes parental authority and remains adult-oriented. It
diminishes parental authority and family privacy, under the parental rights
doctrine, by presuming there is some universal correct answer about children's
interests and that the state does or should have the wisdom and authority to
make those determinations.
n154 Parental rights doctrine holds that such wisdom and authority are within the
parent's province, in part because the state should be relatively neutral about
competing family values as long as they do not promote abuse or neglect. The
fiduciary model remains adult-oriented, merely substituting the state as
all-knowing super-parent able to discern what children's interests are and to
discern when parents are acting contrary to their child's interests.
n155 This model does not empower, particularize or free children to decide any more
than the parental rights doctrine.
B. Psychological Parent Perspective
The psychological parent view favors relationships children form with their
n156 This perspective holds that day-to-day care-giving, not biological
connections, should define parenthood. Although in many, if not in most
instances, the biological parents will be the psychological parents. The theory
holds that (biological) parental rights should not prevail over psychological
parental rights, as it is in every child's best interests to remain with his or
her psychological parent.
n157 Because psychological attachments predominate in assessing children's
interests, biological connections may be subordinated to psychological
n158 Psychological parent advocates fear that the parental rights doctrine does not
protect children's desires or interests in maintaining psychological
[*720] The psychological parent perspective comprises two models. The first, the de
facto parent model, expands the idea of parent to include adults who become
members of the child's family and whom the child may view as a parent, though
the person lacks a legal or biological relationship to the child. The second,
the adoption promotion model, seeks to maximize children's opportunities to
develop or preserve non-biological parent-child relationships. Both models are
concerned primarily with the promotion of psychological relationships children
can form or have formed with care-giving adults. The models purport to be
child-centered, however, they presume that these psychological attachments are
important to all children, regardless of age or circumstances. These models
would, for the most part, permit individualized inquiries into children's needs,
n159 but they presume that adults other than the parents should determine, or have
a role in determining, the children's interests.
1. De Facto Parent Models - Persons who meet the definition of parent generally
have the right to play a role in the child's upbringing through custody,
support and visitation.
n160 Parents enjoy a presumption that they will have custody of, or visitation
with, the child and that the best interests of the child guides these decisions.
n161 Yet persons who do not satisfy legal definitions of parent often play
significant roles in children's lives. Such relationships commonly develop when
children form attachments to stepparents, foster parents, other care-givers
selected by the parents, and father figures when the mother and father were not
married. These non-legal, de facto parents can lose their relationship and any
contact with the child, should the legal parent so choose.
n162 De facto parent models give these persons legal status, so that they can seek
custody or visitation with the child over the parent's objection, but they
cannot necessarily terminate parental rights. In this way, the de facto parent
models expand the definition of parent to people who have in fact, not through
the operation of law, stood in the role of parent to a child. There are two
types of de facto parent model, one consensual and the other non-consensual.
The consensual model grants legal status only to those persons who have become
de facto parents through relationships to which fit parents
[*721] have consented. The non-consensual model grants such status to persons without
regard to parental consent or fitness.
a. Consensual Model - The consensual de facto parent model finds support in the
American Law Institute's Draft Principles of the Law of Family Dissolution
n164 This model also finds support in a growing body of statutory
n165 and case law
n166 that permit
[*722] a person, frequently the significant other or affectional partner of the legal
parent, who has lived with, cared for, and supported the child to secure some
measure of parental status, generally to assert visitation or custody claims.
That status would allow the de facto parent, upon dissolution of the
relationship, to have visitation or custody, and make decisions on behalf of
n167 The presumption, however, is that the de facto parent will not have primary
custodial or decisionmaking responsibility unless several conditions exist.
Such conditions are that the legal parent agrees, has not performed a
reasonable share of parenting, or that it would be harmful to the child not to
be with the de facto parent.
The consensual de facto parent model creates a new category of parent.
Nevertheless, it does not unduly diminish the legal parent's role as parent,
because it requires either parental consent to the relationship's formation or
a failure to parent.
n169 This model
[*723] sanctions state interference with parental authority to determine the child's
interests. It does so, however, only when the psychological parent relationship
developed from a relationship to which the legal parent had previously
n170 or when the parent has abdicated the parental role.
n171 The model thus limits parental authority (regarding with whom the child may
have an ongoing relationship) only when the parents themselves have chosen to
expand their own family unit or have abdicated their parental role.
n172 Moreover, the consensual de facto parent doctrine comports with the matrifocal
definition of parent to the extent that de facto parent status extends largely
to persons who were in a domestic partnership with the legal or biological
parent and provided care for the child.
n173 That is, in the context of co-parenting, the de facto parent is analogous to
"father" who marries the
"mother" or cares for the child.
n174 In this way, the model does not reduce the importance of biology or make the
family public: it simply adds parents based on past parental conduct and
b. Non-consensual Model - In contrast, the non-consensual de facto parent model
does not consult parental conduct, but looks solely at non-parents' parent-like
relationships with children, granting de facto parent status to persons who did
not form a relationship to the child with the parents' consent or because of
n175 Primarily reflected in legal commentary, but also in some doctrine, the
non-consensual de facto parent model finds its motivation in protecting de
facto psychological relationships children form with adults other than their
n176 Commentary advocating this proposed model, purportedly driven by the child's
needs or interests, apparently responds to failed adoption cases like
"Baby Richard" and
n177 In those situations, parental rights doctrine forced would-be adoptive couples
to return young children, whom the couples had raised since birth. They
returned the children because the prospective adop-
[*725] tive parents failed to obtain parental consent or prove that a non-consenting
parent was unfit. Moved both by the plight of the children and their
psychological parents, the commentary promotes a model which places such de
facto parents or judges on the same or better footing as biological parents in
determining what the child's interests are.
This model accords children or their psychological parents legal standing to
question parental determinations about what is best for the child. The model
would require the court to hear and consider the child's perspective,
particularly evidence of affectional ties, when determining custody as between
parents and third parties.
n178 The model could also, in its most extreme version, create a liberty interest
for the child and his or her psychological parents to family protection.
n179 By giving children or their psychological parents these rights, this model
provides children with a right not to be raised by their birth parents.
n180 This right could inhere in the child and the psychological parents to protect
established family relationships,
n181 or could be effected by granting power to a child's psychological parents to
seek custody or visitation on behalf of the child.
n182 The model would protect a child's psychological relation-
[*726] ships, regardless of the legal parents' fitness or consent to that
n183 Thus, when foster parents, would-be adoptive parents, or presumably any other
primary caretakers face a loss of custody of the child to the legal parents,
the court should review the best interests of the child to award custody.
Implicit in this model are two significant presumptions about parental
authority. The first is that parents do not want what is best for their
children, particularly when the children have formed attachments to others. The
second presumption is that the child or other adults can weigh and assess the
child's interests more accurately than the parents, even without proof of
unfitness. Both presumptions implicitly or explicitly challenge parental rights
doctrine by disconnecting parental and child interests and permitting
intervention into families based on some standard lower than parental unfitness
or consent. This model, thus, fundamentally revises parental rights doctrine by
taking decision-making authority from biological parents and giving it to the
child, the child's de facto parents, the judge or the child's lawyer. Parental
rights doctrine only permits this transfer if the parents consent or are
failing in their parental responsibilities. The non-consensual de facto parent
model essentially holds that the parental decisions no longer deserve deference
once the child has been out of their care for an undefined length of time.
Moreover, this model's diminution of the biological connection assumes that
psychological attachments are more important than biological attachments. It
also assumes that the parental work of bearing and giving birth to a child is
less valuable than providing day-to-day care to a child after birth.
In contrast, the parental rights doctrine values this biological mothering and
requires a failing on the part of the mother and the person who supports her or
the child before others can earn the privilege of deciding what is best for
n185 The protec-
[*727] tion of psychological relationships, to the formation of which the birth
parents never consented, undermines this prohibition against intervention into
n186 Advocating that children should have a separate, even constitutionally
protected, liberty interest in maintaining these relationships directly
challenges the parental rights doctrine because the proposed interest rests on
a presumption that fit parents do not protect their children's interests.
Moreover, granting children such a liberty interest would effectively permit
psychological parents to usurp the parents' constitutional liberty interest in
a relationship with their children.
2. Adoption Promotion Model - This model limits parental authority by expanding
decisionmakers for children and presuming that once a child or a sibling is in
substitute care, the child need not be reunited with the biological family. The
adoption promotion model manifests itself in standards, doctrine and the legal
commentary that make adoption or prospective adoptive families equal to birth
n188 The Uniform Adoption Act of 1994 (UAA) and a handful of state adoption
statutes provide an example of this approach. They permit hearings following
thwarted adoptions that would allow nonparents to obtain custody instead of a
non-consenting, fit birth parent.
n189 Accordingly, when nonparents seek
[*728] to adopt a child and the court fails to find that grounds for adoption exist
(for example, the birth parent is unfit or has consented to the adoption), the
parent is not necessarily entitled to resume custody.
n190 Instead, the court will determine with whom the child should live.
These provisions essentially permit courts to transfer custody from birth
parents to other private individuals who have filed an adoption petition, even
when the court has found that fit birth parents do not consent or have never
consented to placement of the child with the adoption petitioners. These
provisions amount to a limitation of parental authority because they transfer
the right to determine custody and control of the child from the parents to the
court. They also amount to a limitation of parental authority because the
provisions permit this intervention regardless of whether parents have failed
in their parental responsibilities by abusing or neglecting the child.
n192 These provisions allow the filing of an adoption petition to transform
non-parents into parents. Like the non-consensual de facto parent model, the
UAA subordinates biological relationships. The UAA, however, goes further by
[*729] subordinating biological relationships to nascent psychological relationships.
Federal child welfare policy applies a preference for the adoption of children
whose parents have been unwilling or unable to provide adequate childcare. The
Adoption and Safe Families Act of 1997 (ASFA)
n193 marks a departure in articulated federal child welfare policy from family
preservation to adoption.
n194 ASFA promotes adoption of foster children at the expense of parental rights.
It simultaneously limits funding for family preservation and time for family
reunification while it increases funding for promotion and preservation of
adoption. ASFA limits the provision of services to preserve families, instead
"putting children on a fast track from foster care to safe and loving and
n195 ASFA permits states not to provide family preservation services to families in
n196 It, nevertheless, requires that the state seek to maintain most neglected and
abused children in their homes and, if removed, to reunify them with their
families. The AFSA also requires states to initiate or join petitions to
terminate parental rights in these same circumstances or if a child has been in
foster care for fifteen out of the most recent twenty-two months, with a few
n197 ASFA does not increase funding or provide additional safeguards to insure that
parents receive reunification services during that fifteen-month period.
n198 Instead, it limits the time period for reunification of children with their
families, provides financial incentives for adoption, and requires states to
make reasonable efforts to have a child adopted when that is the goal for the
ASFA presumes that certain children, those who have been in foster care for
over one year and those with very violent parents, should be adopted.
n200 These presumptions, coupled with the shift of funding to adoption promotion
and planning, even before parental rights have been terminated, illustrate a
move away from deference to parental authority and deference to individualized
inquiries as to parental fitness.
n201 ASFA also establishes generic
[*731] mandates as to how long a child should belong to his or her family. Although
it permits individualized consideration, ASFA presumes that children, whether
they are infants or teenagers, should not return to their families of origin
after being separated for fifteen months. ASFA further presumes that they
should be placed in new adoptive homes, again without regard to the children's
own circumstances, attachments, or age. Like the UAA, the ASFA constitutes at
least a partial abandonment of the presumption that biological parents are the
first choice for children.
n202 Indeed, as one commentator has observed, ASFA seems to view adoption as the
goal of child welfare services and the legal relationship between children and
their parents to be the barrier to that goal's attainment.
Professor Elizabeth Bartholet appears to be one of the few legal academicians
to embrace both the UAA's and ASFA's adoption preference and diminution of
biological parent-child relationships.
n204 She advocates that parenthood should be reconstructed to minimize biology so
that adoption will be an easier and more desirable method for having children.
n205 In a more radical departure from family preservation than the ASFA, she
recommends abandoning the state's federally-mandated role to assist the parents
[*732] remedying the problem. That is providing services to reunify the parents with
the children. Professor Bartholet instead advocates placing the state into the
role of child-broker, terminating parental rights and placing children with
n206 Indeed, Professor Bartholet even criticizes the child welfare system for
providing services to intact families when abuse or neglect has been indicated
rather than removing the children immediately.
n207 Her work also suggests the abandonment of traditional standards for state
removal of children (harm or risk of harm based on parental abuse or neglect),
while replacing these standards with something akin to a best interests of the
The adoption promotion model diminishes the biological aspect, and privacy of
parenthood, by permitting third parties to decide when to dissolve and create a
new family without first establishing parental failure or unfitness. This opens
the family to outside intervention. This evaluation may be based on the needs
or assessments of others outside the family, and not necessarily regarding
parental conduct or the interests of the child. On the contrary, the adoption
promotion model makes generalized presumptions about family reformation that
are based entirely on third party adult actions (adoption petitioners) or
assumptions (that children should be severed from their parents after fifteen
months of separation).
C. Adult Choice Perspectives: Changing Roles of Sex and Gender in Defining
Changes in the role of sex (in its biological and reproductive senses) and
gender in parenting have prompted re-examination of biology's role in the
definition of parent. Lesbian and gay families confound the traditional
gendered (mother and father) aspect of the parental rights doctrine because
they frequently seek creation
[*733] or legal affirmation of family relationships that by definition are not
heterosexual and not marital. That is, in a same-sex co-parenting arrangement,
only one parent, at most, can be the biological parent.
n209 Because the parental rights doctrine generally presumes only two parents of
different sexes or genders, lesbians and gays must often defeat the rights of
one or both biological parents to obtain parental status for themselves.
Reproductive technology also permits parenthood without biological relation to
the child and without coitus. It increases the number of potential biological
and legal parents for any one child. Although reproductive technology need not
disrupt parental rights doctrine when adoption law principles apply, some
commentators advocate divorcing parenthood from biology and care-giving
entirely, replacing them with the pre-conception intent of the potential
parents. Moreover, reproductive technology now permits the separation of the
maternal biological connection to the child: gestation and genetic
relationships can be split between two women. In this situation the parental
rights doctrine does not clearly identify who is considered the mother.
1. Protecting Lesbian and Gay Families - Lesbian and gay challenges
n211 to parental rights doctrine typically arise in several settings: the creation
of families (through artificial insemination,
[*734] surrogacy and adoption), the legal extension of family benefits to existing
custodial de facto parent-child relationships (adoption), and the protection of
de facto parent-child relationships after dissolution of the adult relationship
(third party visitation or custody.) Many of these issues are not unique, but
are more endemic, to lesbian and gay families because of laws that limit the
creation and protection of parental relationships of two persons of the same
sex. These issues may also be increasingly concentrated in lesbian and gay
families as more lesbian and gay couples become parents, rather than sharing
parenting responsibilities of a child born in a previous affectional
Childless lesbians and gays may create parent-child relationships through
artificial insemination, surrogacy, or adoption. These arrangements normally
depend on parental consent or judicial processes that terminate parental rights
of one or both birth parents. This permits lesbians and gay men to have
families without engaging in heterosexual sex or having any ongoing
relationship with the other biological parent or parents of the child.
n213 In some cases, however, non-custodial biological parents - usually fathers -
may have standing to request and obtain visitation or custody.
[*735] The mother and her partner both seek to bar the father's access because he is
not really a parent and should have access only at the mother's and her
n215 This argument undermines the biological connection between father and child,
but may comport with the matrifocal aspect of parental rights doctrine and the
Supreme Court's preference for two affectional parents in the same household.
Adoption is an important tool to create new, and validate existing, de facto,
n217 Lesbians and gay men in a relationship with a same-sex partner who is the
birth or adoptive parent of a child may want to establish a legal parent-child
relationship for multiple reasons. This relationship provides the child with
second parent benefits, such as health insurance, governmental benefits, or a
surviving parent, should the legal parent die or become incapacitated, while
insuring that the second parent will
[*736] have the rights and responsibilities of parenthood should the adult
relationship end in another fashion.
n218 Lesbian and gay partners may seek simultaneously as a couple to adopt a child.
n219 Because most adoption statutes do not explicitly permit same sex adoption,
n220 same sex adoption litigants therefore must often argue for expansive
interpretation or liberal construction of adoptions acts. The parties
frequently rely on the ubiquitous best interests of the child provisions of the
n221 or relaxation of statutory thresholds for filing adoption petitions.
n222 These arguments do not usually address, or advocate eroding, standards that
protect birth parent rights.
n223 However, the arguments could foster approaches to adoption that privilege the
best interests of the child, or justify outcomes, at the expense of process in
ways that could erode parental rights protections.
n224 That is, adoption law is structured to consider adoption only after a parent
has consented or been judged unfit to be a parent. Modifying this structure or
these standards could undermine parental rights protections. Apart from
[*737] this potential threat, lesbian and gay adoption does not undermine parental
The break-up of same-sex partners who co-parent a child legally related to only
one of the parents raises custodial issues and remedies similar to the
consensual de facto parent model.
n225 Indeed, same-sex couple dissolution is a paradigmatic example of the
consensual de facto parent model and these cases constitute a substantial body
of de facto parent doctrine.
n226 A model that recognizes de facto parental rights of a same-sex, non-legal,
co-parent defers to the legal parent's autonomy because de facto parental
rights would arise out of a parent-child relationship which the legal parent
consented to and encouraged.
In sum, lesbian and gay parenting does not pose a fundamental challenge to
parental rights doctrine, even though the parental rights doctrine generally
presumes two and only two parents of different sexes. Lesbians and gays
advocate enlarging the definition of parent to include the non-marital,
non-related partner, and, occasionally, narrowing the definition to exclude one
or both biological parents (in order to obtain parental status for themselves).
n227 Each argument devalues the male biological aspect of parental rights doctrine
(genetic connection only) but is consistent with the aspect that establishes
parenthood based on relationship to the
2. Accommodating Reproductive Technology - Reproductive technology
n229 itself can challenge biologically-based parenthood because it creates families
who do not fit the traditional patterns produced by coital reproduction and
facilitates extra-family private ordering among biological and non-biological
n230 Reproductive technology, thus, dramatically increases the options for, and
complexities of, creating children and invites multiple claims to parenthood of
a single child, embryo or fetus. Reproductive technology permits separation of
female gestation and genetic contribution, and increases the possibility of
separation of male genetic donation and commitment to the mother or the child.
A child, therefore, can have as many as three or more women and three or more
men with legal claims to parenthood.
n231 Nevertheless, doctrine and commentary are largely consistent with parental
rights doctrine, although some reproductive technology rhetoric imagines, or
advocates for, new definitions of parenthood that privilege intent and exclude
biology and, thus, undermine parental rights doctrine.
n232 However, competing claims of gestational surrogates
n233 and egg donors who agree to produce a child may pose the most difficult
challenge for parental rights doctrine.
[*739] Assisted reproduction doctrine generally does not challenge constitutional
parental rights doctrine because it is consent-based. In most instances, the
law will not force a traditional surrogate
n234 to relinquish her baby if she changes her mind,
n235 and persons who donate gametes so that others can use them to create and rear
a child are not entitled to, or burdened with, parental rights and
n236 Many commentators apparently wish to normalize assisted reproduction by
treating it like sexual reproduction.
n237 In fact, one of the major disputes is whether contract or family law should
govern the delineation of parenthood in non-coital reproduction.
n238 Yet, even these doctrines are based on consent of the biological parent(s),
while the choice of either legal paradigm relates to whether preconception
intent of the parties should govern parental rights or whether family doctrines
such as best interests of the child and safeguards around relinquishment of
maternal rights should govern. Neither family nor contract law advocates would
wrest children from biological parents who did not at one time or
[*740] another express a willingness to relinquish parental rights through anonymous
gamete donation or contractual agreements.
Parental rights doctrine does not clearly mandate the use of contract or family
law principles. On the contrary, parental rights doctrine permits states to
govern conditions or methods for voluntarily relinquishing or transferring
n240 Thus, surrogates and gamete donors may relinquish parental rights pursuant to
state law. However, the question of whether a surrogate mother can validly
relinquish parental rights pre-birth may have constitutional implications
relating to whether a woman can deprive herself of future liberty interests.
n241 Donation of eggs or sperm for someone else's use is less problematic because
genetic contribution is not a sufficient condition of parenthood.
n242 These donors relinquish the opportunity to establish a liberty interest,
unlike the traditional surrogate who will have established a liberty interest
by bearing the child.
The more thorny challenge reproductive technology poses for parental rights
doctrine arises in the gestational surrogacy context when the woman who donates
the egg and the woman who carries
[*741] the pregnancy each seek parental rights. The prevailing view seems to
privilege the ovum provider when she produced her ovum for the express purpose
of reproducing a child for herself.
n243 This view appears to rely on an intent-based definition of mother that looks
to intent to parent at the time of conception. If a woman intends to
"donate" her womb or ovum so another woman can be the mother, then the donee, not the
donor, is the mother.
n244 If intent to parent is a tiebreaker between two competing biological mothers
(gestational and genetic), as many commentators suggest,
n245 it is consistent with, but not mandated by, parental rights doctrine. That is,
neither the genetic nor the nurturing relationship is sufficient to establish
motherhood, so neither woman is the mother. Yet, each can forego her ability to
be considered a legal parent through relinquishment of that right
n246 before, at, or after, the time of conception. However, such contracts,
particularly for gestational surrogates, pose other problems.
n247 Despite a conceptual
[*742] consistency with parental rights doctrine, commentators do characterize
gestational surrogacy and gamete donation as a new type of parenthood defined
by pre-conception and pre-birth intent, manifested by a contract, to have a
A rather extreme manifestation of an intent-based parent conception is the
theory that there is a constitutional right to procreate that requires that the
state recognize as parents those persons who desire and plan to have children
using reproductive technology.
n249 This constitutional right to procreate
n250 extends to persons who are unable or unwilling to reproduce coitally,
regardless of whether they have a genetic tie to the creation.
n251 Although this liberty interest does not mandate that the state provide the
means to procreate, the state must enforce preconception agreements, over the
claims of donors and surrogates.
This establishment of a liberty interest in non-coital procreation that
requires states to enforce pre-conception agreements would elevate to
constitutional status the pre-conception intentions of persons who may have no
biological or personal connection to the child or the biological parent(s). The
enforcement of pre-
[*743] conception child-rearing agreements may not violate parental rights doctrine.
However, according their enforcement constitutional protection confers parental
status based upon volition, rather than any biological connection or
demonstrated affectional conduct.
n253 This would mean that the pre-conception intentions of persons who are
unrelated to the potential child and who have no more than a potential
nurturing relationship to the child or, perhaps, supportive relationship to the
biological mother would, as a constitutional matter, suffice to designate them
as the parents. The traditional surrogate mother, who by definition intended
initially to relinquish the child but who meets the current matrifocal
definition of parent, would not be a parent because the constitutional
definition of parent would no longer depend on genetic and nurturing
relationships. This construction of parental rights deletes biological and
affectional connection, leaving third parties to determine who are parents by
virtue of adult preconception intentions.
Reproductive technology, thus, poses both actual and rhetorical challenges to
parental rights doctrine by creating legal constructs that permit alienation of
one's gametic materials and allow the separation of the maternal roles of
gamete donation and gestation. Because technology increases the options for
people to plan for children's reproduction before conception and without regard
to biological connections, commentators are tempted to re-write parental rights
doctrine to exclude such connections and the requirement of earning parenthood.
Indeed, under procreational rights theory, all that is necessary is the intent
to parent. Therefore, contract and procreational rights theory omits the child
altogether. These theories are exclusively adult-oriented, unlike traditional
family and adoption laws that recognize as parents persons who have a physical
relationship to the child or mother and allow modification or transfer of that
status according to the parents' wishes and the best interests of the child.
D. Feminist Perspectives: Regarding Motherhood and Privacy
Feminist perspectives challenge parental rights doctrine because they question
the very meaning of biology, sex and gender, and the privacy of the family.
Feminist theory and activism have been largely devoted to challenging the
differential experiences, treatment, and conceptions of women and men. In doing
so, feminists have identified and challenged the perceived connection between
biological differences and gender norms.
n254 These challenges have placed biology, motherhood and families at issue because
women's unique role in gestating fetuses and nursing babies has supported
constrictive social norms that dictate what women can and cannot
[*745] do both to their own bodies and in the social, political and economic spheres.
n255 These critical perspectives implicate, albeit indirectly, the parental rights
doctrine because much of feminism's work has involved the disassociation of
women from child bearing and rearing and examination of the role family privacy
ideology plays in the subordination of women. In these ways, feminist
perspectives reject or minimize the biological content of parenthood and reduce
family privacy. Although these feminist perspectives are not anti-child, they
are primarily concerned with adult freedom and values.
1. Biology, Gender and Motherhood - The association of women with children -
women as mothers - is a major focus of feminist scholarly debate. Torn between
the power of motherhood and its limitations, feminists are both critical and
celebratory of women's biological and socially constructed role as life and
caregivers. Early in the second wave of feminism,
n256 Adrienne Rich described these two meanings of motherhood as: (1) the potential
relationship of women to their powers of reproduction and to children; and (2)
an institution which works to keep that potential and women under control.
n257 More recently, Dorothy Roberts has explained the crux of this dilemma:
"it is difficult to explain motherhood, as an institution and an experience, in
a way that grasps both its affirming and oppressive aspects."
Feminists have suggested that the unique, nurturing relationship of women to
n259 implicates a particular feminine morality.
n260 Yet, feminists have also criticized the notion of family as
[*746] normative and socially constructed consisting of a White, middle class,
heterosexual cohabitational unit,
n261 oppressive to both women and children,
n262 and a mechanism for reinforcing gender roles and patriarchal hegemony.
n263 The Article explores two basic responses to these gendered dichotomies, one
that distances women from motherhood and the other that uses motherhood as the
model for all women and men. Both of these responses turn motherhood into an
abstract notion, making motherhood a virtual activity or concept, divorced from
the acts of gestation and birth.
a. Separating Women from Motherhood - Feminists have challenged the gendered
connection between women and motherhood for several reasons. Dominant
conceptions of woman entail motherhood.
n264 Thus, courts and legislatures have historically restricted women's choices
based on a unified conception of women and mothers.
n265 This social construction of womanhood views all women as potential mothers,
n266 both constricting more
[*747] expansive or different views of women and suggesting that women who do not
become mothers are not women.
n267 The equation of womanhood with motherhood limits women's opportunities outside
and inside the family and supports gender-based expectations regarding thought,
action, dress, and behavior.
n268 If a woman is only either an actual or potential mother, her role is to be, or
prepare for being, a mother, not an astronaut, attorney, or athlete. The
equation of woman and mother relegates women to the private confines of the
family, while men are free to engage in the outside, public world of paid work
n269 Moreover, because women are mothers, they have no interests apart from
motherhood, so women's interests become indistinguishable from children's,
depriving both mothers and children of individuality by denying that their
interests can ever conflict.
Those feminists who seek to be free, like men, from these constricting norms,
divorce parenting from women, disregarding motherhood and the family, except
insofar as they impede equal
[*748] treatment in the male world.
n271 In attempting to maximize women's autonomy, these feminists have highlighted
women's similarity to - not difference from - men, thus discounting sex-based
n272 In the context of the family, these feminists have disavowed any connection
between women and child rearing.
n273 Viewing child-rearing, at least in part, as a burden that inhibits women's
autonomy, they advocate social or legal reform that would equalize child
rearing responsibilities among men and women.
n274 After all, if women and men are the same, they should share child-rearing
n275 Once care-giving is no longer the domain of mothers, anybody can do it, even
n276 This has been an important ideological step in freeing women from limitations
based on their potential or actual role as mothers. But, by equating men and
women as parents, feminists rhetorically nullify the very
[*749] distinct roles of women's and men's biological connection to children and the
attendant maternal privileges.
n277 Equating maternal and paternal roles in the creation of parenthood either
reduces the biological connection to genetics or neuters the roles by
characterizing them as care-giving and, thus, discounts the matrifocal aspect
b. Separating Motherhood from Women - The converse approach that challenges
confining normative associations of women and parenthood is to privilege
mothering and its associated norms. This approach too presents a sex-neutral,
though gendered, parenting model. The approach does so in the context of
different definitions of family
n278 or civic values,
n279 each of which privileges and supports relations of dependency and caregiving.
For some feminists, redefining families begins with the recognition that child
rearing is factually, structurally, and ideologically gendered. In other words,
family is currently configured as a self-contained triad defined or created by
the relationship between adults wherein the children depend on the mother for
care and the mother depends on the father for support.
n280 This configuration masks the dual-edged nature of dependency whereby the act
of caring for dependents creates dependency for the caregiver (who is usually a
n281 This caregiver dependency makes women particularly vulnerable because they
must rely on private financial and child-care support from their partners
[*750] recognize and remedy this dependency, feminists argue for a redefinition of
families based on the mother-child or care-giver-cared-for dyad.
n283 This model advocates ideological and financial support for vertical
relationships of dependency rather than horizontal relationships based on sex.
n284 Under this model, the public would support the parent (mother)-child dyad,
rather than tying support to the private means and volition of the other parent
n285 Moreover, this dyad would no longer be tied to biology and child bearing,
although it would be defined by dependency and care-giving. Instead, this dyad
could be filled by men and children (or other dependents, such as elderly
The argument that mothering is not tied to biology, that child-bearers need not
be child-rearers, also resonates with feminists who address families that do
not fit dominant (White, middle-class, heterosexual) family norms. Just as
feminists have challenged gendered norms arising out of women's biological
ability to bear children, feminists have also questioned biological and social
constructions that affect parenting definitions. The dominant ideology of
family is that it consists of mother, father, and child(ren), with the mother
providing child care and the father supporting and heading the family.
n287 Yet that is a particularly White, heterosexual,
[*751] middle-class norm that does not apply to many families of color, to poor,
lesbian, and gay families, and even to families of divorce.
For example, families of color frequently live in extensive kin and fictive kin
networks that transcend or even substitute for the nuclear family, through, for
example, maternal-led families, informal adoption, and multi-generational
n289 Blood ties, although important, are only one ingredient in a rich construction
of family love and obligation.
n290 Moreover, White working class families are often extended, rather than nuclear.
n291 Lesbian and gay parents are not both biologically related to their children,
nor do they fit the heterosexual portion of the dominant family norm.
n292 This diversity and complexity of family relationships leads some feminists to
question the primacy of biology in creating and defining families.
Another way that feminists value motherhood is to disconnect it from women,
place it in the public realm, and universalize it. These feminists find
cross-cultural similarities among women and differences from men that are based
on women's capacity to be-
[*752] come pregnant and their cultural role as child rearers.
n294 Because of the commonality of the potential for motherhood, some feminists
suggest that women share an essential connection to other people and are,
therefore, primarily relational, rather than, like men, autonomous.
n295 In contrast to the values relating to the dominant (male) norm of autonomy,
e.g., individualism and rights, women's connectivity suggests different norms,
such as nurturing, empathy, and inclusion.
n296 These feminists reject male-defined values of autonomy and rights and suggest
instead that female values form an alternate jurisprudence and ethics for all
For these nurturing values to be universal, they must not be connected to
gender or biology.
n298 Accordingly, some feminists have separated motherhood, whence these norms
arise, from women.
n299 Mothering, thus, is divorced from nature and biology - child bearing - and
becomes a practice, job or relationship in which one person
"nurtures and cares for another."
n300 Mothering then starts after birth
n301 and can be done by anyone and in various
n302 That way, childbearing no longer counts. This degendered universalization of
mother allows non-mothers - especially men - to appropriate the values of
nurture and connectedness.
n303 It also frees women from automatic relegation to the maternal role and holds
others accountable for fulfilling that role.
Feminists, thus, separate biology and parenthood for several reasons. They do
so to free women from confining maternal norms, to make society more responsive
to relationships of dependency, and to reflect complex and diverse family
structures in which the biological parent-child connection may not be primary
or exclusive and promote maternal norms in larger society. Although the intent
is not to minimize motherhood, this further abstraction of motherhood from the
physical maternal role to the more universal notion of care-giving diminishes
the role of maternal biology in parent-child definitions and suggests that
mothering belongs to the public, diminishing the privacy of the parent-child
2. Gendered Harms in Family Privacy Ideology and Doctrine - In addition to
separating women and family, feminists have attempted to remove women and
family from the private realm, so that they can
[*754] partake of the benefits of the public world of polity and market.
n305 Feminist approaches to family have criticized the rhetoric that invokes the
purportedly private nature of families - the political, ideological, and
gendered construction of public and private realms that relegate women and
mothering to the private family and place men, the market, politics, and law in
the public realm.
n306 The legal and social equation of families with privacy works in three
interrelated ways: 1) it associates families with the private sphere, not the
market or polity; 2) it associates women (and children) with families and,
therefore, the private sphere; and 3) because the families are private, it
prohibits state intervention into family relations, instead leaving them to be
n307 This construction of family as a private and unitary entity has harmed women
because of power imbalances and compulsory gender norms that contribute to
subordination of women.
[*755] The ideological and legal relegation of women to the private family
historically kept, and continues to keep, many women from public life. For
example, women could not work for pay, sue or be sued, sign contracts or vote.
These restrictions prevented women from having a public life.
n309 Relegating families to the private realm both devalues domestic work and
enforces patriarchal hegemony over domestic assets and expenditures.
n310 Family privacy also justifies public (state and market) abdication of
meaningful responsibility for the support of children or their caregivers.
n311 Thus, women are not adequately compensated for their domestic labor and
support for children is often inadequate because this support depends upon the
private resources of their parents, sometimes supplemented by inadequate public
The characterization of the family as private also justifies state reluctance
to intervene to protect family members from violence, abuse, or neglect, so
women (and children) have no protection from private harms/injury within the
n313 Marriage legally unifies the husband and wife, and in the past, subsumed the
[*756] legal identity into the husband's, so the state could not intervene in
interspousal contests because the wife had no legal standing.
n314 The historically protected marital unity and resulting privacy given to that
relationship has been said to sanction or promote, violence against women.
n315 Liberal notions relegate families and, by association, women, to the private
world. Similarly, differentiating between state (public) and non-state
(private) action limits legal intervention to protect against non-governmental
restriction of women's autonomy.
n316 This laissez faire structure leaves women more vulnerable to private physical,
economic, and cultural violence and subordination.
The persistence and limitations of assigning women and families to the private
realm have led some feminists to reject liberal and constitutional privacy
doctrine as useless and even harmful, and as
[*757] counterproductive tools for equality
n318 or for autonomy.
n319 Instead, some feminists have argued for more intervention into the family
n320 by dissolving the public-private split
n321 and restructuring the relationship between families and the state so that
public, rather than private, resources are used to support mothers and children.
n322 Feminists also argue that women should claim the autonomy aspect of privacy
(freedom of choice)
n323 and reject the familial notions of privacy (state-family distinction).
n324 These responses to the harms of privacy hint at, and often explicitly call
for, a revision or abolition of privacy doctrine.
Feminist theory has not been directly concerned with the legal definition of
parent. It argues, however, that the equating of women and motherhood is
limiting both for women and society, it constrains women and mothers, it
brackets values of care from dominant societal norms, and it purports to be
natural and, therefore, separate from the market and polity. Separating biology
from parenthood spreads the burden and benefits of motherhood, making fathers
better parents and counteracting the negative aspects of individualism. In this
way, feminist critiques, like the other revisionist critiques reviewed in
sections II.A. and II.B., would limit the privacy of the family and
disassociate biology or gender from parenthood.
* * *
Most of the revisionist critiques expose the underside of privacy and the
significant limitations of parental rights doctrine. Some critiques are not
explicitly or directly about the parent-child relationship, but the
repercussions or careless extension of such critiques could undermine family
autonomy. Each of these critiques challenges a definition of parent based on
biology and seeks to limit the autonomy that the doctrine affords to families.
Revisionists present these challenges because the fixed, patriarchal, nuclear
family does not reflect the actual lives and structures of
[*758] many families. The nuclear family model disregards the needs of children for
care and nurture and the needs of adults to parent. The fiduciary model demotes
parents from arbiters of their children's interests to protectors of their
state-defined interests. The psychological parent theories would define parents
along adult-child affectional, not biological, lines. The adult choice theories
would define parents according to adult-adult affectional relationships or
intent to rear children, without regard to biological connection to the child.
Feminist theories challenge family privacy and the connection of biology and
parenthood, seeking to make families and family values more public and more
universal. The unifying theme of these various views is a challenge to the
notion that current constructions of families and motherhood should be private
and exclusive. Instead, revisionists all, on some level, argue that families
should be constructed, maintained, and publicly supported along actual
caregiving relationships, rather than, or in addition to, biological status.
III. Problems with Revisionist Perspectives and Models of Parenthood
Many of the family critiques above are compelling. However, their suggestion
that the parental rights doctrine or family privacy is anachronistic may not
comport with the experiences of the thousands of families who are deprived of
the recognition and protection the doctrine affords. Descriptions of families
and children trapped in patriarchal, oppressive, and abusive homes, cordoned
from public law and the marketplace, are at best incomplete and at their
weakest, simply inapplicable to many families. The oppressiveness of the
connections between woman and mother, and mother and child may not accurately
describe the experiences of women who face social, legal and financial
obstacles to the full embrace of these connections. Moreover, many parents face
state intervention in intimate choices about child bearing and child rearing,
which leave their families particularly vulnerable to disruption, contrary to
the impression that the parental rights doctrine unduly insulates the family.
For these families, the biological connection may be their best claim to family.
There are three major, related problems with these critiques. First, they do
not propose standards or the standards proffered are less determinate, as well
as more subjective and more interventionist, than the matrifocal standards
currently supplied under the
[*759] parental rights doctrine. Critics who suggest the reconfiguration of families
along caregiving or psychological, rather than biological, lines, ignore the
earned aspect of biologically-based parenthood - that caregiving is an
essential feature of existing definitions of parent and the scope of parental
autonomy. These critics also fail to account for how the biological parents
lose their parental status, including their right to make decisions about what
is in their children's interest. Second, these revised standards take privacy
for granted, overlooking the fact that many families are already very public
and struggle against state oversight and control that is often uninvited and
unhelpful. These families are more public because they are poor or otherwise do
not meet dominant norms - norms that frequently privilege White, middle class,
married, and heterosexual persons. Third, these public families suffer when
family privacy is reduced because they may not meet the discretionary standards
proposed. The relatively determinate matrifocal standards privilege the status
of women who have carried and fed the fetus through their own bodies and the
"men" who are biologically related to, and have cared for, the child or who have
cared for the mother. Without deference to these standards, the state would
have license to decide who is a parent based on majoritarian or dominant norms
regarding parents. Such norm-based decisionmaking is contrary to the liberal
values of moral autonomy, equality, and tolerance that limit state action.
This Part of the Article explores the problems that the critiques raise in the
remainder of this section. Section III.A. examines revisionist models and
illustrates that they broaden intervention, substituting other adults for the
parents in determining what is best for children, frequently without regard to
the parents' fitness or consent. Section III.B. explores how and why family
privacy is inaccessible to many women and children who constitute non-dominant
families or have limited financial means. In the context of this diminished
privacy, section III.C. argues that defining families along care-giving lines
will most broadly and deeply affect those families whose autonomy is already
compromised and who do not meet majoritarian or governmental standards for
A. Revisionist Standards
The parental rights doctrine defines parents using relatively objective
principles: biological relatedness and domestic partnership with the mother or
n325 The doctrine then permits parents to decide with whom their children will live
and with whom they will visit, unless the parents are not fit to do so. Parents
can lose or decrease their rights by consent or by neglecting or abusing their
children. The deference to parental fitness or consent is a hallmark of
parental rights doctrine. It permits parents, rather than judges or
legislatures, to make fundamental, individualized decisions - that may reflect
diverse notions of the good life - about their children's upbringing. The
deference also limits public scrutiny of family functioning to situations in
which parents have fallen below minimum care taking standards.
As observed above, many of the revisionist perspectives minimize the role of
biological caregiving and maximize post-birth caregiving or publicly-defined
determinants of the good life as grounds to interfere with the parent-child
relationship. Most of the critiques do not dispute the presumption that birth
parents will rear children, unless there are specific reasons that the birth
parents cannot, or should not, do so.
n326 Indeed, it is these reasons for interfering with this initial presumption that
the revisionists address: when courts, legislatures, and other adults can
substitute as decision makers about who constitutes or functions as a family
and what is best for individual children. The revisionist models propose
broader reasons for intervention than those permissible under the parental
rights doctrine, because those models permit intervention based on non-parents'
disagreement about a child's interests. These broader reasons undervalue the
earned nature of parenthood by allowing intervention without first showing that
parents are no longer competent to determine their children's interests.
[*761] In exploring these issues, it is helpful to define and distinguish the notion
of intervention and its scope. Intervention means the point at which someone
who is not a parent (for example, a third party, judge, guardian ad litem, or
legislature) is authorized to determine and rank a child's interests.
Intervention occurs once a decisionmaker other than the parent has legal
authority to review the parent's determination of what the interests are and
their relative priority.
n328 This definition of intervention is used because it captures the substitution
of parental judgment, not just the moment when others have entered into, or
become involved with, the family. For example, in a thwarted adoption case, the
point of intervention may not be when the birth mother transfers the child to
the prospective adoptive parents, but instead the point at which the
prospective parents refuse to return the child to the non-consenting birth
father. Scope means what the substitute decisionmaker reviews. For example, in
a custody dispute between parents, the scope is whether the court may review
custodial candidates in addition to the parents. The analysis is confined to
intervention and scope.
The revisionist models appear to contemplate intervention at several different
points and for diverse purposes, although the revisionists are not always clear
about grounds for, and the scope of, intervention. The fiduciary parent model
n330 would intervene from the outset. The state, not the parents, would define and
weigh children's interests to promote the values the state has identified as
most important (e.g., public education) or in the child's best interests (what
any rational child would want.) Although the state would not micro-manage the
child-rearing endeavor, it might provide more monitoring for those families who
are most likely to have conflicts with their children's interests, such as
families headed by parents who are extremely religious and families who
divorce. The fiduciary parent model, thus, accords the state broader power than
it has under current doctrine to determine what children's interests are and
[*762] to monitor child rearing and assess which interests are paramount,
particularly for non-marital families or families considered too far outside
the mainstream. The scope of intervention is broad and ill-defined, apparently
including an assessment of whether the parents are truly serving their child's
short and long term interests and extends to children's moral education. That
assessment substitutes the state as identifier, prognosticator, and balancer of
the child's interests.
The de facto parent models would allow an adult who has developed a
psychological parent relationship with the child to intervene when the legal
parent denies access to the child. The consensual de facto parent model
n331 permits intervention only when the parent had abdicated the parental role or
previously invited the adult to join the family as a parental figure. The de
facto parent has the status to assert his or her desire to have a role in the
child's life because the legal parent has effectively already consented to that
person's parental or quasi-parental role and enlarged the family circle
accordingly. That is, the de facto parent, like the marital
"father," has, with the legal parent's assent, supported the parent directly or
indirectly by caring for the child. The de facto parent, thus, gains parental
status, and accordingly, a right to maintain a relationship with his or her de
facto child. The scope of intervention would be confined to the existence of
and the amount of access the de facto parent could have to the child.
The non-consensual de facto parent model
n332 is different because it does not require parental unfitness or consent to the
relationship's formation and because it is premised on the child's needs and
interests, not the de facto parent's status. The non-consensual model allows
any psychological parent to assert that the child's interests include contact
or custody with the psychological parents. This difference is significant
because it permits intervention, regardless of the parent's consent to the
formation of the relationship, and because it is premised on the child's
interests in maintaining important relationships. Because the model bases
intervention on the child's needs and not on parental consent, it effectively
grants (certain) care-giving adults the (parental) right to decide, and then to
[*763] vince a judge, what the children's interests are. Although the non-consensual
de facto parent model is purportedly based on the child's interests, it does
not advocate for a broad scope of intervention. Instead, it is generally
confined to custodial decisions between the de facto and the legal parents.
The private adoption promotion,
n333 and the procreational rights, models
n334 permit intervention when a parent who contemplates relinquishing an existing
or prospective child changes his or her mind. These models, unlike the
non-consensual de facto parent model, do not intervene unless a parent has at
least considered relinquishing parental rights. Unlike the de facto parent
model, however, these adoption promotion and procreational rights models will
allow intervention (substitution of judgment about the child's interests) based
on the potential for caregiving, and in the case of adoption, even against a
legal parent who never consented to relinquish the child.
n335 In effect, these models allow displacement of legal parents with potential
parents who need not have established any sort of psychological or biological
parent relationship. The models, like the de facto parent models, confine scope
of intervention to custodial disputes between parents and prospective parents,
and in some instances, complete termination of biological parental rights.
Both the fiduciary and the non-consensual de facto parent models, unlike the
others, explicitly purport to serve children's interests. Yet even these two
approaches retain a nuclear family-based model for child rearing, albeit with
additional public involvement and financial supports, so that poor children do
not face such harsh material conditions as they do under the current regime.
Within this conventional framework, the children's interests models presume to
know best what is in children's interests. For example, the non-consensual de
facto parent model values psychological parent, but not other, attachments.
Accordingly, they advocate sparing children the grief attendant to loss of a de
facto parent but not other meaningful relationships, such as friends,
[*764] teachers, relatives, or nannies. This model, thus, does not advocate
intervention to prohibit parents from moving their children away from
neighborhoods where they have established relationships, or that nannies be
given parental rights and responsibilities, even though a child may not know
the difference between a paid caretaker and a family member.
n336 Ironically, the children's interests models accord little attention to the
harms of termination of parental rights and adoption, despite the deep, ongoing
pain that estrangement from family causes some children.
This selectivity about what is good for children suggests that these models
protect only the relationships that adults value. The psychological
relationship most valued is that of psychological parent. Although it may seem
uncontroversial that the most important consideration is for children to remain
with their psychological parents (thanks in large part to the hegemony of the
psychological parent theory), venerable competing theories exist.
n338 The Article is not arguing that one theory or the other is correct. On the
contrary, the Article recognizes that there is disagreement about what children
need. The parental rights doctrine assigns that determination to the birth
mother and to the birth father or the birth mother's chosen affectional partner
because they have earned the right to be arbiter of their children's interests.
n339 That right includes choosing who should care for the child.
Moreover, the fiduciary, non-consensual de facto parent, adoption promotion,
and procreational rights approaches abandon the maternal paradigm by
discounting, and even ignoring, the unique biological and relational work of
child bearing and permit establishment of parenthood over the objections of,
and without having supported, the
"mother." Under the non-consensual de facto parent model, parents are those adults who
act like parents. The standard, however, does not identify when or how the
psychological parents become more like parents than the biological parents. The
adoption promotion and procreational rights models would displace biologi-
[*765] cal parents with adults who want to be parents but do not require that these
new parents have earned parenthood or that the parents chose them. On the
contrary, these two models merely contemplate that the prospective parents want
to be parents. All of these models effectively grant parental status to persons
who act like, or want to be, parents. Yet the models skip the critical step of
finding first that the persons who have already earned that status - the
parents - have relinquished, or failed to maintain, that status by abusing or
neglecting their children.
This presumptive redefinition of parent invokes less determinate, more
subjective standards regarding current or future care-giving and discounts the
temporally and logically prior care-giving that establishes parenthood in the
first instance under the matrifocal parental rights doctrine. By doing so, the
revisionists discount the parenting work the initial parents have performed as
a condition of obtaining parental status in the first place. Instead, the
models require parents to re-earn parenthood. In these ways, revisionist
standards simultaneously lower the bar to intervention and minimize the
biological aspect of parent-child relationships, while reconstructing families
along purely social lines. These standards would also make children more public
because, as a developmental matter, children need caretakers and
decisionmakers. If their parents no longer have that authority, persons outside
the family - judges, lawyers, prospective parents - exercise that authority.
Indeed, the purpose of many of the critiques is to make children more
accessible outside their families of origin. Many parents, however, are already
subject to external scrutiny, and their children accessible to others. These
families are the subject of the discussion that follows.
B. Families Who Need More, Not Less, Privacy
Revisionist perspectives essentially view families as hidden, separate, and
physically and psychologically oppressive to women and children, and largely
immune from outside intervention or governance. From this vantage point,
perhaps family walls should be more transparent and permeable. Many families
who are more visible, less private and less autonomous, however, do not share
this vision of family life or the related assumption that public intervention
is fair, equalizing, and helpful. Just as family formations are not monolithic,
neither are the experiences of privacy. Family privacy and autonomy range along
a spectrum marked by lines of class, race, gender,
[*766] religion, and sexuality. Most simply stated, along this public-private
spectrum, White, upper class and middle class, marriage-based families are the
most private and protected from state intervention, while poor, non-marital
families of color are most vulnerable to state surveillance and interference.
n340 In between, there are families headed by single parents, lesbian and gay
parents, parents of color, and poor White parents who do not fit the dominant
norm of marriage-based intact family.
n341 Because these non-normative families fall outside of the definition of family,
they enjoy less privacy. They may not take privacy for granted or view
motherhood as mandatory or isolating.
Although some mothers might experience the maternal role as oppressive and
limiting, for others motherhood is not oppressive and husbands or other
domestic partners are not the primary oppressors.
n342 Instead, motherhood is a seat of power and value production
"through which children are raised into a deep appreciation and respect for
maternal authority and commitment to familial interdependence" rather than independence.
[*767] especially for women of color, dominant culture presents a substantial threat
to reproductive freedom, to the ability to raise children, and to preservation
of children's culture.
n344 For these women,
"the possibility of nurturing, motherhood, and family maintenance" has been challenged, not imposed.
n345 Further, for many working poor and working class women of any race,
"work and family have rarely functioned as dichotomous spheres."
n346 Women who must work out of economic necessity while their own children are
unattended or cared for by others might well appreciate being cabined at home
with their children.
n347 These women may find freedom in mothering their own children.
[*768] Many African-American women in particular share a history in which the very
reproduction of children was public and commodified. Female slaves gave birth
to babies whom slave owners then sold as labor power.
n349 Professor Dorothy Roberts has noted the continuity of this challenge to
African American maternity:
"Black mothers' bonds with their children have been marked by brutal disruption,
beginning with the slave auction where family members were sold to different
masters and continuing in the disproportionate state removal of Black children
to foster care."
n350 This experience and image of mothers who had no power to control the
often-permanent separation from their children after slave masters sold them
n351 starkly contrasts with the image of women seeking freedom from the oppression
of motherhood. The former image resonates today, as African American women face
tremendous threats to family integrity, particularly through the child
protection system in which African American children are disproportionately
In the divorce and custody context, families without fathers (or mothers) too
are public, even if they are White and middle class. The best interests of the
child standard, applicable in these proceedings, allows the state to assess
family structure and functioning without regard to parental fitness.
n353 Once parents divorce, the parents may use courts to monitor parental behavior
and direct child rearing, including custody, visitation and education.
n354 For example, courts have denied lesbian mothers and gay fathers custody of
their children and even prohibited these parents from having their lovers be
present or affectionate during visitation.
n355 This oversight affects mothers more than fathers, because mothers are usually
primary caregivers and courts will generally enforce the
[*769] requests of fathers, regardless of their level of involvement or support of
Poor families of all races are public because they use, or must rely on, public
resources and are more visible.
n357 The repercussions of this publicness are a special vulnerability to
surveillance and external control, and, accordingly, a diminution of privacy
n358 The limitations on individual liberties of women receiving needs-based social
n359 include the inability to assert protection under the Fourth Amendment,
n360 to treat abortion as a medical procedure,
n361 and to plan their own
n362 Families receiving welfare historically faced regulation of who could live in
the family home and with whom the mother could create a domestic partnership.
n363 The Personal Responsibility and Work Reconciliation Act of 1996 (PRWRA)
n364 continues to govern personal decisions, including with whom a mother has sex
leading to birth of a child
n365 and a mother's decision about whether to work outside of the home.
n366 PRWRA also permits states to condition benefits on certain parental conduct,
such as attendance of parenting classes.
n367 Moreover, receipt of PRWRA's Temporary Assistance to Needy Families (TANF)
like its predecessor, AFDC, requires parents to seek child support from
non-custodial parents who must then contribute child support in an amount
dictated by the state.
Poor families are also more likely than middle-class families to experience the
child protection system, a family law that is more public than that normally
associated with families - the laws of domestic relations that govern
inheritance, marriage, divorce, and custody between parents.
n369 Although the domestic relations system
[*771] sanctions state intervention into parental decisionmaking and custody, it is a
mechanism for private dispute settlement
n370 which typically presumes that the parents, not the state or third parties,
will maintain custody and control of the child.
n371 The child protection system, however, involves the state as a party, generally
prosecuting the action and obtaining custody of the child or supervision of the
n372 Coercive judicial and administrative intervention, the disruption of family
relationships, and a markedly reduced deference to parental custody and control
distinguish the public system from the private family law system.
The child protection system is arguably a descendant of the American (and
English) poor laws and Post-Reconstruction-era laws, both of which in different
contexts required poor, and Southern Black, children to be bound out for labor,
"better" lives and training than they would have with
[*772] their own parents.
n374 The newer system, like its predecessors, largely targets poor and minority
n375 and often confuses poverty with neglect.
n376 It, thus, intervenes to protect children by directing parental conduct and
child rearing techniques, frequently removing children from their families.
n377 Indeed, of the approximately 560,000 children in state-supervised substitute
care, forty-two percent (239,516) are identified as
"Black Non-Hispanic," thirty-six percent (203,000) as
"White Non-Hispanic," fifteen percent (84,924) as
"Hispanic," two percent (8,910) as non-Hispanic Native American, and one percent (6,304)
as Asian/Pacific Islander.
n378 Most of these children come from poor families.
The predominance of poor families, particularly poor African American families,
in this system is not surprising, given their visi-
[*773] bility and their dependence on public benefits, both of which make families
more likely to come to the attention of public authorities.
n380 Social scientists debate whether the prevalence of poor families in the child
welfare system is primarily due to higher levels of abuse and neglect in poor
families or to state decisionmaking bias.
n381 Assessments of the existence of child abuse and neglect, however, are largely
subjective and the decision to intervene
n382 is related to the decisionmaker's views about the viability of families and
the benefits of intervention.
n383 Although definitive proof of race and class bias may have eluded empirical
n384 evidence suggests that indicators of poverty may be confused with indicators
of potential child abuse or neglect,
n385 and that risk-assessors are unconsciously biased to see minority and
socioeconomically disadvantaged families as pathological.
n386 Racial and
[*774] economic bias in child welfare is particularly evident in the detection and
diagnosis of drug use during pregnancy. Pregnant poor and African American
women are significantly more likely to be identified as drug users, even though
the rate of drug use is relatively even across socioeconomic and racial groups.
Regardless of the propriety of child protective intervention,
n388 once the system has identified the families, they become even more public than
previously. State caseworkers supervise, survey, and assess these families.
They make recommendations to courts for determining if, and when, the children
should be removed from, or returned, home, and if removed, whether a court
should terminate parental rights.
n389 Unlike the domestic family law system that presumes a basic unity of interests
between parents and child,
n390 the child welfare system separates parents from children, providing greater
financial benefits for children in substitute care than in home care.
n391 In addition to being structurally anti-family,
[*775] the child welfare system is often administrated without respect for family
unity, strengths, or needs.
n392 The psychological parent theory has
"never been closely followed in contexts of deciding whether to remove a child
from her home for placement in foster or orphanage care."
n393 This devaluation of families is reflected in punitive, rather than helpful,
practices and in a reluctance to return children to their families.
Moreover, once the state coercively removes children from their families, it
all too frequently fails to provide meaningful and sufficient services to
support or reunify the families.
n395 On the contrary, the unavailability of needed services and inappropriateness
of some provided services are well-established.
n396 For example, drug use is cited as a risk factor in twenty to ninety percent of
[*776] tection cases, with the higher percentage in such highly populated states as
Illinois, New York, and California.
n397 Yet those who need substance abuse treatment may find it unavailable or
encounter long waiting lists.
n398 Moreover, substance abuse generally cannot be
"cured" or resolved quickly.
n399 Although recovery is marked by relapses, the state may require parents to be
absolutely drug free at all times before they can have any unsupervised contact
with their children.
n400 Similarly, inadequate food, shelter, and childcare are frequently causes of
child abuse or neglect.
n401 Yet, child welfare services are not set up or funded to correct these material
n402 Moreover, PRWRA limitations will make it more difficult for poor families to
obtain federal and state funding for poverty relief and childcare.
Thus, once parents and children (and often siblings)
n404 are separated through state intervention, their prognosis for timely
reunification, if any, is poor. Minority children in particular typically spend
more time in state care than White children.
n405 ASFA's mandate that the state seek termination of parental rights after a
child has been in substitute care for fifteen months undermines the integrity
of these families, particularly in light of the well-documented inability of
the child welfare system to provide timely services.
n406 Moreover, once the state terminates parental rights to one child, protection
of the parents' parental rights for their other children diminishes because
ASFA expressly permits states to abandon family preservation or reunification
attempts when the parents have previously had their rights to a child
n407 Once the state severs the children's ties to their parents, the children lose
their legal ties to the remainder of the family and have no guarantee that they
will become members of new families.
n408 On the contrary, every year the state creates hundreds, if not thousands, of
legal orphans, children who have no legal or flesh and blood parents.
n409 The number of these legal orphans will increase with the application of ASFA's
mandatory termination of parental
[*778] rights provisions.
n410 These public children will have no family privacy. Their parents will be the
Even children who maintain legal ties to their families may spend significant
time in state care, while some never return home during their childhoods. Like
legal orphans, these other public children, most of the half million children
in foster care, rely on the state to provide basic parenting functions: food,
education, clothing, medical care, shelter, and, hopefully, a sense of home and
family. Unfortunately, these public children do not always receive basic
parenting from the state. Foster children may go hungry, without health care,
without permanent or even long term homes, and they may also suffer physical
and sexual abuse by their state-supported care-givers.
n412 Moreover, the state must assume the parental role of preparing children who
will reach majority in foster care to live independently.
n413 Yet these children who reach majority in foster care are more likely than not
to leave the foster care system dependent and vulnerable, without the skills or
support systems to make homes for themselves.
n414 Thus, children
[*779] removed from their neglectful and abusive homes do not necessarily find a safe
and nurturing harbor, let alone a new family.
In sum, family privacy is elusive for many mothers and children. Some women
must overcome significant financial and social barriers to becoming and being
mothers. Some do not meet dominant norms of motherhood because they are poor,
non-White, not married, or otherwise fail to resemble mothers. Their experience
of public life is not particularly welcome or helpful. On the contrary, it
exposes families to further intervention and ultimate dissolution. With these
public families in mind, I assess the threat of revisionist models and
perspectives in the next subsection.
C. Harms of Diminishing Family Privacy
The preceding subsection helps complete the revisionists' portrayal of family
privacy. This fuller picture holds two important lessons for the revisionists.
First, the state views women through its own biases that frequently equate the
failure to meet mothering ideals with a reason to intervene. Second, the
purpose of this intervention is not to affect the parent's assessment of her
and her families needs and interests. Instead, intervention second guesses, or
directs, the mother's decisions about her own and her children's lives. These
are important lessons because revisionists seek to make families more public by
increasing opportunities and grounds for state-sanctioned intervention that
minimize the more determinate maternal biological connections and maximize
potentially biased standards of maternal conduct.
The remainder of this section explores the disturbing consequences that may
flow from the substitution of less determinate care-giving norms for more
determinate biological norms. As the preceding subsection reveals,
decisionmakers are less likely to defer to parents who do not satisfy
decisionmakers' norms regarding what it means to be a parent. Yet revisionist
standards would give decisionmakers even more discretion to intervene in and
reform families than under current doctrine, thus injecting the state into
[*780] the arguably impermissible role of choosing between different conceptions of
the good life. This intervention will have greater impact on parents,
particularly mothers, who are already more vulnerable to intervention because
they do not look like parents. This result is particularly problematic because
the revisionists would remove liberalism's protection of family privacy while
leaving intact other aspects of liberalism that reinforce bias and material
disparities, which in turn make parents more vulnerable to state intervention.
Under revisionist standards, whoever acts like, or wants to be, a parent is the
parent. Divorced from biology, these standards make the parent-child
relationship even more contingent, subjective, and indeterminate. Defining
parent this way is particularly challenging when there are multiple candidates
who have, or seek to have, relationships with the child. The lack of cultural
and scientific consensus as to optimal caregiving, children's best interests,
and the relative importance of relationships, exacerbates the difficulty in
resolving these disputes.
n415 Standards that seem neutral, natural, or scientific, may in fact simply be
value judgments, frequently arising out of, or constituting, dominant norms of
family and motherhood (for example,
n416 Commentators and decisionmakers who
[*781] embody these norms may not appreciate this insight. Yet families who do not
embody these norms are less likely to survive scrutiny.
n417 The parental rights doctrine's definition of parent, though value-laden and
socially constructed, is more objective (determinable) and more private (less
government) than revisionist definitions.
n418 It is easier to determine who gave birth to a child than who is the truest or
Moreover, both biological mothers and fathers suffer under the new standards
because they dismiss the work that parents, particularly mothers, have
undertaken to become parents. The new standards effectively require parents to
"earn" parenthood again. The parental rights doctrine protects this earned status by
requiring proof of unfitness or consent before persons outside the family can
gain parental status. The revisionists would permit such usurpation on the
grounds that third parties are entitled to be parents, without regard to the
fitness or the consent of the biological parents.
This devaluation of gestation and birth harms mothers, particularly because it
neutralizes motherhood as a biological connection and devalues mothers compared
to non-parents and fathers. Discounting the maternal contributions to
childbearing frees parent-child relationships from sex (in any sense of the
term) because the person (woman) who bears the child is no longer different
from any other
"parent." This new virtual motherhood minimizes women's role in the production of
children and marginalizes the maternal focus of parenting definitions. Instead,
this definition equates actual or prospective post-birth caregivers with
mothers, thereby decreasing the maternal power in relation to the father or any
other current or prospective caregivers. Mothering is no longer different from
fathering and a parent is someone who acts like, or wishes to be, a parent.
These revisionist standards also bind women to constricting social scripts.
n419 Ideological visions of motherhood require that
[*782] women appear to be completely devoted to their children and inhibit viewing
the mother multi-dimensionally and as an individual separate from her child.
Although women who fall outside of these dominant norms are more likely to lose
their maternal rights,
n420 even mothers who meet the norms may lose their status if they deviate from the
ideal of motherhood defined solely by selfless nurturing.
n421 When the measure is a mother's conduct and behavior, rather than bearing and
begetting, she loses the presumption that her choices are best for her child,
while the state gains the power to evaluate whether her choices are good or
selfless enough for the child.
n422 To justify or re-earn their status, mothers will have to live up to certain
idealized standards, perhaps subverting their own values and assessments of
their children's interests.
Moreover, viewing these revisionist perspectives in the context of public
families reveals a largely structural anomaly. Proposed revisions to parental
rights doctrine challenge certain fundamental liberal principles while leaving
other aspects of liberalism in place.
n423 In other words, these largely unchallenged aspects promote or tolerate the
very conditions that make families vulnerable to intervention. The causes and
persistence of class, race, and gender inequalities are much more complex and
fundamental than the tenets of liberal theory. It is clear, however, that
liberalism has not been very effective in overcoming these problems. On the
contrary, American liberal notions of individualism promote individual
responsibility, capitalism, and self interest while resisting community
responsibility, economic justice and altruism.
[*783] remediation of poverty, sexism, and racism has stalled.
n425 Government assistance programs for the poor have practically insured that they
will remain poor.
n426 Racial and other minorities are less likely to have their values represented
through elected officials.
n427 These inequities in jurisprudential, legislative, and political power do not
suggest that greater governmental intervention into families will reflect the
pluralism of the population or that the state will understand, let alone
respect, diverse conceptions of the good life.
n428 Revisionists simply give the state more power to reinforce and replicate
dominant or majoritarian
n429 values and biases (whatever their content may be) at the expense of families
who resist or apparently depart from these values.
[*784] Families with less property and less political or normative dominance will
lose their autonomy, and perhaps dissolve altogether, under a scheme that
dismantles family privacy while preserving or promoting property and power
disparities. Thus, the revisionists' selective approach discounts the
importance of private value production in a way that will disproportionately
affect the most vulnerable and diverse members of the polity. One need not
delve very deeply to see how diminution of parental rights is detrimental to,
or will adversely affect, poor families and particularly poor families of
color. For example, Professor Raymond O'Brien devotes a law review article to
the right of poor children (who are disproportionately of color) to be saved
from their families of origin.
n430 Professor Bartholet also connects poverty, race and inadequate families while
arguing for easier termination of parental rights and normalization of adoption
by, apparently, wealthier, more mainstream families.
This presumptive devaluation of economically disadvantaged families and
families of color contradicts liberal theories supporting family privacy. These
theories view individuals as moral actors who define and create value and
circumscribe governmental authority to restrict individual freedom and define
values in ways that limit this freedom, except, of course, to prevent harm,
protect others, or promote public welfare.
n432 The responsibility for rearing children rests with individuals, usually the
parents, whose right and role is to create and reproduce value in and through
n433 and to rear children in diverse settings that prepare them for life as
n434 Parental rights doctrine's presumption that parental decisions are in their
child's best interests protects diverse values that drive or inform the
[*785] relationship. Coercive state intervention to redefine families according to
state norms subverts the parent's own ideas about the good life for them and
This subversion contradicts both liberal rationales for family privacy -
privacy as protective of individual autonomy and as instrumental to democratic
citizenship. Imposition of state norms interferes with individual
self-definition and reproduction. In the context of the continuum of family
privacy, this imposition will primarily affect value production in poor and
other non-dominant families because they are most vulnerable to surveillance
and intervention. However, as noted above, the state is not sufficiently
representative of economic, cultural, racial, and sexual minority groups and
does not respect those values of minority groups that do not mirror dominant
norms. Thus, increased intervention also undermines the role of these families
in creating independent citizens because intervention would minimize or
eliminate these families as sites of production of values that diverge from
that status quo.
This elimination of non-dominant families is self-perpetuating, as it
undermines the socialization of children who, as adults, may challenge state
norms. These non-dominant families may try to conform but face great challenges
to joining the ranks of the dominant because liberalism has failed to empower,
or to provide adequately for or improve the social and material conditions of,
large numbers of men, women, and children.
n436 In any event, even as norms change over time, they continue to reflect those
who are dominant and deflect those who are not. An example of the contingency
of specific norms and persistence of bias in the child
[*786] welfare context is the categorization of the Irish and Polish people as
separate and inferior
"races" in late nineteenth and early twentieth century New York City.
n437 As other persons of other
"races," particularly African Americans, have filled the places in this system that
European immigrants once occupied, the patterns of intervention remain the
same. Poor families and families who deviate from the dominant ideology must
fight to protect their own integrity.
By supporting parental rights doctrine and by using liberal philosophy to do
so, the Article does not mean to imply that liberalism or the structure of our
government is the best, or even a good, way to achieve equality, justice, or
the good life. Instead, this Article cautions abandonment of the limited
protections liberalism provides family integrity, until we have a system that
is premised less upon biased race, class and gender distinctions and
n438 Increasing the state's role in defining and assessing families within this
system will merely reinforce these inequities. There is no reason to suppose
that the state will value non-dominant families any more under the proposed
standards. On the contrary, these non-dominant families already experience
state intervention pursuant to more (though not very) determinate rules for
intervention. More contingent standards would further compromise the ability of
such families to maintain their integrity and to keep their children out of
substitute care. State rearing of children limits parents' ability to create
and inculcate values. Moreover, this limitation could have a homogenizing
effect on cultural and moral diversity, because it excludes families that do
not meet dominant cultural and moral norms.
Thus, in the absence of a more radical challenge to the prevailing political,
economic, and ideological structure in the United States, we should be cautious
about dismantling autonomy-based protections for individual liberties,
particularly family privacy, that help promote moral and political equality and
counteract the si-
[*787] lencing effects of economic and ideological inequality.
n439 Revisionist standards upset the structure of this liberal democracy because
they do not have
"roots in the language or design of the Constitution."
n440 The language and design of the Constitution, arguably, include the protection
of private value production. Although biases and wealth inequities prevent full
realization of this ideal for all, revisionist standards exacerbate these
inequalities and undermine this fundamental liberal value of moral equality.
These revisionist standards are, therefore, suspect because taking families out
of the realm of privacy reduces autonomy and gives the state power to decide
how to, and who will, rear children. In theory, that power would permit the
majority of the electorate to define families, excluding non-majoritarian ideas
n441 and would be contrary to notions of individual autonomy.
n442 Such selective revisions to liberal theory would be unbalanced and unjust.
Conclusion: The Virtue of Parental Rights Doctrine
The parental rights doctrine is a progressive tool that protects individual
moral liberty and simultaneously retains sufficient flexibility to accommodate
non-marital, non-nuclear family forms. It provides relatively objective,
deferential, and determinate standards that leave to individual
self-determination family creation and, to some extent, definition. Parental
rights doctrine guards
[*788] against governmental or majoritarian decisions about who are acceptable
parents. It also tolerates, and even promotes, diversity because parental
rights afford parents considerable latitude in deciding how to raise their
children. This too protects self determination and limits majoritarian
usurpation and homogenization of value production. Parental rights protections
may not be as important or meaningful to those parents whose values dominant
culture shares. However, such protections are undoubtedly most welcome to, and
needed by, those families who depart from these values or the dominant norms
these values are likely to reflect.
Parental rights doctrine offers principled and fair solutions to many conflicts
about children. Detailed exploration of precisely how parental rights doctrine
accommodates changing family structures is beyond the scope of this Article.
The Article will make explicit, however, what has been implicit in its
exposition of the doctrine and illustrate the doctrine's enduring utility.
Stripped to its core components, the parental rights doctrine, with its mixture
of biological and social connections, is remarkably flexible and responsive to
diverse family formations that both honor and support the role and place of the
family in our constitutional system. The doctrine defines parenthood as a
status that the mother must, and does, earn when she bears and gives birth to
the child. The
"father" correspondingly earns his or her parenthood through connection to the mother
or genetic and nurturing relationship to the child. Thus, parental rights
doctrine does not automatically grant non-nurturing fathers parental status. At
the same time, it recognizes that a domestic, sufficiently nurturing or
supportive horizontal relationship with the
"mother," so far (but not necessarily) evidenced by marriage, may establish parenthood.
The parental rights doctrine - as a logical matter - also does not dictate the
"parents" a child may have.
Decisionmakers and commentators can, and should, resolve intervention questions
within the logical contours of the parental rights doctrine, which permits
diminution or dissolution of parental rights based on parental consent or
n443 Neglect and, to a lesser extent, abuse, are problematic standards that are
extraordinarily contingent on cultural norms of decisionmakers. Many, including
the author, have criticized these standards as class-based
[*789] and racially discriminatory.
n444 In principle, however, the standards permit the state to determine, and take
ameliorative action, when parents fail to provide minimal parental care that
harms or seriously endangers their children.
n445 Lower standards than these essentially replace parental values with
state-created or state-sanctioned values. Reasonable people may disagree about
where a child should attend school or with whom she should live, but parental
rights doctrine defers to the parent's assessment of whether the child's loss
in one area of her life is worth the gain in another, unless the parent is
abusing or neglecting the child.
Parental rights doctrine also tolerates reformation or expansion of the family
when parents consent. Adoption and consensual de facto parent doctrine are
excellent examples of consent-based intervention. Both permit parents to change
the family's contours and hold parents to those decisions. In the consensual
adoption context, parents can place their children into new families or consent
to adoption by a co-or step-parent. The consensual de facto parent doctrine
recognizes that there may be multiple parental figures. When parents invite
another adult into the family to act like a parent, the parent has enlarged the
family - created another parent. De facto parent doctrine permits persons whom
the parents have in fact allowed to parent the child to assert an interest in
having an ongoing relationship with the child, even when the legal parents
subsequently change their minds and seek to exclude the de facto parents.
Our current parent-child relationship standards are important and empowering,
even though they may appear crude to their critics. These standards are
grounded in fundamental values that support constitutional theory and protect
children and families who do not meet dominant norms. This protection is
important to individual families and may help preserve a diverse, independent
and dynamic polity. Moreover, parental rights doctrine is at root matrifocal,
using the maternal acts of gestation and birth as the
[*790] paradigm, or anchor, for parenthood. These standards, albeit imperfect, remain
superior to the less deferential approaches that critics would substitute.
n1. Toni Morrison, Beloved 23 (1987).
n2. See infra notes 287 and 416.
n3. Eric Schmitt, For First Time, Nuclear Families Drop Below 25% of Households,
N.Y. Times, May 15, 2001, at A1.
n4. Now that a majority of all married women are in the workforce, the demographic
dominance of nuclear families with stay-at-home mothers has declined. Michael
Grossberg, Balancing Acts: Crisis, Change, and Continuity in American Family
28 Ind. L. Rev. 273, 296-97 (1995). Moreover, a child born in 1990 reportedly has a fifty percent chance at having
a court determine where and with whom she or he will live.
Id. at 297.
n5. E.g., Defense of Marriage Act,
1 U.S.C.S. 7,
28 U.S.C.S. 1738C (Lexis Supp. 2001) (refusing to recognize non-heterosexual marriage); Annette
R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in
the Child Protection System [An Essay],
48 S.C. L. Rev. 577, 585 (1997) (explaining how social workers, lawyers and judges assess families). The
author includes herself, as well as many of the commentators she cites herein,
within this class of persons with some measure of financial, political and
n6. See infra Section III.B.
n7. This Article does not rely on sociobiological theories that hold biological
parents, particularly mothers, are genetically programmed to provide the best
care for their offspring. See, e.g., Gary S. Becker, A Treatise on the Family
37-38 (1991); John H. Beckstrom, Sociobiology and the Law 81-102, 130-34
(1985). Nor does the Article rely on other theories and studies concluding that
biological parents serve children best. Elizabeth S. Scott
& Robert E. Scott, Parents as Fiduciaries,
81 Va. L. Rev. 2401, 2433-36 (1995) (describing studies). Biological relationships are extremely important to
children and adults, but the author does not base her argument on that opinion
and does not believe that protecting these biological connections necessarily
dictates the particular contours of parental rights doctrine. See Annette R.
Appell, Blending Families Through Adoption: Implications for Collaborative
Adoption Law and Practice,
75 B.U. L. Rev. 997, 1013-20 (1995) (arguing that the importance of biological relationships to adults and
children supports open adoption).
Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992);
Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also
United States v. Morrison, 529 U.S. 598 (2000) (noting, with disapproval, that an expansive view of the Commerce Clause would
permit Congress to regulate family law);
United States v. Lopez, 514 U.S. 549, 564 (1995) (same). Federal law, nevertheless, governs and defines families in at least
three prevalent ways: (1) constitutional protection; (2) individual benefits
(e.g., tax deduction for dependents,
26 U.S.C.S. 151, 152(a)-(b) (Lexis 2000), immigration,
8 U.S.C.S. 1153, 1157 (Lexis 1997
& Supp. 2001), Social Security Survivors Benefits,
42 U.S.C.S. 402 (Lexis 1998
& Supp. 2001)); and (3) benefits to states that treat families according to
federal dictates (e.g., Adoption Assistance and Child Welfare Act,
42 U.S.C.S. 620-29
& 670-79 (Lexis 1998
& Supp. 2001); Temporary Assistance to Needy Families ("TANF"),
42 U.S.C.S. 601. (Lexis 2001); Child Support Recovery Act,
18 U.S.C.S. 228 (Lexis 1993
& Supp. 2001)); see also Jill Elaine Hasday, Federalism and the Family
45 UCLA L. Rev. 1297 (1998) (offering critical analyses of the view that domestic relations are purely
local, and exposing the race-based origins and themes of local control over
domestic relations); Judith Resnik,
"Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts,
66 N.Y.U. L. Rev. 1682, 1721-29 (1991) (listing federal laws that define, govern and affect families).
n9. See, e.g.,
Troxel v. Granville, 530 U.S. 57 (2000);
M.L.B. v. S.L.J, 519 U.S. 102 (1996);
Michael H. v. Gerald D., 491 U.S. 110 (1989);
Parham v. J.R., 442 U.S. 584 (1979);
Caban v. Mohammed, 441 U.S. 380 (1979);
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816 (1977);
Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (plurality opinion);
Stanley v. Illinois, 405 U.S. 645 (1972);
Wisconsin v. Yoder, 406 U.S. 205 (1972);
Prince v. Massachusetts, 321 U.S. 158 (1944);
Meyer v. Nebraska, 262 U.S. 390 (1923); see also Peggy Cooper Davis, Neglected Stories: The Constitution and Family
Values (1997); Hasday, supra note 8, at 1324-57 (illustrating the connection
between the 13th and 14th Amendments and the right to family integrity).
Caban, 441 U.S. at 394 (equal protection);
Yoder, 406 U.S. at 236 (religious freedom);
Stanley, 405 U.S. at 657-58 (procedural due process);
Meyer, 262 U.S. at 399 (substantive due process).
Troxel, 530 U.S. at 57; see also David D. Meyer, The Paradox of Family Privacy,
53 Vand. L. Rev. 527 (2000) (describing the Court's varied levels of review for infringements of these
fundamental rights). Although the importance of families circumscribes
governmental intervention, families are apparently not important enough to
oblige the government to support them or choices about them. See
Harris v. McRae, 448 U.S. 297 (1980) (declining to hold that the government must provide abortion funding for women
who cannot afford medical care);
Dandridge v. Williams, 397 U.S. 471 (1970) (upholding state cap on dependent child welfare benefits). Professor Robin
West discusses more progressive notions of liberty than freedom from
intervention, including governmental obligation to promote the material
conditions for exercise of liberty. Robin West, The Ideal of Liberty: A Comment
on Michael H. v. Gerald D.,
139 U. Pa. L. Rev. 1373 (1991).
n12. The following subsections demonstrate that adult-adult relationships differ
from parent-child relationships, so family privacy in the context of parental
rights doctrine protects parental decision-making regarding the child
(including the decision to have relatives assist in or provide total care for
the child). Family privacy also protects decisions about marriage and
procreation, however, states should not decline to intervene on behalf of
adults just because they are married.
n13. See Paul Finkelman, The Constitution and the Intentions of the Framers: The
Limits of Historical Analysis,
50 U. Pitt. L. Rev. 349 (1989) (discussing the irrelevance and impossibility of determining original intent); Sylvia Law, The Founders on Families, 39 U. Fla. L. Rev. 583 (1987) (arguing that original intent is both indeterminate and anachronistic in the
context of women and family).
n14. I am aware of the anti-communist hysteria that drove the
Meyer and Pierce v. Society of Sisters, 268 U.S. 510 (1925) decisions. E.g., Joan C. Callahan
& Dorothy Roberts, A Feminist Social Justice Approach to Reproduction-Assisting
Technologies: A Case Study on the Limits of Liberal Theory,
84 Ky. L.J. 1197, 1200-1207 (1995-96); Robin West, Rights, Capabilities, and the Good Society,
69 Ford. L. Rev. 1901, 1903 (2001); see, e.g., Barbara Bennett Woodhouse,
"Who Owns the Child?": Meyer and Pierce and the Child as Property,
33 Wm. & Mary L. Rev. 995 (1992), (discussing the ethnocentrism of constitutional family doctrine based on
Anglo-American middle-class nuclear family structures, and the limitations of
liberal legal philosophy). I do not take on any of those issues here. I am
concerned instead with the benefits of this apparently archaic,
biologically-based legal construction of parenthood to people who need its
n15. This Article presumes that liberal philosophy is the predominate theoretical
basis for the United States form of government, or at least that it provides
the predominate theme explaining personal liberties doctrine. See Anita Allen,
Social Contract Theory in American Case Law,
51 Fla. L. Rev. 1, 1-10 (1999) (rehearsing views of the role of liberal social contract theory in early
American political thought and subsequent legal doctrine); Robin West, Taking
104 Harv. L. Rev. 43, 61 (1990) (claiming that the Constitutional drafters largely rejected republicanism);
see also Frank I. Michelman, Possession vs. Distribution in the Constitutional
Idea of Property,
72 Iowa L. Rev. 1319, 1325 (1987) (claiming
"all right-thinking Americans of the founding era were professing republicans[,]" but noting republicanism then was a broad term unified by a theme of public
governance); Daniel T. Rodgers, Republicanism: the Career of a Concept, 79 J.
Am. Hist. 11, 38 (1992) (claiming that in early national history, it appears
that there was no clear understanding of the meaning of republican, and quoting
John Adams' declaration that the term is
"unintelligible"). See generally Thomas L. Pangle, The Spirit of Modern Republicanism 28-127
(1988) (showing that Lockean philosophy dominated early Constitutional theory).
Cf. Jyl J. Josephson, Gender, Families, and State: Child Support Policy in the
United States 3 (1997) (noting that multiple political theories produced the
United States political system, though two themes predominate - protection of
individual rights and democratic rule); Michael J. Sandel, Democracy's
Discontent 6 (1996) (claiming that while republicanism dominated in early
national history and while liberalism dominates now, both have always been
present); James T. Kloppenberg, The Virtues of Liberalism: Christianity,
Republicanism, and Ethics in Early American Political Discourse, 74 J. Am.
Hist. 9 (1987) (noting that Christianity, republicanism and Lockean liberalism
informed revolutionary and early national ideology); David A. J. Richards,
Constitutional Legitimacy and Constitutional Privacy,
61 N.Y.U. L. Rev. 800, 817-18, 842-47 (1986) (describing early constitutional theory as liberal republican).
n16. Michael Grossberg, Governing the Hearth 4-9 (1985); Mary Ann Mason, From
Father's Property to Children's Rights 1-83 (1994). See also Law, supra note
13, at 589-93; Reva B. Siegel,
"The Rule of Love": Wife Beating as Prerogative and Privacy,
105 Yale L.J. 2117, 2122-24 (1996). The household may also have included child apprentices or indentured servants.
Mason, supra, at 30-39. In the antebellum South, the (white) patriarch's
household power and control extended to slaves as well. Hasday, supra note 8,
at nn. 119, 120
& 147. Nevertheless, the actual experiences of many women and families did not
entirely fit this patriarchal model. See Hendrik Hartog, Man and Wife in
America (2000) (describing marital separations in the 19th and early 20th
centuries); Mason, supra, at 50-83 (describing rise in maternal rights in the
19th century); Law, supra note 13, at 594-605 (describing 18th and 19th century
n17. When gestational and genetic relations are split, the biological mother is
referred to as the
"gestational mother" and the
"genetic mother." The Court has not yet faced the question of a gestational mother who is not
genetically related to the child. This Article does not address issue here,
although it will surely arise eventually. R. Alta Charo, And Baby Makes Three -
or Four, or Five, or Six: Redefining the Family After the Reprotech Revolution,
15 Wis. Women's L.J. 231, 243 (2000); Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood:
An Opportunity for Gender Neutrality,
1990 Wis. L. Rev. 297, 316-18.
Lehr v. Robertson, 463 U.S. 248, 260 n.16 (1983) ("The mother carries and bears the child, and in this sense her parental
relationship is clear.") (quoting
Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting)); see also
Tuan Anh Nguyen v. INS, 533 U.S. 53, (2001);
Miller v. Albright, 523 U.S. 420 (1998) (both denying equal gender protection challenges to citizenship rules that
treat as United States citizens children born to female United States citizens,
but require non-marital biological fathers to take additional steps to
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816 (1977).
M.L.B. v. S.L.J., 519 U.S. 102 (1996) (ruling that indigent mother was entitled to free transcripts in a civil
appeal from an adoption court order terminating her parental rights).
Id. at 124. M.L.B. involved a private dispute between divorced parents regarding
stepmother adoption of the noncustodial mother's children. The state's role was
purely judicial. Id. Fifteen years earlier, though, the Court refused to
recognize a per se right to legal representation for indigent parents when the
state itself petitions to terminate their parental status.
Lassiter v. Dept. of Soc. Serv., 452 U.S. 18 (1981).
Caban, 441 U.S. at 389 (ruling that the father was
"fully comparable to ... mother");
Stanley v. Illinois 405 U.S. 645 (1972); see also
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816 (1977) (holding the fact that foster parents nurtured the child is not sufficient to
establish a constitutionally protected parent-child relationship, although
acknowledging that procedural due process might attach).
Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality upholding rights of a man who was married to the mother at the time
of conception and birth to the exclusion of the biological father);
Lehr v. Robertson, 463 U.S. 248 (1983) (requiring a non-marital father to take certain steps to assert his paternity
in order to assert parental rights);
Quilloin v. Walcott, 434 U.S. 246 (1978) (permitting stepparent adoption over the objection of non-marital birth
father). This protection may, in fact, be related more to the ideological
primacy of the monogamous, heterosexual marital relationship, and the sexual
control of women and the preservation of patriarchal control over the family.
As an analytic matter, this protection also derives from the husband's legal
relationship and commitment to the mother, which signifies mutual support
(although that support may not exist in fact).
405 U.S. at 658-59.
441 U.S. 389.
434 U.S. at 247-50.
463 U.S. at 251-52.
Id. at 262.
n29. See, e.g.
Michael H. v. Gerald D., 491 U.S. 110 (1989).
Id. at 132-136 (concurring opinion by Justice Stevens for reasons that the biological
father's right to visit his daughter was properly denied based on the best
interests of the child);
id. at 142-145 (dissenting opinion by Justices Brennan, Marshall, and Blackmun, arguing that
the biological father here established a parent-child relationship worthy of
id. at 159-163 (dissenting opinion by Justice White, arguing that the biological father
should have the opportunity to prove paternity, despite the mother's marriage
to another man).
Baby Richard v. Kirchner, 513 U.S. 994 (1994);
DeBoer v. DeBoer, 509 U.S. 1301 (1993); see also
Santosky v. Kramer, 455 U.S. 745 (1982) (child's relationship with foster parents is subordinate to child's
relationship with fit biological parents);
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816 (1977) (foster parents do not have liberty interest equal to biological parents).
Org. of Foster Families, 431 U.S. at 844-847 (recognizing importance of relationships between foster parents and children,
but declining to give them equal status to birth relations). Although Org. of
Foster Families distinguishes relationships that
"have their origins in an arrangement in which the State has been partner from
the outset," the Court did suggest that adoption might deserve equal legal status to
Id. at 844-45.
Santosky, 455 U.S. at 766-67. This prohibition applies to parents who wish to retain their parental rights.
Parents are free, however, to transfer their parental rights to others for the
purposes of adoption. This Article does not address the status of adoptive
families except to the extent of their legitimacy when formed as a result of
such voluntary transfers or after appropriate hearings that determine parents
are unfit to have any parental status.
n35. See Baby Richard, 513 U.S. at PC;
DeBoer, 509 U.S. at 1301-02 (1993) (Justice Stevens, as Circuit Justice for the Sixth Circuit, denying stay
pending certiorari determination because the Supreme Court was unlikely to
grant certiorari or, if it did, to declare decision unconstitutional: federal
law does not authorize
"unrelated persons to retain custody of a child whose natural parents have not
been found unfit simply because they may be better able to provide for her
future and her education"); see also
O'Connell v. Kirchner, 513 U.S. 1303, 1304 (1995) (Justice Stevens, as Circuit Justice for the Seventh Circuit, denying stay of
state court order to return Baby Richard to his birth father because there was
no federal question). But see
O'Connell v. Kirchner, 513 U.S. 1138 (1995) (Justices O'Conner and Breyer dissenting from denial of stay because state
court's order may have been based on an interpretation of the Federal
Constitution that conflicts with decisions of other courts).
491 U.S. 110 (1989).
n37. Even the Court's cramped abortion jurisprudence reflects this distinction
between male and female biological connections by refusing to permit the
pregnant woman's husband (the potential legal father) to be notified of the
woman's decision to abort.
Planned Parenthood v. Casey, 505 U.S. 835, 895-96 (1992).
Quilloin v. Walcott, 434 U.S. 246 (1978).
Lehr v. Robertson, 463 U.S. 248 (1983).
Michael H., 491 U.S. at 110. One could also read Michael H. and the step-parent adoption cases, Quilloin
and Lehr, as further reflecting a matrifocal definition of parent, for in those
cases, it was the mother's chosen (marital) partner that the Court considered
as, or paved the way to become, the father. That is, those cases in effect
allowed the mothers to choose the father. But see
Caban v. Mohammed, 441 U.S. 380, 394 (1979) (holding that the mother was not permitted to choose her new husband to be the
n41. An in-depth examination of fathers is beyond the scope of this Article,
however, under current definitions, the category of
"father" is more variable than
"mother." Because it includes both genetic and non-genetic paternal relationships to the
child, the category could logically encompass a larger group of fathers than
previously sanctioned. The fathers who have shown a commitment to the mother,
symbolized by marriage, are paradigms for other domestic partners, whether
marital or not, who have shown a commitment to the mother. It is not evident
why marriage in itself should be the only way of establishing non-biological
legal fatherhood, or why
"fathers" must be men. Accord Ruthann Robson, Making Mothers: Lesbian Legal Theory
& The Judicial Construction Of Lesbian Mothers,
22 Women's Rts. L. Rep. 15, 21 (2000) (arguing that treating husbands with no biological relationship to their
wives' children as legal parents and not treating lesbian co-parents as legal
parents violates the Equal Protection Clause). But cf.
Lofton v. Kearney, 157 F. Supp. 2d 1372, (S.D. Fla. 2001) (claiming that the possibility of marriage for heterosexuals,
but not homosexuals, is a constitutionally permissible reason to treat the two
groups differently in the adoption context).
n42. The traditional alignment of marriage with parenthood held that non-marital
fathers were not fathers. Grossberg, supra note 16, at 196-233. The nonmarital
family cases address whether legal benefits could flow between non-marital
parents and their biological offspring.
Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, (1968);
Levy v. Louisiana, 391 U.S. 68 (1968). The only case in which the Supreme Court upheld a distinction regarding
benefits to non-married versus married mothers involved Social Security
survivor benefits that permitted both children and married mothers to receive
benefits through the father, but denied them to non-married mothers, although
the non-marital children could still receive children's benefits.
Califano v. Boles, 443 U.S. 282 (1979). The court based its decision there on the presumptions that non-marital
children would not be unduly disadvantaged because they still received benefits
and unmarried women are less likely to be economically dependent on the father
of their children. Id.
Glona, 391 U.S. at 73;
Levy, 391 U.S. at 72; accord
Tuan Anh Nguyen v. INS, 533 U.S. 53 at 64 (2001) ("Given the proof of motherhood that is inherent in birth itself, it is
unremarkable that Congress did not require" mothers to take further affirmative steps to prove parenthood).
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 169-70 (1972) (holding that worker's compensation statutes cannot distinguish between
marital and non-marital children who are dependent on their father, including a
child who never actually depended on the father because he died pre-birth in a
n46. See, e.g.,
Miller v. Albright, 523 U.S. 420 (1998);
Parham v. Hughes, 441 U.S. 347 (1979);
Lalli v. Lalli, 439 U.S. 259 (1978);
Fiallo v. Bell, 430 U.S. 787(1977);
Trimble v. Gordon, 430 U.S. 762 (1977);
Gomez v. Perez, 409 U.S. 535 (1973);
Labine v. Vincent, 401 U.S. 532 (1971).
n47. See, e.g.,
Matthews v. Lucas, 427 U.S. 495 (1976);
Jimenez v. Weinberger, 417 U.S. 628 (1974); see also
N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (forbidding the state to deny welfare benefits to dependent children living
with unmarried parents). A series of cases striking down statutes of
limitations against non-marital children seeking to establish their father's
paternity to obtain child support illustrates the Court's unwillingness to let
children lose the opportunity to require their genetic fathers to act like
fathers by obtaining paternity and support orders.
Clark v. Jeter, 486 U.S. 456 (1988);
Pickett v. Brown, 462 U.S. 1 (1983);
Mills v. Habluetzel, 456 U.S. 91 (1982).
n48. The label
"parental rights" is used rather than
"family rights" because the former is more accurate. These rights are exercised by parents,
not children and not, necessarily, a combination of the two. Certainly, parents
may determine how much deference they would give to their children's choices.
Children, however, do not have rights equal or superior to their parents. For
example, children cannot veto parental relinquishment for adoption and
similarly cannot, absent parental unfitness, seek termination of parental
rights. Indeed, because of the legal disability and developmental limitations
of children, parents frequently make the family decisions.
Parham v. J.R., 442 U.S. 584, 602 (1979) (stating that
"parents possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions"). See generally Kenneth Karst, The Freedom of Intimate Association,
89 Yale L.J. 624, 642-43 (1980). Moreover, calling these
"family" rights masks the legal and factual difference between adult relationships and
parent-child relationships. See infra text accompanying notes 70-74.
n49. Once these decisions become sufficiently non-relational, the parent ceases to
have parental right. Annette R. Appell
& Bruce A. Boyer, Parental Rights vs. Best Interests of the Child: A False
Dichotomy in the Context of Adoption,
2 Duke J. Gender L. & Pol'y 63, 75 (1995); see also Carolyn Wilkes Kaas, Breaking up a Family or Putting It Back Together
Again: Refining the Preference in Favor of the Parent in Third-Party Custody
37 Wm. & Mary L. Rev. 1045, 1076-78 (1996) (noting that the Supreme Court protects parental rights only when parents have
undertaken the corollary parental responsibilities); Scott
& Scott, supra note 7 at 2440 (linking parental performance to parental
Santosky v. Kramer, 455 U.S. 745, 759-60 (1982) (children do not have an interest in terminating their relationship with their
Parham, 442 U.S. at 600 (holding that a child's interest in not being committed to a psychiatric
"is inextricably linked with the parents' interest in and obligation for the
welfare and health of the child"); see also Scott
& Scott, supra note 7, at 2437-38 (explaining this presumption and the
interrelationship of parent-child interests).
M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that even after a mother has been proven unfit by clear and
convincing evidence she has a right, reserved theretofore only for criminal
defendants, to a free copy of the records for appeal);
Santosky, 455 U.S. 745 (even parents who abused or neglected their children have a right to
substantial process before termination of parental rights);
Stanley v. Illinois 405 U.S. 645 (1972) (holding that putative father has a right to hearing before a state can remove
n52. Naomi R. Cahn, Models of Family Privacy,
67 Geo. Wash. L. Rev. 1225, 1241 (1999); Martha Albertson Fineman, What Place for Family Privacy?,
67 Geo. Wash. L. Rev. 1207, 1213-14 (1999); see also, John Locke, Two Treatises of Government 348 (Second Treatise 58)
(Peter Laslett ed., Cambridge Univ. Press 1960) ("The Power, then, that Parents have over their children, arises from that Duty
which is incumbent on them, to take care of their Off-spring during the
imperfect state of Childhood."); Kaas, supra note 49 at 1072 (stating that, the
"analysis of parental rights is actually a consideration of the scope of the
protection afforded to the parent-child relationship"); David A. J. Richards, The Individual, the Family, and the Constitution: A
55 N.Y.U. L. Rev. 1, 28 (1980) (stating that the scope of parental rights is defined by responsibilities to
the child); Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality:
Gender-Neutrality and the Perpetuation of Patriarchy,
95 Colum. L. Rev. 60, 88 (1995) ("A
"parental right' should not be viewed as pertaining to an individual per se, but
only to an individual-in-relationship with a dependent child."). Others promote a relational conception of the parent-child relationship but
view parental rights as individual entitlements. E.g., Katherine Bartlett,
98 Yale L.J. 293, 294-98 (1988); Martha Minow
& Mary Lyndon Shanley, Relational Rights and Responsibilities: Revisioning the
Family in Liberal Political Theory and Law, 11 Hypatia 4, 23 (1996); Scott
& Scott, supra note 7, at 2407-18.
n53. Decisional privacy refers to the doctrine protecting intimate decision-making,
including marriage, birth control, and parental decision-making for their
children, from coercive intervention by the state.
n54. E.g., Akhil Reed Amar
& Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to
105 Harv. L. Rev. 1359 (1992) (comparing the status of children to slaves); James G. Dwyer, Parents'
Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights,
82 Cal. L. Rev. 1371, 1412-15 (1994) (comparing children's status to slaves and more generally to property);
Woodhouse, supra note 14, at 1042 (comparing children's status to property);
Barbara Bennett Woodhouse,
"Out of Children's Needs, Children's Rights": The Child's Voice in Defining the Family,
8 B.Y.U. J. Pub. L. 321, 326 (1994) (comparing parent-child relationships to slavery).
n55. E.g., Sandel, supra note 15, at 108-15; Janet L. Dolgin, The Fate of
Childhood: Legal Models of Children and the Parent-Child Relationship,
61 Alb. L. Rev. 345 (1997); Dwyer, supra note 54;
Meyer, supra note 11, at 548-54. In another context, Professor Katharine Baker has
recognized this distinction between intimate adult relationships ("horizontal") and adult-child relationships ("vertical") and advocated two different legal models for these relationships. Katherine
K. Baker, Property Rules Meet Feminist Needs: Respecting Autonomy By Valuing
59 Ohio St. L.J. 1523, 1523 (1998).
Griswold v. Connecticut, 381 U.S. 479 (1965);
Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 262 U.S. 390 (1923). This privacy, associated with intimacy, is distinct from privacy associated
with property or control. Jeb Rubenfeld, The Right of Privacy,
102 Harv. L. Rev. 737, 782-87 (1989) (discussing differences regarding privacy interests in Lochner and Meyer lines
of cases). It also may have directly reflected the court's moral judgment
regarding the sanctity of marriage, rather than a respect for individual
autonomy. Sandel, supra note 15, at 96-98; Janet L. Dolgin, The Family in
Transition: from Griswold to Eisenstadt and Beyond,
82 Geo. L.J. 1519, 1544 (1994).
Eisenstadt v. Baird, 405 U.S. 438 (1972).
Planned Parenthood v. Casey, 505 U.S. 835 (1992).
Turner v. Safley, 482 U.S. 78 (1987);
Zablocki v. Redhail, 434 U.S. 374 (1978);
Boddie v. Connecticut, 401 U.S. 371 (1971);
Loving v. Virginia, 388 U.S. 1 (1967).
n60. Dolgin, supra note 56, at 1553-58.
n61. See Cahn, supra note 52, at 1230-40 (describing and distinguishing three types
of constitutional privacy: marital, parent-child, and sexual decision-making);
Anne C. Dailey, Constitutional Privacy and the Just Family,
67 Tul. L. Rev. 955, 981 (1993) (characterizing individual and family privacy as
"subdoctrines" of constitutional privacy); Rubenfeld, supra note 56, at 749 (distinguishing
Fourth Amendment privacy from substantive limits on state power to intrude on
n62. See Dailey, supra note 61, at 981 ("Family privacy, far from being instrumental to or even compatible with
individual privacy, is deeply antithetical to it."). But see Karst, supra note 48, at 642-43 (characterizing all of these
intimate or family rights as associational but recognizing a difference between
parent-child and adult-adult association); Minow
& Shanley, supra note 52 (advocating that law regarding intimate associations be
viewed as relational); Radhika Rao, Reconceiving Privacy: Relationships and
45 UCLA L. Rev. 1077, 1102-07 (1998) (distinguishing between relational rights (right to connect with others,
including adults) and individual rights ("right to be left alone")).
n63. See Martin Guggenheim, A Paradigm for Determining the Role of Counsel for
64 Fordham L. Rev. 1399, 1407 (1996) ("Children are by definition persons in need of adult caretakers ... .") (quoting Joseph Goldstein, et al., Before the Best Interests of the Child 122
(1979)). Of course, the category of
"child" itself is problematic because of the wide range of development and dependency
persons experience between birth and the age of eighteen.
"Child" also masks the wide variety of material and social conditions children
experience relating to gender, class, race, culture and national origin. In
"child" is a problematic category over time and place. See, e.g., Janet E. Ainsworth,
Re-Imagining Childhood and Reconstructuring the Legal Order: The Case for
Abolishing the Juvenile Court,
69 N.C.L. Rev. 1083, 1091-1104 (1991) (describing changing social constructions of child in Western culture, and
"who is classified as a child, and what emotional, intellectual, and moral
properties children are assumed to possess - has changed over time in response
to changes in other facets of society."); Dolgin, supra note 55 (describing changing legal constructions of
childhood); Jamil S. Zainaldin, The Emergence of a Modern American Family Law:
Child Custody, Adoption, and the Courts, 1796-1851,
73 Nw. U. L. Rev. 1038, 1047-52 (1979) (describing the source and development of western construction of childhood as
a distinct and special stage); see also Elizabeth S. Scott, The Legal
Construction of Adolescence,
29 Hofstra L. Rev. 547 (2000) (describing the different treatment of adolescents in various areas, such as
medical care, voting, drinking, and criminal activities). This Article does not
undertake the daunting and much needed task of particularizing children as a
category. Instead, the Article treats children as a category defined by their
relationship to parent, occasionally making crude distinctions between children
at various ends of the developmental spectrum.
n64. The balance of power between the two may be unequal, and one person may in
fact be dependant on the other. But that does not make the dependent person a
Casey, 505 U.S. at 898 (holding that a woman's autonomy regarding her own pregnancy precludes a
husband from gaining an interest in the pregnancy).
Id. at 887-98; see also Christyne L. Neff, Woman, Womb, and Bodily Integrity,
3 Yale J.L. & Feminism 327, 352-53 (1991) (discussing pregnancy as a matter of bodily integrity over which others should
not have decision-making authority); Rao, supra note 62, at 1105-11
(distinguishing between relational rights and bodily integrity rights, such as
abortion and contraception, but including adult-adult relationships as
n67. See, e.g., Siegel, supra note 16 (describing the historical doctrine of
marital unity that included the right of husbands to beat their wives, and
explaining the persistence of this power differential even as domestic violence
prohibitions have outlawed such status-based conduct); Reva Siegel, Home as
Work: The First Women's Rights Claims Concerning Wives' Household Labor,
103 Yale L.J. 1073, 1211-17 (1994) [hereinafter Siegel, Home] (describing husbands' control of family assets and
wives' continuing economic dependence due, in part, to devaluation of household
work); Reva Siegel, Reasoning from the Body: A Historical Perspective on
Abortion and Questions of Equal Protection,
44 Stan. L. Rev. 261, 319-23 (1992) [hereinafter Siegel, Reasoning] (describing the role that the wifely duty to
her husband to bear and raise children played in limiting women's access to
abortion); see also discussion of feminist critique of privacy infra text
accompanying notes 305-24.
n68. Barbara Bennett Woodhouse, Hatching the Egg: A Child Centered Perspective on
14 Cardozo L. Rev. 1747, 1828-29 (1993).
n69. Helpful here is Professor Yochai Benkler's distinction between capacity for
autonomy (competence and ability to
"evaluate options and consequences of actions") and conditions for autonomy (the factual circumstances that limit or enable
self-direction). Yochai Benkler, Siren Songs and Amish Children: Autonomy,
Information, and Law,
76 N.Y.U. L. Rev. 23, 33 n.32 (2001). Adults generally have the capacity and the conditions to be autonomous, though
each may vary from adult to adult. Young children lack the capacity and
conditions for self-direction, although they should develop both as they
mature. Teenagers may fall someplace in between child and adult in the areas of
capacity and conditions for autonomy. See Scott, supra note 63, at 591-92
(describing limitations in a teenager's ability to appreciate consequences).
Professor Benkler, however, may not agree with my simplistic formulation, for
he seems to assume that teenagers are autonomous. See, e.g., Benkler, supra, at
46 (allowing parents to keep their children out of high school
"violates the autonomy of children").
n70. Michelle Oberman, Minor Rights And Wrongs,
24 J.L. Med. & Ethics 127, 132 (1996); Scott, supra note 63, at 555-56, 591-92. These well-accepted limitations have
not, however, persuaded lawmakers who have in many states established laws
permitting or mandating children ten years old and younger to be tried as
adults. Id. at 557.
n71. Critical domestic violence literature in particular recognizes the material
and emotional complexity of leaving. E.g., Donna Coker, Rotating Centers,
Expanding Frontiers: LatCrit Theory and Marginal Intersections, Piercing Webs
of Power: Identity, Resistance, and Hope In LatCrit theory and Praxis,
33 U.C. Davis L. Rev. 1009 (2000); Barbara Fedders, Note, Lobbying for Mandatory-Arrest Policies: Race, Class,
and the Politics of the Battered Women's Movement,
23 N.Y.U. Rev. L. & Soc. Change 281 (1997).
n72. See Martha Minow, Rights for the Next Generation: A Feminist Approach to
9 Harv. Women's L.J. 1, 18 (1986) ("Conceptually and practically, children in our society are not autonomous
persons but instead dependants who are linked legally and daily to adults
entrusted with their care.").
n73. Guggenheim, supra note 63, at 1405-08. This does not mean that children are
not rights holders in other contexts. E.g.
Suter v. Artist M., 503 U.S. 347 (1992) (assuming without deciding that children may bring suit pursuant to
42 U.S.C.S. 1983);
Bellotti v. Baird, 443 U.S. 622, 643-644 (1979) (holding that pregnant girls have a limited right to obtain an abortion
without parental consent);
Tinker v. Des Moines Indep. Cmty. Sch. Dist. 393 U.S. 503 (1969) (holding that children have a limited right to free speech in school setting);
In re Gault, 387 U.S. 1 (1967) (holding that children have a right to certain procedural protections in
juvenile delinquency proceedings);
Brown v. Bd. of Ed., 347 U.S. 483 (1954) (holding that children have a right to equal protection); see also Minow,
supra note 72, at 18-21 (advocating that children's rights be framed in the
context of children's dependency, relationships, and connections); Lee E.
Teitelbaum, Children's Rights and the Problem of Equal Respect,
27 Hofstra L. Rev. 799 (1999) (discussing difference between children's needs-based and autonomy-based
rights); Woodhouse, supra note 54, at 327-30 (advocating recognition of
children's needs-based rights).
& Boyer, supra note 49, at 75-76. Even children's rights rhetorician Barbara
Woodhouse recognizes that children's rights are not autonomy-based, but are
defined by adult conceptions and interpretations of children's needs.
Woodhouse, supra note 54, at 328-29; see also Teitelbaum, supra note 73
(distinguishing between adult autonomy-based and children's needs-based
n75. Arguably the children benefit from parental decision-making and autonomy
absent abuse or neglect, but the children are not positive rights-holders in
Santosky v. Kramer, 455 U.S. 745, 759-60 (1982);
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816, 845 (1977).
Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975);
Breed v. Jones, 421 U.S. 519 (1975);
Tinker, 393 U.S. 503 (1969);
Gault, 387 U.S. 1 (1966).
Gault, 387 U.S. at 41 (holding that due process requires child and parents to be notified of the
child's right to counsel in certain juvenile delinquency proceedings); Model
Rules of Prof'l Conduct R. 1.2, 1.8(f), 1.14 (2001) (establishing that an
attorney must follow to the extent possible a minor client's direction
regardless of who pays the attorney's bill).
Planned Parenthood v. Casey, 505 U.S. 835, 899-900 (1992); see also
Carey v. Population Servs. Int'l, 431 U.S. 678 (1977). These limited rights are constitutional in nature and follow adult
constitutional rights. They are, however, distinct from statutory rights or
limitations on parental rights arising out of the state's parens patriae role.
For an argument that the teenage abortion decisions do not grant children
rights, but instead merely replace parental control over children's medical
treatment with state control, see Martin Guggenheim, Minor Rights: The
Adolescent Abortion Cases, Hofstra L. Rev. (forthcoming 2002).
Casey, 505 U.S. at 899-900 (upholding a minor's right to seek judicial bypass of parental consent to
abortion). Interestingly, girls who have not reached majority are legally
competent in most states to consent to the adoption of their children. Jennifer
& Annette Appell, Minor Mothers and Consent to Adoption: An Anomaly in Youth
Law. 5(1) Adoption Q. (forthcoming 2001). The philosophical and jurisprudential
tensions that arise when parental decisions conflict with children's
procreational and procedural rights are beyond the scope of this Article. For
some discussions about these conflicts, see generally Robert A. Burt, The
Constitution of the Family,
1979 Sup. Ct. Rev. 329; Dailey, supra note 61; Robert B. Keiter, Privacy, Children, and Their Parents:
Reflections On and Beyond the Supreme Court's Approach,
66 Minn. L. Rev. 459 (1982);
Richards, supra note 52.
n81. Minow, supra note 72, at 8-14, 18-21 (describing history, current treatment,
and mixed rationales behind children's rights); Scott, supra note 63, at 566-68
O'Connell v. Kirchner, 513 U.S. 1303 (1995) (denying a young child a stay of court orders returning him to his birth
DeBoer v. DeBoer, 509 U.S. 1301 (1993) (denying a young child stay of court orders returning her to her birth
parents). But see George H. Russ, Through the Eyes of a Child,
"Gregory K.": A Child's Right to Be Heard,
27 Fam. L. Q. 365 (1993) (describing a case involving his foster son's petition to terminate his own
mother's rights). On the other hand, adolescents usually must consent to their
own adoption. Joan Hollinger, 1 Adoption Law
& Practice 2.08, at 2-76.1 (2000).
n83. See Rhonda Gay Hartman, Adolescent Autonomy: Clarifying An Ageless Conundrum,
51 Hastings L.J. 1265 (2000) (arguing that adolescents are and should be treated legally as autonomous);
Locke, supra note 52, at 346 (Second Treatise 55 (noting that parental control
over children diminishes as children grow up)).
n84. The references throughout this Article to
"biological parent" may refer to persons who have attained parental status through legally valid
and completed adoptions. For purposes of this paper adoptive parents are
presumed to would stand on the same footing as other de jure (biological and
Santosky v. Kramer, 455 U.S. 745 (1982);
Stanley v. Illinois 405 U.S. 645 (1972).
Lehr v. Robertson, 463 U.S. 248 (1983);
Quilloin v. Walcott, 434 U.S. 246 (1978).
n87. See Stephen Gilles, On Educating Children: A Parentalist Manifesto,
63 U. Chi. L. Rev. 937, 954 (1996) ("Rather than prescribing the best diet or the best style of parenting, we police
the extremes."); see also Naomi R. Cahn, Reframing Child Custody Decisionmaking,
58 Ohio St. L.J. 1, 6 (1997) (noting that meeting the designation as parent determines the deference to the
relationship); Kay P. Kindred, God Bless the Child: Poor Children, Parens
Patriae, and a State Obligation to Provide Assistance,
57 Ohio St. L.J. 519, 525-27 (1996) (providing a succinct rehearsal of parental rights and parens patriae
Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (holding that,
"the state has a wide range of power for limiting parental freedom and authority
in things affecting the child's welfare").
Parham v. J.R., 442 U.S. 584 (1979);
Wisconsin v. Yoder, 406 U.S. 205 (1972);
Prince, 321 U.S. 158;
Meyer v. Nebraska, 262 U.S. 390 (1923).
"government" are used interchangeably to refer to federal and state (geopolitical
organizations) legislative, judicial or administration action.
Meyer, supra note 11, at 545-48 (discussing balancing between parental rights and
governmental protection of child welfare).
Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (O'Connor, J., plurality) (discussing that
"there will normally be no reason for the State to inject itself into the
private realm of the family to further question the ability of [a fit] parent
to make the best decisions concerning the rearing of that parent's children"); see
Reno v. Flores, 507 U.S. 292, 304 (1993) (noting that the best interests of the child is not grounds for intervening in
the parent-child relationship).
M.L.B. v. S.L.J., 519 U.S. 102 (1996);
Santosky v. Kramer, 455 U.S. 745 (1982);
Stanley v. Illinois 405 U.S. 645 (1972).
Santosky, 455 U.S. 745;
Caban v. Mohammed, 441 U.S. 380 (1979).
Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986) (holding that relational privacy doctrine does not extend to consensual sex
between two men). Indeed, some observers suggest that the Court has not broadly
extended privacy even to parental rights.
Meyer, supra note 11, at 545-48; Lee E. Teitelbaum, Family History and Family Law,
1985 Wis. L. Rev. 1135, 1157 (1985).
530 U.S. 57.
n97. All Supreme Court Justices but Justice Scalia agreed that the Constitution
protects parental rights.
Troxel, 530 U.S. at 65 (Justice O'Connor, Chief Justice Rehnquist, Justice Ginsburg, and Justice
id. at 77 (Souter, J., concurring);
id. at 80 (Thomas, J., concurring);
id. at 86-88 (Stevens, J., dissenting);
id. at 95 (Kennedy, J., dissenting).
Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 262 U.S. 390 (1923).
Troxel, 530 U.S. at 65-67 (O'Connor, J., plurality);
id. at 77 (Souter, J., concurring);
id. at 80 (Thomas, J., concurring, although holding open the possibility that the Court
might overrule that line of cases);
id. at 86-87 (Stevens, J., dissenting);
id. at 95 (Kennedy, J., dissenting).
id. at 92 (Scalia, J., dissenting); John Hart Ely, The Wages of Crying Wolf: A Comment
on Roe v. Wade,
82 Yale L.J. 920, 937-43 (1973).
n101. See e.g.,
United States v. Morrison, 529 U.S. 598 (2000);
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000);
Printz v. United States, 521 U.S. 898 (1997);
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
n102. Mark E. Brandon, Family at the Birth of American Constitutional Order,
77 Tex. L. Rev. 1195, 1226-30 (1999);
Richards, supra note 52, at 6-15.
n103. Martha Albertson Fineman, Intimacy Outside of the Natural Family: The Limits
23 Conn. L. Rev. 955, 961-62 (1991); see also William A. Galston, Expressive Liberty, Moral Pluralism, Political
Pluralism: Three Sources of Liberal Theory,
40 Wm. & Mary L. Rev. 869, 874 (1999) (discussing state and family in liberal democracy as defined by early 20th
century Supreme Court privacy cases).
n104. Commentators have also searched for a unifying theme for privacy. E.g.,
Dolgin, supra note 55;
Meyer, supra note 11, at 535-36; Rubenfeld, supra note 56.
n105. This refers primarily to the liberal influence on early American political
theory that valued personal freedom, tolerance, and justice, espoused most
influentially perhaps by Locke and his adherents. Steven M. Dworetz, The
Unvarnished Doctrine: Locke, Liberalism, and the American Revolution 65-96
(1990); Brandon, supra note 102, at 1227; Kloppenberg, supra note 15. Cf.
Richards, supra note 15, at 842-43 (characterizing this philosophy as a republican conception
of self government). This value of individual autonomy might be traced to the
notion of inalienable - natural - rights that precede positive law. Brandon,
supra note 102, at 1227-30; see also
Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (noting that decisional privacy is a right
"older than the Bill of Rights"); 5 Frederick Copleston, A History of Philosophy 128-30 (Image Books 1985)
(1959) (stating that Locke's theoretical construct of the state of nature
established individual liberty as pre-political); Sandel, supra note 15, at
30-39 (describing the development of concepts of natural law, encompassing
notions of individual freedom justifying the colonial rebellion and the framing
of the constitution); accord Scott
& Scott, supra note 7, at 2407 ("Parental rights were understood to be grounded in natural law"). Others suggest autonomy-based rights are political, not prepolitical. See
Bruce A. Ackerman, Social Justice in the Liberal State 5-6 (1980) (arguing that
rights are political and liberalism is better understood as a political account
of power distribution, not as a social contract or a method of preserving
natural rights); Rubenfeld, supra note 56, at 804-05 (arguing that privacy is a
political, not natural, right necessary to democracy). Whatever autonomy's
philosophical home, the pursuit and protection of it are part of our
constitutional theory. For more complex and complete accounts of early American
political theory, see Dworetz, supra; Sandel, supra note 15; Brandon, supra
note 102 (describing the role of family in early American political theory);
Finkelman, supra note 13; Paul Finkelman, Affirmative Action for the Master
Class: The Creation of the Proslavery Constitution,
32 Akron L. Rev. 423 (1999); Kloppenberg, supra note 15;
Richards, supra note 52, at 8, 14-19 (describing themes of autonomy undergirding the
n106. Brandon, supra note 102, at 1227-31; David A. J. Richards, Liberal Political
Culture and the Marginalized Voice: Interpretive Responsibility and the
American Law School,
45 Stan. L. Rev. 1955, 1957-62 (1993); West, supra note 15, at 52-53. Historically, and even currently, other
governmental roles include protection of a way of life for some people. See
Sandel, supra note 15, at 94-96 (tracing earlier notions of privacy that were
based on the state's interest in a certain morality); Finkelman, supra note 105
at 423 (noting that the Constitution was written in large part to protect a
very valuable form of property in the late 18th Century, slavery, which, of
course, came at the expense of the freedom of enslaved persons). Although
notions of liberalism and individual autonomy seem to have driven much of the
decisional privacy doctrine in the latter part of the 20th Century, notions of
the state or the majority as arbiters of moral values (the good life) appear to
be on the rise. See
Planned Parenthood v. Casey, 505 U.S. 835, 882-87 (1992);
Bowers v. Hardwick, 478 U.S. 186, 196 (1986); see also West, supra note 15, at 54-60 (describing the Supreme Court's move
away from liberal protection of individual non-majoritarian rights and toward a
more republican notion of positive, majoritarian rights).
n107. E.g., Rubenfeld, supra note 56, at 784 (arguing that privacy is the
"fundamental freedom not to have one's life ... determined by a ... normalizing
state"); West, supra note 15, at 46 (stating that
"individual freedom is the primary, if not the only, moral end of political
organization"). Cf. Sandel, supra note 15, at 103 ("The image of the person as a freely choosing, unencumbered self has only
recently come to inform our constitutional practice.").
n108. See Brandon, supra note 102, at 1227-28; Rubenfeld, supra note 56, at 805; see
also Galston, supra note 103, at 901 (discussing liberalism's limitations on
the state's power to mold individuals).
n109. This assertion presumes, of course, that there is an inherent constitutional
liberty interest in family integrity. See Brandon, supra note 102, at 1227-34
(arguing that although the Constitution does not explicitly provide for family
protection, it is an institution, like other explicitly protected institutions
(press, religion, private property) that enable political autonomy or
independence from the state); Rubenfeld, supra note 56, at 804 (noting that
privacy, including family integrity, is a constitutional right because the
Constitution creates democracy). But see, Ely, supra note 100 (arguing that the
Constitution does not support general privacy rights).
n110. Although both sets of theories offer a positive and empowering picture of
families, family privacy has also served historically to disempower women and
children. See infra, Part II.D. In addition, decisional privacy doctrine has
not served women well in preserving their families against custodial and
economic challenges. Martha Albertson Fineman, The Neutered Mother, the Sexual
Family, and Other Twentieth Century Tragedies 180-81 (1995); see West, supra
note 11, at 1385-86; see also Catharine A. MacKinnon, Reflections on Sex
Equality Under Law,
100 Yale L.J. 1281, 1310-11 (1991) (discussing privacy in protecting women's freedom to choose).
n111. Brandon, supra note 102, at 1226-27; Dailey, supra note 61, at 958-59; Bruce
C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy -
Balancing the Individual and Social Interests,
81 Mich. L. Rev. 463, 473-84 (1983). Public family theories overlap with republican notions of the family as
producer of good citizens. See Josephson, supra note 15, at 17-18 (describing
republican approaches to family). Depending on the strand of republicanism, the
family's public role may authorize state intervention to insure inculcation of
specific, publicly-defined values in children. Id. at 18-19.
n112. See, e.g.,
Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (noting that parents'
"primary function and freedom include preparation for obligations the state can
neither supply nor hinder"); Maxine Eichner, Square Peg in a Round Hole: Parenting Policies and Liberal
59 Ohio St. L.J. 133, 170-74 (1998) (arguing that families teach children to subordinate personal preferences for
the greater good).
n113. Brandon, supra note 102, at 1227; Dailey, supra note 61, at 1021-22; see also
Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (noting that
"the fundamental theory of liberty upon which all governments in this Union
repose excludes any general power of the State to standardize its children");
Meyer v. Nebraska, 262 U.S. 390, 410-02 (1923) (criticizing state law for seeking to
"foster a homogenous people with American ideals"). But see
Plyler v. Doe, 457 U.S. 202, 221 (1982) (noting that public education is considered a primary means of inculcating
fundamental democratic values and preparing citizens for effective
participation in government). Public versus private education raises complex
issues regarding preparing children for autonomous adulthood in a liberal state
and the nature of autonomy itself. See, e.g., Richard Arneson
& Ian Shapiro, Democratic Autonomy and Religious Freedom: A Critique of
Wisconsin v. Yoder, in Democracy's Place 137 (Ian Shapiro ed., 1996); Benkler,
supra note 69 (each asserting that excessive parental value production - as in
the case of the Amish parents in Yoder who kept their teenagers out of school -
inhibits children's autonomy). This Article does not address with specificity
the area of parental versus public education production of values. Nor does it
take on the deeper issues regarding the nature of self that drive liberal
conceptions of autonomy.
n114. Brandon, supra note 102, at 1227; Dailey, supra note 61, at 1021-23.
n115. Dailey, supra note 61, at 1022-23; see also Brandon, supra note 102, at 1227 ("This capacity in turn presumes that people possess, at a minimum, intellectual
and ethical resources independent from the ruler or state."); William A. Galston, The Legal and Political Implications of Moral Pluralism,
57 Md. L. Rev. 236, 236-40 (1998) (suggesting that family autonomy protects value pluralism, a central idea in
Richards, supra note 52, at 28.
Davis, supra note 9, at 168; see also Baker, supra note 55, at 1541-42; Karst, supra note
48, at 635-37;
Richards, supra note 52, at 28.
n118. Peggy Cooper Davis, Contested Images of Family Values: The Role of the State,
107 Harv. L. Rev. 1348, 1349 (1994); see also
Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977) ("It is through the family that we inculcate and pass down many of our most
cherished values, moral and cultural."); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and
1 Yale J.L. & Feminism 7 (1989) (arguing that relationships are central to the formation of individual
Davis, supra note 9, at 242-43; see also
Davis, supra note 118, at 1369-72 (noting that Supreme Court jurisprudence has failed to
make explicit this connection, instead hinging rulings protecting choice and
family autonomy on the social and political roles of the family).
n120. Karst, supra note 48, at 632-33.
Davis, supra note 118, at 1371-73.
Davis, supra note 9, at 9; Karst, supra note 48, at 629-47.
n123. Disagreeing with the idea that families are autonomous or pre-political, many
commentators argue that the state is deeply involved in the definition and
control of the family. E.g.,
Meyer, supra note 11, at 556-57; Frances Olsen, The Myth of State Intervention in the
Family, 18 U. Mich. J.L. Reform 835, 837 (1985).
n124. Discrimination refers to the use decision-making based on values regarding
race, class, morality, religion, sexual orientation and the like. Discretion
refers to decision-making without determinate rules that grants greater
latitude to the decision-maker to assess different outcomes. If one of the main
purposes of family privacy is to promote private value production, then rules
that permit the state to choose parents based on its own values or to
discriminate may well curb private values.
n125. Contrast this to the rules for ruling class families in Plato's Republic which
would have the state determine where children are reared. 1 Frederick
Copleston, A History of Philosophy 229-33 (Image Books 1985) (1946).
n126. See Howard B. Eisenberg, A
"Modest" Proposal: State Licensing of Parents,
26 Conn. L. Rev. 1415 (1994) (advocating for state examination and licensing of would-be parents).
n127. Our current standards are not natural but are based on judgments that the
birth or biological connection makes parents particularly willing and suitable
to raise children. It seems a more benign judgment than other tools used to
define families. The government's coercive removal of Native American children
from their families and tribes to foster homes and government boarding schools
reveals the personal and cultural destructiveness of discretionary
decisionmaking regarding who should raise children. Jose Monsivais, A Glimmer
of Hope: A Proposal to Keep the Indian Child Welfare Act of 1978 Intact, 22 Am.
Indian L. Rev. 1, 2-3 (1997); see also Twila L. Perry, Race and Child
Placement: The Best Interests Test and the Cost of Discretion,
29 J. Fam. L. 51 (1990-91) (discussing the tendency of judges and social workers to make
presumptive and biased decisions regarding placement and adoption of children).
n128. See Appell
& Boyer, supra note 49, at 78-82 (describing the lack of social consensus
regarding what is best for children); see also John E. Coons et al., Deciding
What's Best for Children, 7 Notre Dame J.L. Ethics
& Pub. Pol'y 465 (1993) (describing the inherently value-laden and subjective
task of determining what is best for children).
n129. See infra, part III.C.
n130. Autonomy suggests the right to make decisions without interference from the
state. See Fineman, Intimacy Outside of the Natural Family: The Limits of
Privacy, supra note 103, at 966; Teitelbaum, supra note 73, at 802.
n131. See Benkler, supra note 69, at 46-47 (arguing that if children are not
autonomous, then parental control must arise out of stewardship, not parental
Richards, supra note 52, at 36 (criticizing family privacy as promoting
"absolute right of parents to control their children"); Teitelbaum, supra note 73, at 810 (noting that parental control over
"cannot be reconciled with liberal rights theory"); West, supra note 11, at 1385 (discussing cramped or conservative notions of
liberty that do not consider private oppression).
n132. See, e.g., Ackerman, supra note 105, at 146-48 (suggesting desirability of
greater limitations on parental control over children); Dolgin, supra note 56,
at 1557-58 (stating that children as independent rights holders are at odds
with parental authority); Woodhouse, supra note 14, at 1040-44 (analogizing
parental rights to property rights). Contra Gilles, supra note 87, at 959-60
(arguing that just as adults are autonomous because they have incentives to act
in their own best interests, parents should control children because parents
have incentives to act in their children's best interests).
n133. Some commentators view autonomy not as something children have, but instead as
something they will have, and that potentiality should guide decision-makers to
insure children will have tools to live autonomous lives. See e.g., Arneson
& Shapiro, supra note 113, at 158-63.
Davis, supra note 9, at 248; Gilles, supra note 87, at 962 ("the proposition that general custody, control of, and responsibility for the
child lies with the child's parents stands as a fixed point in the thinking not
only of the Supreme Court, but also of most liberal political theorists.").
n135. See Karen Czapanskiy, Interdependencies, Families, and Children,
39 Santa Clara L. Rev. 957, 970-71 (1999); Teitelbaum, supra note 73, at 821-23.
n136. See, U.S. Census Bureau, Living Arrangements of Children 10-15 (2001)
(describing the prevalence of extended family households in the United States);
Elizabeth M. Iglesias, Rape, Race, and Representation: the Power of Discourse,
Discourses of Power, and the Reconstruction of Heterosexuality,
49 Vand. L. Rev. 869, 925-27 (1996) (describing extended kin relations and network of Latin families); Carol B.
& Linda M. Burton, Kinscripts: Reflections on Family, Generation, and Culture,
in Mothering: Ideology, Experience, and Agency 33, 33-44 (Evelyn Nakano Glenn
et al. eds., 1994) (describing extended kin networks in African American
communities). This Article's reference to parents as decisionmakers masks the
cultural contingency of lines of nurture and authority in child rearing. See
Jane Collier et al., Is There a Family? New Anthropological Views, in
Rethinking the Family: Some Feminist Questions 31 (Barrie Thorne
& Marilyn Yalom eds., 1992) (describing cultural and temporal diversity of
family structures). Fictive and actual kin frequently rear children through
informal and perhaps tacit agreement by the parent. See The Urban Institute,
New Federalism: National Survey of America's Families 2 (2001) (noting that
relatives provide care for 1.3 million children in the United States as a
result of private, as opposed to child protective agency, arrangements); U.S.
Census Bureau, supra, at 3 (noting that in 1996, four percent of United States
children lived with neither parent. In African-American families, eight percent
of children did not live with either parent. In Native American families, the
number was six percent). For purposes of this Article, these arrangements are
treated as manifestations of parental choice to delegate or forego day-to-day
child rearing decisions and value production to kin.
n137. Bartlett, supra note 52, at 303. Professor David Meyer suggests that when the
family is unified, then intervention should be curtailed, but when there is a
disunity of rights or interests, then intervention should be easier.
Meyer, supra note 11, at 555. However this scheme begs a series of questions regarding who
decides when there is disunity; i.e., when children have a voice beyond their
parent's; when or under what standards the arbiter should determine there is
disunity; and, similarly, once that arbiter has decided there is disunity, what
the standards are for deciding whose rights or interests prevail.
n138. Annette R. Appell, Decontextualizing the Child Client: The Efficacy of the
Attorney-Client Model For Very Young Children,
64 Fordham L. Rev. 1955, 1957-58 (1996); Appell
& Boyer, supra note 49, at 78-82; Bartlett, supra note 52, at 303; Martin
Guggenheim, Counsel for Children,
97 Mich. L. Rev. 1488, 1507-08 (1999) (book review). Values regarding what is best for a child drives adult
decision-making. Determining and weighing values, however, is a private, not
public matter, best left to parents rather than the state. Galston, supra note
115, at 238-39; Rubenfeld, supra note 56, at 792.
n139. See infra text accompanying notes 404-14.
n140. See Gilles, supra note 87, at 965-72 (arguing for parental, rather than
government or majoritarian, control of value production in children).
n141. See Arneson
& Shapiro, supra note 113, at 138 (religious indoctrination); Dwyer, supra note
54, at 1435 (religious indoctrination); Scott
& Scott, supra note 7, at 2446 (stating that divorce weakens the family
structure and promotes individualized values); Barbara Bennett Woodhouse, Of
Babies, Bonding, and Burning Buildings: Discerning Parenthood in Irrational
81 Va. L. Rev. 2493 (1995) [hereinafter Woodhouse, Irrational Action] (failure to consent to children's
adoption); Barbara Bennett Woodhouse, The Dark Side of Family Privacy,
67 Geo. Wash. L. Rev. 1247, 1256 (1999) [hereinafter Woodhouse, Family Privacy] (arguing that the state should
"social and legal expectations" to educate parents in their responsibilities).
& Scott, supra note 7, at 2412-13; Woodhouse, supra note 68, at 1809-12. At
least two proponents of the model were motivated by the Supreme Court's
promotion of the parents' religious values over the presumed secular interests
of the children in
Wisconsin v. Yoder, 406 U.S. 205 (1972). See Arneson
& Shapiro, supra note 113, at 138-39; Dwyer, supra note 54, at 1383-90.
n143. See, e.g., Arneson
& Shapiro, supra note 113; Dwyer, supra note 54; Scott
& Scott, supra note 7; Woodhouse, Irrational Action
& Family Privacy, supra note 141; Woodhouse, supra note 68. These commentators
vary in the content and specificity of proposals for change and in their views
of what children's interests are, but they are united in their opposition to
status-based parental rights. Compare Scott
& Scott, supra note 7, at 2418 (advocating laws that promote child-centered
parental decisions) with Arneson
& Shapiro, supra note 113, at 156-57 (the state should limit parental decisions
that threaten children's future autonomy), Dwyer, supra note 54, at 1429
(permitting state intervention that would be good for the child), and
Woodhouse, Irrational Action, supra note 141, at 2505-06 (arguing that the law should protect children's
n144. See generally, Arneson
& Shapiro, supra note 113; Dwyer, supra note 54; Scott
& Scott, supra note 7; Woodhouse, Irrational Action
& Family Privacy, supra note 141; Woodhouse, supra note 68.
& Shapiro, supra note 113, at 156-71; Scott
& Scott, supra note 7, at 2474;
Woodhouse, Irrational Action, supra note 141, at 2507. Apparently, Professors Elizabeth and Robert Scott would not
significantly modify current doctrine, but instead recharacterize the
parent-state balance of power regarding children from state as protector of
dependant children to state as definer and arbiter of interests. See Scott
& Scott, supra note 7, at 2438-39 (casting child labor prohibitions, education
mandates, and minor drinking, driving and marriage rules as analogous to
conflict of interest rules applicable in fiduciary contexts). Professors Scott
and Scott would, moreover, sanction greater state monitoring of children
through physical and psychological evaluations. Id. at 2441. They do not,
however, suggest standards for interpreting the results of those tests.
n146. See Arneson
& Shapiro, supra note 113, at 156-57; Dwyer, supra note 54, at 1432-35; Scott
& Scott, supra note 7, at 2418;
Woodhouse, Irrational Action, supra note 141, at 2504-05. Professors Scott and Scott claim their vision of parents
as fiduciaries is largely descriptive of current law. Scott
& Scott, supra note 7, at 2453.
& Shapiro, supra note 113, at 149-57; Dwyer, supra note 54, at 1429-30; Scott
& Scott, supra note 7, at 2418-19;
Woodhouse, Irrational Action, supra note 141, at 2500-01. The fiduciary model is particularly concerned with
preserving children's future interests in being autonomous, which may be
synonymous with rejecting their parents' values. Arneson
& Shapiro, supra note 113, at 156; Dwyer, supra note 54, at 1430.
n148. Dwyer, supra note 54, at 1432-33;
Woodhouse, Irrational Action, supra note 141, at 2504-05.
& Shapiro, supra note 113, at 156-57; Scott
& Scott, supra note 7, at 2431;
Woodhouse, Irrational Action, supra note 141, at 2504.
& Scott, supra note 7, at 2442; see Woodhouse, supra note 141, at 1256; see also
& Shapiro, supra note 113, at 154-56 (arguing that the Amish parents in
Wisconsin v. Yoder were serving their own and their community's religious needs
at the expense of their children's religious freedom).
n151. E.g., Arneson
& Shapiro, supra note 113, at 158-62 (maximizing a child's opportunities for an
"open future," generally by promoting secular education); Dwyer, supra note 54, at 1429, 1433
(continuing care, protection, guidance by a single set of parents, educational
opportunity, and medical care); Scott
& Scott, supra note 7, at 2437-39 (discussing broad social consensus about the
best interests of the child);
Woodhouse, Irrational Action, supra note 141, at 2501-08 (preserving affectional attachments).
& Shapiro, supra note 113, at 158-71 (arguing that children must be free to
develop critical thinking skills, but parents should be free to make choices
that might limit children's future adult career options); Dwyer, supra note 54,
at 1430 (noting that parents must justify decisions based on the child's
desires and future interests); Woodhouse, supra note 14, at 1042 (criticizing
parental right to refuse to send children to school or to consent to adoption
when children are in the care of others).
n153. Compare Scott
& Scott, supra note 7, at 2443-45 (state should be more deferential in intact
families, but less when interests are more likely to conflict), with Dwyer,
supra note 54, at 1376, 1429 (arguing parents have no legal grounds to resist
state intervention except by asserting the child's interests to prohibit
unhelpful state intervention).
n154. For example, Arneson and Shapiro favor religious freedom. Arneson
& Shapiro, supra note 113, at 154 ("As a fiduciary, the parent is bound to preserve the child's own future
religious freedom."). Professors Dwyer and Woodhouse expect the state to define and protect the
child's presumed desires or best interests. Dwyer, supra note 54, at 1433-35;
Woodhouse, Irrational Action, supra note 141, at 2504-05.
n155. As a case in point, Arneson and Shapiro define children's interests in
reference to the
"state's interests in the production of a citizenry able to participate in its
& Shapiro, supra note 113, at 157; see also Dwyer, supra note 54, at 1432-33
(noting that parents would substitute their judgment for what the child would
rationally want). Professors Elizabeth and Robert Scott present a more nuanced
approach that promotes laws which strengthen the parent-child relationship and
defer to parental assessments of the child's interests. Scott
& Scott, supra note 7, at 2415-18, 2430-31.
n156. This theory is no doubt shaped by the influential series of books on the best
interests of children, in which Joseph Goldstein, Anna Freud, and Albert J.
Solnit articulated and popularized a psychological theory that children's
relationships with their care-givers should not be disturbed or disrupted.
Joseph Goldstein, et al., Beyond the Best Interests of the Child (1973)
[hereinafter Beyond the Best Interests] and Before the Best Interests of the
Child (1979) [hereinafter Before the Best Interests]. According to the theory,
"psychological parent" is the real parent - the most important relationship the child has, and
disturbing that relationship harms the child. A
"psychological parent" is
"one who, on a continuing, day-to-day basis, through interaction, companionship,
interplay, and mutuality, fulfills the child's psychological needs for a
parent, as well as the child's physical needs." Beyond the Best Interests, supra, at 98. For critiques of the psychological
parent theory, see Susan Brooks, Therapeutic Jurisprudence and Preventive Law
in Child Welfare Proceedings, A Family Systems Approach, 5 Psych., Publ. Pol'y,
& L. 951, 957-58 (1999); see also Symposium, Helping Families in Crisis: the
Intersection of Law
22 N.Y.U. Rev. L. & Soc. Change 295 (1996); Symposium, The Impact of Psychological Parenting Theory on Child Welfare
12 N.Y.U. Rev. L. & Soc. Change 485 (1983-1984).
n157. E.g., Marcus T. Boccaccini
& Eleanor Willemsen, Contested Adoption and the Liberty Interest of the Child,
10 St. Thomas L. Rev. 211 (1998); Margaret F. Brinig
& F.H. Buckley, Parental Rights and the Ugly Duckling,
1 J.L. & Fam. Stud. 41, 56-67 (1999);
Meyer, supra note 11, at 575-83; Suellyn Scarnecchia, A Child's Right to Protection from
Transfer Trauma in a Contested Adoption Case,
2 Duke J. Gender L. & Pol'y 41 (1995);
Woodhouse, Irrational Action, supra note 141. Yet the psychological parenting theory is less determinative when
state authorities decide to remove children from their parents. Peggy Cooper
Davis, The Good Mother: A New Look at Psychological Parent Theory,
22 N.Y.U. Rev. L. & Soc. Change 347, 348 (1996); see also Martin Guggenheim, Somebody's Children: Sustaining the Family's Place
in Child Welfare Policy,
113 Harv. L. Rev. 1716, 1732-33 (2000) (describing studies that find insufficient resources are devoted to keeping
children with their families of origin).
Davis, supra note 157, at 363-64 (arguing that psychological parenting theory privileges
relationships with the psychological parent and discounts the child's other
attachments); Marsha Garrison, Parents' Rights vs. Children's Interests: The
Case of the Foster Child,
22 N.Y.U. Rev. L. & Soc. Change 371, 394-95 (1996) (noting psychological parent advocates support non-biological connections, but
not biological ones).
n159. Exceptions include the Adoption and Safe Families Act of 1997 and Professor
Elizabeth Bartholet, both promoting termination of parental rights whether or
not the child has significant affective relationships with others. See infra,
text accompanying notes 193-208.
n160. Cahn, supra note 87, at 5.
n162. Bartlett, supra note 52, at 244.
"Unfitness" is used throughout this Article to refer to parental failings regarding their
children that rise to the level of abuse or neglect that has harmed or might
harm the child. The Article contrasts parental fitness standards to the
"best interests of the child" that is not based on harm or parental fitness, but instead on what is best for
n164. A.L.I., Principles of the Law of Family Dissolution: Analysis and
Recommendations, Part I, 2.03(1), 2.04, 2.09, 2.10, 2.13 (Tentative Draft No.
Minn. Stat. Ann. 257.022(2b) (West 1998
& Supp. 2001);
Nev. Rev. Stat. Ann. 125C.050(2)-(3) (Michie Supp. 1999);
Wis. Stat. Ann. 767.245(1) (West 2001) (each granting persons who have established a de facto
parent-child relationship standing to seek visitation); see also
Ind. Code Ann. 31-9-2-35.5 (Michie Supp. 2001) (defining de facto custodian as person who has been
primary care-giver and financial supporter of child and excluding foster
Ind. Code Ann. 31-14-13-2, 31-17-2-8 (Michie 1999
& Supp. 2001) (permitting consideration of awarding custody to de facto
custodian in paternity and custody proceedings);
Or. Rev. Stat. 109.119(3) (1999) (granting persons who have established a de facto parent-child
relationship standing to seek visitation and custody). Many other states have
statutes that permit third parties to seek custody (including visitation) based
on prior custody of the child, e.g.,
Colo. Rev. Stat. 14-10-123(1) (2001);
Tex. Fam. Code Ann. 102.003(a)(9) (Vernon 1996
& Supp. 2002), exceptional circumstances that could include substantial
relationship to the child, e.g.,
Ariz. Rev. Stat. Ann. 25-415(G)(1) (West 2000);
Wis. Stat. Ann. 767.24(3)(a) (West 2001), or harm to the child if the relationship were discontinued, e.g.,
Cal. Fam. Code 3041 (West 1994). New Jersey requires that de facto parents be given notice and an
opportunity to object to an adoption.
N.J. Stat. Ann. 9:3-46(b) (West 1993
& Supp. 2001).
n166. See generally,
Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) (funding for stepparent);
Bryan v Bryan, 645 P.2d 1267 (Ariz. Ct. App. 1982) (funding for stepparent);
In re Hirenia C., 22 Cal. Rptr. 2d 443 (Cal. Ct. App. 1993) (funding for lesbian co-parent);
In re Martha M., 251 Cal. Rptr. 567 (Cal. App. Ct. 1988) (funding for heterosexual co-parent);
Laspina-Williams v. Laspina-Williams, 742 A.2d 840 (Conn. Super. Ct. 1999) (funding for lesbian co-parent);
Caban v. Healey, 634 N.E.2d 540 (Ind. Ct. App. 1994) (funding for stepparent);
Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980) (funding for stepparent after wife-mother's death);
Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979) (funding for stepparent);
S.F. v. M.D., 751 A.2d 9 (Md. Ct. Spec. App. 2000) (denying visits on the basis of the best interest of the child, but granting
standing to lesbian co-parent);
E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999), cert. denied,
528 U.S. 1005 (1999) (funding for lesbian co-parent);
In re LaChapelle, 607 N.W.2d 151 (Minn. Ct. App. 2000) (funding for lesbian co-parent);
Cavanaugh v. deBaudiniere, 493 N.W.2d 197 (Neb. Ct. App. 1992) (funding for stepparent);
V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000), cert. denied,
531 U.S. 926 (2000) (funding for lesbian co-parent);
A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992) (funding for lesbian co-parent);
J.A.L. v. E.P.H, 682 A.2d 1314 (Pa. Super. Ct. 1996) (funding for lesbian co-parent);
Karner v. McMahon, 640 A.2d 926 (Pa. Super. Ct. 1994) (funding for stepparent);
Spells v. Spells, 378 A.2d 879 (Pa. Super. Ct. 1977) (funding for stepparent);
Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000);
Utah ex rel. J.W.F., 799 P.2d 710 (Utah 1990) (funding for stepparent);
In re H.S.H.K., 533 N.W.2d 419 (Wis. 1995), cert. denied sub nom,
Knott v. Holtzman, 516 U.S. 975 (1995) (funding for lesbian co-parent); see also
In re Olivia J., 101 Cal. Rptr. 2d 364 (2000) (holding that lesbian co-parent can obtain visitation through guardianship
statute). The New Jersey Supreme Court construed
"parent" in the state parental custody statute to apply to de facto parents.
V.C., 748 A.2d at 547-48. Fewer states will award primary custody to the co-parent over the legal
parent. David L. Chambers
& Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the
33 Fam. L.Q. 523, 539 (1999); see also
Gestl v. Frederick, 754 A.2d 1087 (Md. Ct. Spec. App. 2000) (holding that lesbian de facto parent has standing but must prove exceptional
circumstances to obtain custody);
LaChapelle, 607 N.W.2d at 151 (awarding sole physical custody to the birth mother and joint legal custody to
her and her ex-partner, the lesbian co-parent). But see
Custody of C.C.R.S., 892 P.2d 246 (Colo. 1995) (upholding denial of return of child to mother who initially consented to
child's placement before birth and did not request return of the child for over
n167. A.L.I., supra note 164, at 2.03(1) (defining
"parent" as legal and de facto parent), 2.04 (granting certain de facto parents party
status), 2.09 (allocating custody to
"parents"), 2.10 (allocating decisionmaking responsibility among
"parents"), 2.13 (listing factors court should consider in allocating custody and
decisionmaking among parents, such as violence, drug use or child abuse), 2.14
(listing factors court should not consider, such as race, gender, sexual
orientation and earning capacity).
n168. A.L.I., supra note 164, at 2.21(1). This is consistent with current doctrine.
& Polikoff, supra note 166, at 539; see also,
Gestl, 754 A.2d 1087 (holding lesbian de facto parent has standing but must prove exceptional
circumstances to obtain custody);
LaChapelle, 607 N.W.2d 151 (awarding sole physical custody to the birth mother and joint legal custody to
her and her ex-partner, the lesbian co-parent). However, when de facto parents
have had sole physical custody, courts may be willing to award full custody to
the de facto parent rather than removing the child to the mother. See
Ind. Code Ann. 31-14-13-2.5(d)
& 31-17-2-8.5(d) (Michie Supp. 2001) (stating that best interests of the child
governs decision to grant de facto custodian custody);
Or. Rev. Stat. 109.119(3)(a) (1999) (applying best interests of the child test to custody, visitation and
guardianship requests of persons whom court determines has established
emotional ties creating a parent-child relationship);
C.C.R.S., 892 P.2d 246 (affirming award of custody to persons with whom the mother placed the child
immediately after birth and the following six months);
In re A.D.C., 969 P.2d 708 (Colo. Ct. App. 1998) (awarding custody to grandparents who had cared for the child with the
mother's consent for four months and holding that the best interests of the
child standard applies in custody disputes between legal parents and
non-parents who can make the statutory showing that the that they have had the
physical care of a child for six months or more).
n169. The ALI defines a de facto parent as:
an adult, not the child's legal parent, who for a period that is significant in
light of the child's age, developmental level, and other circumstances, (i) has
resided with the child, and (ii) for reasons primarily other than financial
compensation, and with the consent of a legal parent to the formation of a de
facto parent relationship or as a result of a complete failure or inability of
any legal parent to perform caretaking functions, regularly has performed (i) a
majority of the caretaking functions for the child, or (ii) a share of
caretaking functions at least as great as that of the parent with whom the
child primarily has lived.
A.L.I., supra note 164, 2.03(1)(b) (emphasis added).
n170. Id. Case law frequently articulates the consent of the parent to the formation
of the relationship as a factor or standard when defining de facto parent.
E.N.O., 711 N.E.2d at 891 (defining de facto parent as someone who shares parental responsibilities
"with the consent and encouragement of the legal parent");
V.C., 748 A.2d at 552 (the intent of the legal parent to have the third party serve a parental role
is critical to the analysis of whether some one is a de facto parent);
J.A.L., 682 A.2d at 1321 (holding that a person has standing in loco parentis when he or she, inter
"developed a relationship with the child as a result of the participation and
acquiescence of the natural parent... .");
Rubano, 759 A.2d at 975 (citing parental consent to and fostering of the relationship as an element in
determining whether the de facto parent may obtain visitation rights);
H.S.H.K., 533 N.W.2d at 421 (listing as one element of de facto parent test
"that the [legal] parent consented to, and fostered, the petitioner's formation
and establishment of a parent-like relationship with the child").
n171. A.L.I., supra note 164, 2.03(1)(b).
n172. Even then, de facto parents frequently hold a secondary parental status that
does not necessarily place the de facto parent on the same footing as a legal
father or mother who would be entitled to custody or visitation based on a best
interests of the child analysis. Instead, de facto parents, having established
de facto status, are more likely to have to prove detriment to the child should
contact discontinue, and de facto parents are rarely entitled to or awarded
custody over a legal parent. See generally, supra note 166.
748 A.2d at 552 (stating that if the legal parent
"wishes to maintain that zone of privacy she cannot invite a third party to
function as a parent to her child and cannot cede over to that third party
parental authority the exercise of which may create a profound bond with the
n174. Notwithstanding a heterosexist fatherhood analogy, and perhaps underscoring
the persistence of the social construction of gender, at least one female
co-parent has obtained legal recognition of her parenthood through statutory
provisions for determining
"the existence or nonexistence of a mother and child relationship."
R.I. Gen. Laws 15-8-26 (Lexis 2000). The Rhode Island statute was construed by Rubano to grant
jurisdiction and standing to lesbian co-parent seeking visitation after breakup
of the women's relationship.
759 A.2d at 966-970. The court thus characterized the second female parent as a mother rather than
as a father. The court may have been unwilling to make the cognitive leap of
identifying a woman
"father." Instead, the court reinforced the social connection between woman and mother
and subverted the biological connection between mother and child. This is
particularly noteworthy since the Uniform Parentage Act, after which Rhode
Island's statute was modeled, recognizes only
"natural" mothers who have given birth to the child. Unif. Parentage Act (1973) 3(1), 9B
U.L.A. 391 (2001).
"Natural" fatherhood may be established simply by receiving the child into one's home
and openly holding the child out as one's natural child. Id., 4(a)(4), 9B U.L.A
n175. One definition of unfitness is the
"complete failure or inability of any legal parent to perform caretaking
functions." A.L.I., supra note 164, 2.03(1)(b).
Nev. Rev. Stat. Ann. 125C.050(2)-(3) (Michie Supp. 1999);
Or. Rev. Stat. 109.119 (1999) (noting that both statutes grant certain rights to de facto parents
without requiring consent of the parents); Alexandra Dylan Lowe, Parents and
Strangers: The Uniform Adoption Act Revisits the Parental Rights Doctrine,
30 Fam. L.Q. 379, 384-85 (1996); Janet Leach Richards, The Natural Parent Preference Versus Third Parties:
Expanding the Definition of Parent,
16 Nova L. Rev. 733, 760 (1992); Woodhouse, supra note 14, at 1042.
O'Connell v. Kirchner, 513 U.S. 1303 (1995) (Baby Richard);
DeBoer v. DeBoer, 509 U.S. 1301 (1993) (Baby Jessica); Wendy Anton Fitzgerald, Maturity, Difference, and Mystery:
Children's Perspectives and the Law,
36 Ariz. L. Rev. 11, 72-84 (1994); Gilbert A. Holmes, The Tie That Binds: The Constitutional Right of Children to
Maintain Relationships with Parent-Like Individuals,
53 Md. L. Rev. 358, 376-77 (1994); Suellyn Scarnecchia, Who is Jessica's Mother? Defining Motherhood Through
3 Am. U. J. Gender Soc. Pol'y & L. 1, 1-2 (1994); Woodhouse, supra note 54, at 336-37 (each addressing one or both of these
n178. E.g., Fitzgerald, supra note 177, at 102-05; Holmes, supra note 177, at 397
(contemplating visitation, not full custodial relationships, between children
and psychological parents).
n179. E.g., Holmes, supra note 177, at 362, 395; Scarnecchia, supra note 157, at
Woodhouse, Irrational Action, supra note 141. Although Fitzgerald does not develop this argument, she does advocate
that de facto families be protected to the same degree as birth families.
Fitzgerald, supra note 177, at 68.
n180. Fitzgerald, supra note 177, at 22-23, 106-108; Lowe, supra note 176, at
385-86; Scarnecchia, supra note 177, at 11-12; see also Holmes, supra note 177,
at 362 (arguing that the law should afford children an independent liberty
interest in their relationships with both
"legal parents and nonlegal parents"). Holmes, like Fitzgerald, is particularly sensitive to the
multiple-attachments children have to parents and parental figures so he would
not supplant one parent or set of parents with another. Holmes, supra note 177,
at 407 ("Protecting the child's liberty interest mandates the continuation of the
child-parent relationships through visitation, unless visitation would harm the
child."). Holmes would, however, supplant parents' rights with children's rights. Id.
n181. Scarnecchia, supra note 157, at 45-46.
Richards, supra note 176, at 758; Scarnecchia, supra note 177, at 11; see also Holmes, supra
note 177, at 395-97 (stating that parent-like individuals could assert claims
on behalf of the child). Professor Scarnecchia does not argue for the unbridled
standing of nonparents. Instead, she would limit the right to petition for
custody to cases where the child is not in an
"intact biological home" and the petitioners have actual custody of the child. Scarnecchia, supra note
177, at 11. Some states permit custodial care-givers to retain custody based on
the best interests of the child (and thus disregarding parental presumption)
over the parent's objection. See, e.g.,
Ind. Code Ann. 31-14-13-2.5, 31-17-2-8.5 (Michie Supp. 2000) (permitting award of custody to de facto
custodian based on the bests interests of the child). Indiana does, however,
take into account parental consent or acquiescence to third party custody. See,
Ind. Code Ann. 31-17-2-8.5 (Michie Supp. 2000) (requiring clear and convincing proof that the child has
been cared for by de facto custodian and consideration of parental intent in
placing child with de facto custodian);
In re Huber, 723 N.E.2d 973, 975 (Ind. Ct. App. 2000) (requiring proof of parental unfitness, long acquiescence in the child living
in the care of others or voluntary relinquishment of the child before applying
best interests of the child to custody disputes between parents and third
parties); see also
In re C.C.R.S., 892 P.2d 246 (Colo. 1995);
In re A.D.C., 969 P.2d 708 (Colo. Ct. App. 1998) (both construing
Colo. Rev. Stat. 14-10-123(1) (2000) to permit award of custody to physical custodians based on the best
interests of the child).
n183. Lowe, supra note 176, at 386-87;
Woodhouse, Irrational Action, supra note 141, at 2510-18.
n184. Lowe, supra note 176, at 386-87. Accord
Woodhouse, Irrational Action, supra note 141, at 2505-18 (referring to decisionmaking based on the child's
attachments and the child's voice).
n185. In the thwarted adoption cases, the birth mothers consented to adoption just
after birth. The biological fathers were not be married to the mother or did
not have a chance to support the child. In these cases, one could argue that
the biological father is not or should not be a legal father. Nevertheless,
parental rights doctrine grants the biological father the first chance to fully
earn parenthood, unless (arguably) the mother is married to another man.
n186. See, e.g., Lowe, supra note 176, at 384-85 (describing the flaws of
privileging biology over psychology).
Smith v. Org. of Foster Families for Quality & Reform, 431 U.S. 816, 846 (1977) (holding that foster parent liberty interest would interfere with parents'
n188. Unif. Adoption Act, 9 U.L.A. 1 (1994); Adoption and Safe Families Act of 1997,
Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified in scattered sections of 42
U.S.C.); Elizabeth Bartholet, Nobody's Children (1999). Every state has amended
its abuse and neglect and termination of parental rights statutes to reflect
ASFA's mandates to promote termination of parental rights and adoption. U.S.
General Accounting Office, States' Early Experiences Implementing the Adoption
and Safe Families Act 6 (GAO/HEHS-00-1, December 1999); see also National
Conference of State Legislatures, at
http://www.ncls.org/programs/cyf/howelfare.htm (surveying all state ASFA
related provisions). ASFA requires states to modify their state law and
practice in order to receive federal matching funds for child welfare service.
42 U.S.C.S. 622 (Lexis 1998);
42 U.S.C.S. 671(a), 675(5) (Lexis 1999
& Supp. 2001).
n189. Unif. Adoption Act (1994) 2-408(e)-(f), 2-409(e)-(f), 9 U.L.A. 60-63 (1999);
750 Ill. Comp. Stat. Ann. 50/20 (West 1999
& Supp. 2001) (providing that after an adoption petition has been denied or
"the court shall promptly conduct a hearing as to the temporary and permanent
custody of the minor child who is the subject of the proceedings ... .");
Vt. Stat. Ann. tit. 15A, 2-408 (Michie 1989
& Supp. 2000). Nevada has a set of puzzling adoption and termination of parental
rights statutes that could be construed to permit a custody hearing after a
Nev. Rev. Stat. Ann. 127.165, 128.160 (Michie 1998) (each stating, after describing methods to set aside an
adoption or termination of parental rights, that
"after a petition for adoption has been granted, there is a presumption ... that
remaining in the home of the adopting parent is in the child's best interest"). Even without explicit statutory authority, some courts will conduct custody
hearings after thwarted or failed adoptions.
Guardianship of Zachary H., 86 Cal. Rptr. 2d 7, 15 (Cal. Ct. App. 1999);
In re C.C.R.S., 892 P.2d 246 (Colo. 1995); cert. denied,
116 S. Ct. 118 (1995);
Matter of Adoption of a Child, 705 A.2d 1233 (N.J. Super. Ct. App. 1998).
n190. See Unif. Adoption Act (1994) 2-408, 9 U.L.A. 62 (1999) (a finding that the
parent is not unfit or does not consent to the child's adoption
"is not tantamount to a determination that the child must be placed in that
parent's custody" (emphasis omitted)).
n191. Unif. Adoption Act (1994) 2-406(f)(2), 408(e), 409(e), 9 U.L.A. 58-62 (1999)
(providing for determination whether return to the mother would be detrimental
to the child when the mother revokes her adoption consent after a failed
attempt to have the father's rights terminated and an adoption decree entered).
State law has long permitted courts to conduct best interests of the child
hearings when a mother seeks to revoke her consent when there are no other
barriers to the adoption. E.g.,
Haw. Rev. Stat. 578-2(f) (Michie 1999) (stating that the best interests of the child determines whether
the mother may revoke her consent);
N.Y. Dom. Rel. Law 115-b(3)
& (4) (McKinney 1999) (same); Unif. Adoption Act (1994) 2-408(f), 2-409(f),
3-506, 3-704, 9 U.L.A. 61, 63, 90, 96-96 (1999) (providing for determination of
whether it is in the best interests of the child to be placed with the father
who does not consent to the adoption or is not found to be unfit);
Graves v. Graves, 288 So.2d 142 (Ala. 1973);
Martin v. Ford, 277 S.W.2d 842 (Ark. 1955);
Adoption of Duarte, 40 Cal. Rptr. 671 (Cal. Ct. App. 1964);
Kathy O. v. Counseling & Family Services, 438 N.E.2d 695 (Ill. 1982);
In re D., 408 S.W.2d 361 (Mo. 1966);
In re Adoption of Baby C., 480 A.2d 101 (N.H. 1984). For a recent example of application of this doctrine after the vacation of a
fraudulent adoption, see
In re Adoption of E.L., 733 N.E.2d 946 (Ill. App. 2000).
n192. See Cahn, supra note 87, at 22-23 (noting that in these situations, courts
explicitly or implicitly redefine parent to include thwarted adoptive parents
in order to avoid the parental preference doctrine and apply instead the best
interests of the child standard).
n193. Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified in scattered sections of
42 U.S.C.). ASFA amends and significantly departs from the Adoption Assistance
and Child Welfare Act (the
"AACWA"), Pub. L. No. 96-272 (codified at
42 U.S.C. 620
& 670 (1994)). The AACWA, based on parental rights doctrine, created financial
incentives for the states to develop and use programs to keep children at home
with their families whenever reasonably possible and for those children who are
removed, to return them home or when return home is not possible place them
permanently elsewhere through adoption or prepare them for independent living.
See Foster Children in the Courts (Mark Hardin ed., 1983); Martin Guggenheim,
The Foster Care Dilemma and What to Do about It: Is the Problem That Too Many
Children Are Not Being Adopted Out of Foster Care or That Too Many Children Are
Entering Foster Care,
2 U. Pa. J. Const. L. 141, 141-43 (1999) (both providing a description and history of AACWA).
n194. See generally Dorothy Roberts, Is There Justice in Children's Rights?: The
Critique of Federal Family Preservation Policy,
2 U. Pa. J. Const. L. 112 (1999). The term
"articulated" is used because, although federal child protection policy has, since at least
1980, featured families of origin as the preferred resource for children, the
federal government failed to provide leadership in the form of explanation or
enforcement of rules designed to do so. See Naomi R. Cahn, Children's Interests
in a Familial Context: Poverty, Foster Care, and Adoption,
60 Ohio St. L.J. 1189, 1192-97 (1999) (tracing policy back to the early 1900s). See also
Suter v. Artist M., 503 U.S. 347, 360-61 (1992) (noting absence of federal rules or regulation giving content to the
reasonable efforts requirement); David J. Herring, The Adoption and Safe
Families Act - Hope and Its Subversion,
34 Fam. L.Q. 329, 334-36, 342 (2000) (describing failures of AACWA largely due to lack of local and federal
enforcement). But see Cahn, supra, at 1196-97 (describing and citing testimony
at Congressional Hearings regarding AACWA claiming the states had provided too
much emphasis on family preservation and reunification); Herring, supra, at 334
(suggesting that front line decisionmakers resisted federal permanency planning
mandates due to concerns about fairness to families). Nevertheless, due to
failures in implementation of AACWA, child advocates resorted to private
enforcement of federal law provisions. By 1996, nearly half of the states were
or had been under court supervision for failure to provide basic services to
children in the child protection system. Robert Pear, Many States Fail to Meet
Mandates on Child Welfare, N.Y. Times, Mar. 17, 1996, at 1. See, e.g.,
Suter, 503 U.S. 347;
Lynch v. Dukakis, 719 F.2d 504 (2d Cir. 1983);
Norman v. Johnson, 739 F. Supp. 1182 (N.D. Ill. 1990);
B. H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989); see also Barbara L. Atwell,
"A Lost Generation": The Battle for Private Enforcement of the Adoption Assistance and Child
Welfare Act of 1980,
60 U. Cin. L. Rev. 593, 618-37 (1992) (describing the litigation).
n195. 143 Cong. Rec. H10787 (Nov. 13, 1997) (statements of Rep. Kennelly).
n196. Such instances are when a court has determined that the parent has abandoned,
tortured, chronically abused or sexually abused the child, the parent has
feloniously assaulted, killed or attempted to kill the child or another child
of the parent, or the parent's parental rights to a sibling have been
42 U.S.C.S. 671(a)(15) (Lexis 1998).
42 U.S.C.S. 675(5)(E) (Lexis 1998). A state is not required to file a petition to terminate
parental rights when the child is being cared for by a relative, the state
agency has determined that filing such proceedings would not be in the best
interests of the child, or if reasonable efforts were required but not provided
by the state. Id.
n198. Indeed, the fifteen years between passage of the AACWA and its ASFA amendments
were marked by failures in the provision of meaningful preservation and
reunification services for families. Cahn, supra note 194, at 1201-04; Herring,
supra note 194, at 332-36.
42 U.S.C.S. 671(a)(15) (Lexis 1998) (requiring state agencies to make reasonable efforts to
effect the permanent placement of the child);
42 U.S.C.S. 675(1)(E) (Lexis 1998) (defining adoption mandates and incentives).
n200. This does not mean to suggest that adoption is not an excellent option for
many children or that the state agencies did not need incentives to promote
adoption. ASFA does reflect, for whatever reasons, a preference for substitute
care for certain children, particularly those who come from poor and minority
Roberts, supra note 194, at 129 (noting that
"it seems that this reverence of adoption over biology is reserved for poor and
minority families that are most often clients of the child welfare system").
n201. Although the Constitution countenances termination of parental rights - or
non-assignment of parental rights - before a father has established more than a
genetic connection to the child or the mother, see supra text accompanying
notes 22-31, the Constitution does appear to require an individualized inquiry
into parental conduct in relation to the child after parental rights are
established, see supra text accompanying note 93. Although the federal ASFA
does permit individualized inquiry as to whether to file a termination of
parental rights petition and as to parental fitness at the hearing, some states
mandate such filings in every case, e.g.,
Ind. Code Ann. 31-35-2-4.5(a)(2) (1998) (Michie 2000), and at least two states have defined parental unfitness
solely in terms of the time the child has been in foster care,
750 Ill. Comp. Stat. Ann. 50/1(D)(m-1) (West 1999
& Supp. 2001);
Nev. Rev. Stat. Ann. 128.109(1)(a)
& (2) (Michie 1998
& Supp. 1999). The Illinois Supreme Court, however, has ruled the Illinois
In re H.G., 757 N.E.2d 864 (Ill. 2001); see also, Jennifer Ayres Hand, Note, Preventing Undue Terminations: A Critical
Evaluation of the Length-of-Time-Out-of-Custody Ground for Termination of
71 N.Y.U. L. Rev. 1251 (1996) (collecting statutes and discussing grounds).
n202. Of course, the parents who are subject to these state ASFA laws have usually
been proven to be abusive or neglectful and have justifiably had their parental
rights limited. It is not the intention to equate these parents with the fit
birth parents in thwarted adoptions, except to note that both types of laws
illustrate valuation of substitute care over parental care.
Roberts, supra note 194, generally and at 114, n. 14; see also Herring, supra note 194, at 340
("the preference for adoption is evident throughout ASFA").
n204. In a growing body of work addressing infertility, transracial and
transnational adoption, and most recently child welfare, Professor Bartholet
has designed a theory that would make adoption an easier and more acceptable
method of creating family, even at the expense of non-consenting biological
parents. E.g., Bartholet, supra note 188; Family Bonds: Adoption and The
Politics of Parenting (1993); Elizabeth Bartholet, Beyond Biology: The Politics
of Adoption and Reproduction, 2 Duke J. Gender L.
& Pol. 5 (1995); see also Raymond C. O'Brien, An Analysis of Realistic Due
Process Rights of Children Versus Parents,
26 Conn. L. Rev. 1209 (1994); Russ, supra note 82 (both arguing for less family preservation and easier
termination of parental rights for foster children).
n205. Bartholet, supra note 188, at 181.
n206. Id. at 102.
n207. Id. at 96-97.
n208. Guggenheim, supra note 157, at 1734.
Although she never offers a substitute standard for removal, Bartholet clearly
advocates that children be removed to protect their
"well-being' far more frequently than is current practice. Because only a
relatively small number of children are hospitalized or killed in the United
States each year as a result of abuse, Bartholet's call for a vast increase in
removals must contemplate a significantly broader basis for removal - one
"best interests' rather than on serious harm.
n209. Exceptions to this seeming truism might occur when one of the co-parents
undergoes a sex change operation subsequent to the child's conception or birth,
or when reproductive technology permits the production of an embryo using the
eggs of two women. See Kyle C. Velte, Note, Egging on Lesbian Maternity: The
Legal Implications of Trigametic In Vitro Fertilization,
7 Am. U. J. Gender Soc. Pol'y & L. 431 (1999); Gina Kolata, Babies Born In Experiments Have Genes From 3 People, N.Y. Times,
May 5, 2001, at A13.
n210. Of course, lesbians and gays also value the parental rights doctrine as it may
protect them from loss of all rights to their children in custody battles with
heterosexual ex-spouses or grandparents who claim that placing a child with a
lesbian or gay man cannot be in the child's best interest or will harm the
child. See, e.g., Nancy D. Polikoff, This Child Does Have Two Mothers:
Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other
78 Geo. L.J. 459, 462-63, nn.3-7 (1990) (listing cases); Ruthann Robson, Mother: The Legal Domestication of Lesbian
Existence, in Mothers in Law 103, 105-10 (Martha Fineman
& Isabel Karpin eds., 1995) (discussing challenges to lesbian parenting).
Moreover, the parental rights doctrine's matrifocal definition of parent does
not require a biological connection to the child: supporting the legal parent ("mother") should be sufficient, absent or in addition to other contenders for the
"Lesbian" refers to a diverse group of individuals as does
"gay". Moreover, the interests of lesbians and gays do not always coincide within
and across each category, particularly in the family arena. See, e.g., Robson,
supra note 210, at 110-12 (describing disputes between lesbian co-parents and
gay sperm donors); Julie Shapiro, A Lesbian-Centered Critique of Second-Parent
14 Berkeley Women's L.J. 17 (1999) (describing the restrictive class, gender, and (presumably) race based aspects
of the concept of motherhood that exclude many lesbians from fitting the norms
necessary to be considered a mother). The Article present here common themes
regarding formation and protection of lesbian and gay families.
n212. See Polikoff, supra note 210, at 465-68 (describing the
"new lesbian-mother families" who begin to parent in the context of a lesbian relationship, rather than
lesbian parent-child relationships that formed in the context of a heterosexual
marital relationship); see also Laura M. Padilla, Flesh of My Flesh But Not My
Heir: Unintended Disinheritance,
36 J. Fam. L. 219, 219 (1997-98) (citing statistics that, as of the mid-1990s, around 10,000 lesbians
and gays had or adopted children). William Rubenstein refers to these new
""second generation queer parent cases,'" distinguishing them from
""first generation'" custody contests arising after divorce of heterosexual and homosexual parent,
""third generation'" queer parent cases when another adult is intended to have a non-parental but
significant role in the child's life. William B. Rubenstein, Divided We
Propagate: An Introduction to Protecting Families: Standards for Child Custody
in Same-Sex Relationships,
10 UCLA Women's L.J. 143, 144 (1999).
n213. In the case of anonymous sperm donation, the father does not normally have
parental rights or status. Unif. Parentage Act (1973) 5, 9B U.L.A. 407 (2001).
A known donor, on the contrary, generally has parental status or the potential
of such status and cannot relinquish his parental rights or responsibilities by
contract. See, e.g., Fred A. Bernstein, This Child Does Have Two Mothers ...
And A Sperm Donor with Visitation,
22 N.Y.U. Rev. L. & Soc. Change 1, 33 (1996) (distinguishing between involved and uninvolved sperm donors); Alexa E. King,
Solomon Revisited: Assigning Parenthood in the Context of Collaborative
5 UCLA Women's L.J. 329, 333 (1995) (advocating different levels of parenthood for adults involved in the
reproduction and rearing of the child). Of course, the father can relinquish
parental rights in the context of adoption, but such proceedings provide
judicial oversight ostensibly to insure that another adult or two will become
parents and that someone is attending to the child's interests. Cf. Bernstein,
supra, at 33 (recognizing the limitations of prenatal agreements for
anticipating or governing what will be best for a child as s/he develops).
n214. Lesbians may use a known donor even though they do not wish the donor to have
legal rights to or responsibilities for the child. Reasons for using known
donors include the fact that many sperm banks or insemination services refuse
to provide sperm to non-married women. See Holly J. Harlow, Paternalism Without
Paternity: Discrimination Against Single Women Seeking Artificial Insemination
6 S. Cal. Rev. L. & Women's Stud. 173, 174-75, 180 (1996) (noting that in the 1990s, unmarried women still faced barriers to
insemination); Note, Reproductive Technology and the Procreation Rights of the
98 Harv. L. Rev. 669, 670 (1985) (stating that in 1979, roughly ninety percent of doctors would not provide
insemination to unmarried women); see also Lisa C. Ikemoto, The In/Fertile, The
Too Fertile, and the Dysfertile,
47 Hastings L.J. 1007, 1028-30 (1996) (noting that doctors and clinics often limit in vitro fertilization services
to wealthy, heterosexual, married couples). Additionally, some lesbians may
wish to provide their children with more information about the father, and even
an actual person to whom the child could have access. See Rosemarie Tong,
Feminist Approaches to Bioethics: Theoretical Reflections and Practical
Applications 172-73 (1997); Elizabeth L. Gibson, Artificial Insemination by
Donor: Information, Communication and Regulation,
30 J. Fam. L. 1, 27-28 (1991). Of course, gay men too may decide to have ongoing or open relationships with
the biological parents of their children. See, e.g.,
In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995) (discussing the status of a gay adoptive father entered into open adoption
with birth mother).
In re Z.C.W., 84 Cal. Rptr. 2d 48 (Cal. Ct. App. 1999);
Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986);
In re LaChapelle, 607 N.W.2d 151 (Minn. Ct. App. 2000);
In re Thomas S. v. Robin Y., 618 N.Y.S.2d 356 (App. Div. 1994);
Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991). These presumably are Rubenstein's
"third generation queer parent" cases. Rubenstein, supra note 212, at 144.
n216. See supra notes 40, 41 and accompanying text.
n217. However, because adoption law requires an adoption to be in the best interests
of the child, it may exclude persons who do not meet dominant judicial norms of
parent. See Shapiro, supra note 211, at 31-32 (arguing that some lesbians
cannot meet parenting norms required for judicial approval in adoption and
other contexts). Some states explicitly ban lesbian and gay adoption. See Fla.
Stat. Ann. ch. 63.042(3) (Harrison 1994
& Supp. 2000); In re Appeal in
Pima County Juvenile Action B-10489, 727 P.2d 830, 835 (Az. Ct. App. 1986). Statutory language may also implicitly limit co-parent and second parent
adoption. See Mark Strasser, Courts, Legislatures, and Second-Parent Adoptions:
On Judicial Deference, Specious Reasoning, and The Best Interests of the Child,
66 Tenn. L. Rev. 1019, 1027-40 (1999) (analyzing state court refusal to allow second-parent adoption). See also
Utah Code Ann. 62A-4a-602 (Lexis 2000);
Utah Code Ann. 78-30-1 (Michie 1996
& Lexis Supp. 2001) (banning adoptions by persons who live with and have sexual
relations with another adult to whom they are not married under Utah law).
In re Adoption of Tammy, 619 N.E.2d 315, 320 (Mass. 1993) (holding that adoption by the child's second mother will entitle the child to
inheritance, to support, health insurance benefits, and social security
benefits in the event of second mother's death).
n219. See, e.g.,
In re M.M.D. & B.H.M., 662 A.2d 837, 843 (D.C. 1995) (noting that adoption statute permits co-parents to adopt a child
n220. It appears that only Connecticut explicitly permits an unmarried domestic
partner to adopt his or her partner's child. See
Conn. Gen. Stat. Ann. 45a-724, 45a-727, 45a-731 (West 1993
& Supp. 2001).
In re Adoption of Baby Z., 724 A.2d 1035, 1048 (Conn. 1999);
In re M.M.D. & B.H.M., 662 A.2d 837, 856 (D.C. 1995);
In re K.M. & D.M., 653 N.E.2d 888, 895-96 (Ill. App. Ct. 1995);
In re Adoption of Tammy, 619 N.E.2d 315, 316-17 (Mass. 1993);
In re Adoption of Two Children by H.N.R., 666 A.2d 535, 539 (N.J. Super. Ct. App. Div. 1995);
In re Dana, 660 N.E.2d 397, 399 (N.Y. 1995);
In re Adoption of R.B.F., 762 A.2d 739, 743 (Pa. Super. Ct. 2000);
In re Adoption of Jane Doe, 719 N.E.2d 1071, 1073 (Ohio Ct. App. 1998), reconsideration denied,
711 N.E.2d 234 (Ohio 1999).
In re Adoption of T.K.J., 931 P.2d 488, 496 (Colo. Ct. App. 1996);
In re Adoption of Baby Z., 724 A.2d 1035, 1048 (Conn. 1999);
In re Angel Lace M., 516 N.W.2d 678, 681-62 (Wis. 1994);
In re Adoptions of B.L.V.B. & E.L.V.B, 628 A.2d 1271, 1275-76 (Vt. 1993).
n223. In fact, in many cases the non-custodial
"parent" is an anonymous sperm donor who has no legal parental status. E.g.,
In re Adoption of R.B.F., 762 A.2d 739, 740 n.1 (Pa. Super. Ct. 2000); see also Theresa Glennon, Binding the Family Ties: A Child Advocacy
Perspective on Second-Parent Adoptions,
7 Temp. Pol. & Civ. Rts. L. Rev. 255, 267-68 (1998) (distinguishing her argument promoting second parent adoption from any attempt
to limit parental rights).
n224. In one second parent adoption case, a dissenting judge articulated a way
around this tension when he claimed that only statutory provisions
"implicating the involuntary termination of parental rights" need be strictly construed, while other provisions should be liberally
R.B.F., 762 A.2d at 745 (Johnson, J. dissenting); see, Glennon, supra note 223, at 267-68 (urging a
liberal construction of the Pennsylvania adoption act, but recognizing need to
interpret statute to protect parental rights).
n225. See supra text accompanying notes 164-74; see also Martha Minow, Redefining
Families: Who's In and Who's Out?,
62 U. Colo. L. Rev. 269 (1991) (ruminating about what it means to be a parent and a family); Polikoff, supra
note 210 (discussing alternate legal theories of parental status); Gay and
Lesbian Advocates and Defenders, Protecting Families: Standards for Child
Custody in Same-Sex Relationships,
10 UCLA Women's L.J. 151 (1999) (producing guidelines for custody battles that protect children as well as
lesbian and gay community interests).
E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999), cert denied,
528 U.S. 1005 (1999) (defining de facto parent as one whom, inter alia, the legal parent encouraged
to take parental role). The de facto parent model is not universal, so lesbian
and gay would-be de facto parents cannot always invoke legal protection. See
Guardianship of Z.C.W., 84 Cal. Rptr. 2d 48 (Cal. Ct. App. 1999), cert. denied sub nom.,
Crandell v. Wagner, 528 U.S. 1056 (1999);
Kazmierazak v. Query, 736 So.2d 106 (Fla. Dist. Ct. App. 1999);
In re Visitation of C.B.L., 723 N.E.2d 316 (Ill. App. Ct. 1999);
Liston v. Pyles, No. 97 APF01-137, 1997 WL 467327 (Ohio Ct. App. Aug. 12, 1997;
In re Thompson, 11 S.W.2d 913 (Tenn. Ct. App. 1999);
Jones v. Fowler, 969 S.W.2d 429 (Tex. 1998);
Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997). Commentators propose alternative theories for protecting these relationships.
See Bernstein, supra note 213, at 52; Polikoff, supra note 210, at 501-02;
Robson, supra note 210, at 110-15.
n227. Legal doctrine is not the only motivation for excluding non-custodial
biological parents from parental roles. Acceptance of the nuclear family model,
which is based on the adult affectional relationship, may also lead lesbian and
gay parents to reject parents who are not part of the foundational affectional
n228. See, e.g., King, supra note 213, at 381, 388-94 (arguing for divorcing
procreation from biology, noting the practical difficulties of recognizing
multiple parents, and suggesting that parenthood be defined by virtue of the
relationship between the adults). See generally Bernstein, supra note 213
(describing attempts to abrogate connection between semen donors and their
n229. Reproductive technology means noncoital production of children, generally
encompassing assisted insemination, in vitro fertilization, and surrogacy.
n230. For example, Professor Dolgin views reproductive technology as the continuing
transformation of family law from a relational doctrine governing the
biologically defined family as an entity to a rights based doctrine in which
families and family relationships are bundles of individual rights holders.
Janet L. Dolgin, An Emerging Consensus: Reproductive Technology and the Law,
23 Vt. L. Rev. 225 (1998). Professor Marjorie Shultz believes increased options for creating children
invite reconsideration of legal and normative definitions of a parent. Shultz,
supra note 17, at 304-318. Professor Rao views reproductive technology as
undermining family paradigms by replacing biological ordering with social
choice and destroying the opposition between family and market. Radhika Rao,
Assisted Reproductive Technology and the Threat to the Traditional Family,
47 Hastings L.J. 951, 959 (1996).
n231. For example, egg donor(s) and her husband, sperm donor, gestational surrogate,
husband of the surrogate, and man and woman who contracted for the donated
gamete and womb.
n232. A number of other issues arise in the literature as well that are outside the
scope of this Article. For example, ethical and policy issues regarding
participants in and products of these processes and the regulation of these
processes, such as clinic regulation, storage of reproductive materials,
resolution of disputes, and informed consent. By omitting them, the Article
does not intended to minimize the importance of these issues or to suggest that
assisted reproduction does not pose immediate and long-term problems, both
politically and socially, for individual children and families that echo larger
issues in family law and social justice.
"Gestational surrogate" refers to a woman who carries a genetically unrelated fetus.
"Traditional surrogate" refers to a woman who carries a fetus genetically related to the surrogate.
In re Baby M., 537 A.2d 1227 (N.J. 1988); see also, Cahn, supra note 87, at 23-27 (noting that when a preconception
agreement breaks down, courts will treat it as a custody matter and conduct a
best interest of the child inquiry); James Lindemann Nelson, Genetic
Narratives: Biology, Stories, and the Definition of the Family,
2 Health Matrix 71, 72 (1992) ("Surrogateship contracts ... are quite widely regarded as
"unenforceable as contrary to public policy'
" and are, in fact, banned in many states.). Indeed, adoption laws in all but a
few states forbid or discourage pre-birth maternal relinquishment of the child
and establish timing or other conditions for post-birth maternal
& Appell, supra note 80.
n236. E.g., Unif. Parentage Act (1973) 5, 9B U.L.A. 407-10 (2001); Marie J.
Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A
Paradigm for Reproductive Freedom,
3 Am. U. J. Gender Soc. Pol'y & L. 183, 208, nn. 108-110 (1995) (collecting donor insemination statutes); see also Unif. Status of Children of
Assisted Conception Act (1988) 4(a), 9B U.L.A. 265 (Supp. 2001) ("a donor is not a parent of a child conceived through assisted conception"); National Advisory Board on Ethics in Reproduction (NABER), Report and
Recommendations on Oocyte Donation, in New Ways of Making Babies 231, 299
(Cynthia Cohen ed., 1996) (recommending same).
n237. E.g., Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to
the Determination of Legal Parentage,
113 Harv. L. Rev. 835 (2000) (proposing parentage rules for assisted reproduction that would mirror
parentage rules for sexual reproduction); John A. Robertson, Assisted
Reproductive Technology and the Family,
47 Hastings L.J. 911, 927-28 (1996) ("Rather than undermining or altering traditional conceptions of the family, the
demand for [assisted reproduction technologies] comports with the prevailing
family paradigm of couples having and rearing biologically related offspring.").
n238. See Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy:
Comment on Richard Epstein's Surrogacy: The Case for Full Contractual
81 Va. L. Rev. 2377 (1995); Dolgin, supra note 230; Richard A. Epstein, Surrogacy: The Case for Full
81 Va. L. Rev. 2305 (1995); Garrison, supra note 237; Shultz, supra note 17; see also Jana B. Singer, The
Privatization of Family Law,
1992 Wis. L. Rev. 1443, 1536-38 (discussing strengths and weaknesses of private approaches to surrogacy).
n239. Again, this is not to suggest that contract or family law does not make a
difference, particularly in the traditional surrogacy context in which it
matters a great deal whether a woman can and should be forced to relinquish
custody or parental rights to her genetic and gestational child and whether the
child's interests would be outcome determinative. See Lori B. Andrews, Beyond
Doctrinal Boundaries: A Legal Framework For
81 Va. L. Rev. 2343, 2343-45 (1995) (noting deficiencies with both doctrines). The Article does not intend to
suggest that family law doctrines do not produce ugly processes and results.
See, e.g, Ikemoto, supra note 214, at 1024-26 (describing racialized
presumptions regarding fatherhood); Dorothy E. Roberts, The Genetic Tie,
62 U. Chi. L. Rev. 209, 244-52 (describing the use of genetic lineage to maintain white supremacy).
n240. For example, the Uniform Parentage Act permits men to donate sperm anonymously
and thereby relinquish any rights of responsibilities of subsequent parenthood.
Unif. Parentage Act (1973) 5, 9B U.L.A. 407 (2001). Adoption laws provide forms
and conditions for relinquishing parental rights. Joan Hollinger, 1 Adoption
& Practice 2.11 (2000); see also
Cruzan v. Mo. Dep't of Health, 497 U.S. 261 (1990) (permitting the state to establish forms/evidentiary standards for persons to
forego life-sustaining medical treatment). Even Professor Dolgin's proposal for
laws permitting women who are not biologically related to a contractually
produced child to be designated as the legal mother upon the child's birth,
without requirement of the birth mother's post-birth consent and entry of an
adoption decree, Dolgin, supra note 230, at 253-58, is not necessarily in
conflict with parental rights. But see infra note 241 and Section III.A.
n241. See Barbara Stark, Constitutional Analysis of the
Baby M Decision,
11 Harv. Women's L.J. 19 (1988) (arguing that surrogates cannot alienate maternal or privacy rights prior to
conception, but instead retain these rights throughout each stage of surrogacy:
i.e., the decision to conceive, the decision to carry or abort, medical
decisions, and eventually the decision to surrender the child to the
prospective (contracting) parents); see also Anita L. Allen, Privacy,
Surrogacy, and the
Baby M Case,
76 Geo. L.J. 1759, 1786-91 (1988) (asserting that a surrogate cannot alienate parental rights until after
n242. This is not to suggest that such reproduction does not pose the same sort of
challenges to children and families as adoption and other biological
disconnections between children and families. E.g., Nelson, supra note 235, at
Johnson v. Calvert, 851 P.2d 776 (Cal. 1993);
Belsito v. Clark, 67 Ohio Misc. 2d 54 (1994) (both granting the genetic mother (ovum donor) parental status); see also
Unif. Status of Children of Assisted Conception Act (1988) 5-6, 9B U.L.A.
266-67 (Supp. 2001) (providing a number of alternatives including the
designation of the woman who gives birth as the mother or the specific
enforcement of gestational surrogacy agreements). But see Charo, supra note 17,
at 249-50 (arguing that gestation should define motherhood and noting that
every country but Israel that has examined the issue of split genetic and
gestational motherhood defines the birth mother as the mother).
Johnson, 851 P.2d at 782; see also Unif. Status of Children of Assisted Conception Act (1988) 4(a), 9B
U.L.A. 265 (Supp. 2001) (stating that
"a donor is not a parent of a child conceived through assisted conception"); Ikemoto, supra note 214, at 1023-27 (explaining that surrogacy doctrine
reinforces long standing family doctrine maintaining white male control over
women's sexuality and white conceptions of racial purity); NABER, supra note
236, at 299 (recommending adoption of laws that recognize the gamete recipient,
and not the donor, as the legal parent).
n245. See, e.g., Cynthia B. Cohen, Parents Anonymous, in New Ways of Making Babies,
supra note 236, at 88, 96; Dolgin, supra note 230, at 275-79; Shultz, supra
note 17, at 366-67.
n246. This relinquishment is analogous to an anonymous sperm donor, or a putative
father who fails to register, file a paternity action, or hold himself out as a
parent. Yet, it does seem that under the parental rights doctrine, gestation
would trump genetics, despite pre-conception intent, because parental rights
doctrine values nurture over genetic connections. By the time of birth, the
gestational mother has provided more nurture than any other parent. The
traditional surrogate, of course, would be the only mother at birth since she
embodies both aspects of parenthood - the genetic and nurturing connections.
n247. Like many feminists, the author is troubled by the gender, racial, and class
implications of characterizing gestation as a fungible commodity. See, e.g.,
Anita L. Allen, The Black Surrogate Mother, 8 Harv. BlackLetter L.J. 17 (1991)
(linking surrogacy to slave women's relationship to their babies, and
critiquing enforcement of such contracts due to likely economic and racial
inequality between surrogates and contracting parents); Marie Ashe, Mind's
Opportunity: Birthing a Post-Structuralist Feminist Jurisprudence,
38 Syracuse L. Rev. 1129, 1170 (1987) (describing the uniqueness of pregnancy and childbirth); Minow
& Shanley, supra note 52, at 11 (noting that selling pregnancy and childbirth
like any other labor diminishes the special relationship between a woman and
her reproductive capacities); Margaret Jane Radin, Market-Inalienability,
100 Harv. L. Rev. 1849, 1915-16, 1925-36 (1987) (discussing the harms to women's and children's personhood that selling
reproductive services causes, particularly in the context of class division and
Roberts, supra note 239, at 241-52 (noting how surrogacy echoes slavery's ownership of human
beings and the use of slave women to bear children to be sold, tends to
privilege paternal and devalue maternal genetic ties, and is used by wealthier
women at the expense of poorer women); see also Stark, supra note 241
(discussing constitutional limitations on contractual surrogacy).
n248. Dolgin, supra note 230 at 236-60; Nelson, supra note 235 at 79; see also
Andrews, supra note 239, at 2367-68 (arguing for upholding surrogacy-contracts
because child would not exist but for the intending parents); Cohen, supra note
245, at 96 (same); Marjorie M. Shultz, Questioning Commodification,
85 Cal. L. Rev. 1841, 1852-54 (1997) (reviewing Margaret Jane Radin, Contested Commodities: The Trouble with Trade
in Sex, Children, Body Parts, and Other Things (1996)) (same). Professor Shultz
even argues that intentional parents may be
"better" parents than the gestational parent because assisted reproduction involves the
type of long-term and multi-faceted commitment required for parenting. Shultz,
supra note 17, at 332. Professor Shultz does not, however, elaborate on why a
surrogate's gestation and child birth would not involve long-term,
n249. See John A. Robertson, Children of Choice: Freedom and the New Reproductive
Technologies (1994) [hereinafter Robertson, Children of Choice]; John Lawrence
Hill, What Does it Mean to be a
"Parent"? The Claims of Biology as the Basis for Parental Rights,
66 N.Y.U. L. Rev. 353 (1991); John A. Robertson, Procreative Liberty and the Control of Conception,
Pregnancy, and Childbirth,
69 Va. L. Rev. 405 (1983) [hereinafter Robertson, Procreative Liberty].
"right" is derived from the right not to procreate, Robertson, Procreative Liberty,
supra note 249, at 416-21, or the right not to be sterilized, Hill, supra note
249, at 366-69 (citing
Skinner v. Oklahoma, 316 U.S. 535 (1942)).
n251. See Hill, supra note 249, at 379-83. Robertson notes that infertile and
fertile persons' interest in procreation is not different and so both should
have a right to procreation. Robertson, Procreative Liberty, supra note 249, at
Robertson, Children of Choice, supra note 249, at 126-27; Hill, supra note 249, at 382-87.
Robertson, Children of Choice, supra note 249, at 143 ("preconception rearing intentions should count as much as or more than biologic
connection"); Hill, supra note 249, at 382-386 (arguing that procreative rights are more
fundamental than privacy rights and procreation is inherently relational, as is
parenthood, so parental rights are subsumed in procreational rights and not
defined by biology).
n254. E.g., Zillah R. Eisenstein, The Female Body and the Law 2 (1988) ("Just as biology is never devoid of its cultural definition and interpretation,
so sex itself, as a biological entity, is partly defined in and through
culture.); Jane Flax, Postmodernism and Gender Relations in Feminist Theory, 12
Signs 621, 627 (1987) ("The single most important advance in feminist theory is that the existence of
gender relations has been problematized. Gender can no longer be treated as a
simple, natural fact."); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The
Disaggregation of Sex From Gender,
144 U. Pa. L. Rev. 1, 5 (1995) (stating that
"most, if not all, differences between men and women are grounded not in
biology, but in gender normativity"); Evelyn Nakano Glenn, Social Constructions of Mothering: A Thematic Overview,
in Mothering: Ideology, Experience, and Agency, supra note 136, 1, 3 (feminist
scholars have challenged notions of manhood or womanhood as inherent qualities
derived from or related to sex); Tracy E. Higgins,
"By Reason of Their Sex": Feminist Theory, Postmodernism, and Justice,
80 Cornell L. Rev. 1536, 1570 (1995) ("Sexual difference, however it may be measured, is irretrievably bound up with
gender."); see also Sylvia A. Law, Homosexuality and the Social Meaning of Gender,
1988 Wis. L. Rev. 187 (1988) (showing how homosexuality challenges gender dichotomies); Robin L. West, The
Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist
3 Wis. Women's L.J. 81, 140-44 (1987) (describing how woman's biological pregnability and social roles form women's
identities as care-givers and how societal constructs couple pain with
childbirth though such a connection is neither natural or biological). Cf.
Catharine A. MacKinnon, Points Against Postmodernism,
75 Chi.-Kent L. Rev. 687, 700-01 (2000) (claiming that subordination of women is universal in that it occurs across
all cultures). The subject of gender and its relation (or lack of relation) to
the increasingly outmoded categories of male and female has become its own
intellectual specialty. See Franke, supra, at 3-5 (arguing that there is no
such thing as biological sexual differences, only the meaning society assigns
to them and so
"there is no principled way to distinguish sex from gender"); Adria Schwartz, Taking the Nature Out of Mother, in Representations of
Motherhood, 240, 250 (Donna Bassin et al. eds., 1994) (discussing postmodern
feminist challenges to the binary categorization of men and women). The claim
that there is no such thing as biological difference - just the meanings we
ascribe to them - has great relevance to the major tenet of this Article, that
biology matters because the legal parental paradigm encompasses the two types
of biological contribution that mothers/women/females make: gametic and
gestational. This Article does not take issue with the point that biology is
meaningful only to the extent we assign social meaning to it. Indeed, it
describes the legal construction of parenthood as privileging (ascribing
special meaning to) the things that persons who have ovaries and wombs can do.
It also defends that meaning because for some persons, that genetic and
gestational connection is the only socially meaningful thing that affords them
the privilege of being a parent. See infra text accompanying notes 287 and 416.
n255. The same is true for men, but their gender norms are more likely to lead to
physical, financial, or economic power and freedom than the norms of women. Of
course, race, culture, class and religion create divisions among men regarding
n256. See Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories,
4 Berkeley Women's L.J. 191, 198 n.36 (1989-90) (contrasting the
"modern day women's movement," with the first wave of feminism starting in the 19th century).
n257. Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution 13
(1976). For a history of second wave feminist approaches to motherhood, see
Lauri Umansky, Motherhood Reconceived (1996).
n258. Dorothy E. Roberts, The Unrealized Power of Mother,
5 Colum. J. Gender & L. 141, 143 (1995); see also Flax, supra note 254, at 638-39 (noting that feminist perspectives
range from viewing the family as woman's special realm to viewing it as the
site of gender struggles); Carol Sanger, M Is For the Many Things,
1 S. Cal. Rev. L. & Women's Stud. 15 (1992) (rehearsing feminist approaches to motherhood); Robin West, Jurisprudence and
55 U. Chi. L. Rev. 1, 53 (1988) (discussing the potentiality of motherhood as both valuable and dreadful).
n259. See, e.g., Mary Becker, Maternal Feelings: Myth, Taboo, and Child Custody,
1 S. Cal. Rev. L. & Women's Stud. 133, 142-58 (1992) (discussing the special bonds mothers have with their children).
n260. See infra Part II.D.1.b.
n261. See e.g., Patricia Hill Collins, Black Women and Motherhood, in Rethinking the
Family: Some Feminist Questions, supra note 136; Iglesias, supra note 136;
Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood,
1 Am. U. J. Gender & L. 1 (1993).
n262. Shulamith Firestone, The Dialectic of Sex 17 (1970, reprinted 1993); Jeffner
Allen, Motherhood: The Annihilation of Women, in Mothering: Essays in Feminist
Theory 315 (Joyce Trebilcot ed., 1983); Nancy Chodorow
& Susan Contratto, The Fantasy of the Perfect Mother, in Rethinking the Family,
supra note 136, at 191.
Chodorow & Contratto, supra note 262; Michelle Stanworth, Birth Pangs: Conceptive Technologies and the
Threat to Motherhood, in Conflicts in Feminism 288, 296-97 (Marianne Hirsch
& Evelyn Fox Keller eds., 1990); West, supra note 258, at 30.
n264. Fineman, Intimacy Outside of the Natural Family: The Limits of Privacy, supra
note 103, at 51 (women as a legal and cultural category encompasses motherhood
in its definition); M.M. Slaughter, The Legal Construction of
"Mother," in Mothers in Law, supra note 210, 73, 74 ("Women are socially constructed as Mothers or childrearers because of a system
of power that keeps them from working to full capacity in the labor market.") Carol Sanger calls this
"maternal essentialism." Sanger, supra note 258, at 18; see also Glenn, supra note 254, at 13 ("Woman is conflated with mother, and together appears as an undifferentiated and
unchanging monolith. (In contrast, men appear in all of their historical
specificity in a variety of roles and contexts.)"). Professor West embraces this connection. West, supra note 258, at 14-18.
n265. See, e.g.,
Michael M. v. Superior Court, 450 U.S. 464 (1981) (upholding a state law criminalizing sexual intercourse for teenage girls and
not boys because young girls can become pregnant);
Muller v. Oregon, 208 U.S. 412, 422 (1908) (upholding state statute prohibiting women from working in factories more than
ten hours per day based in part on women's needs arising out of
"discharge of her maternal functions");
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (Justice Bradley's famous concurrence with the court's ruling upholding denial
of woman's admittance to the legal bar because of her
"paramount destiny" to be a wife and mother). But see
Int'l Union, United Auto. Workers v. Johnson Controls, 499 U.S. 187 (1991) (striking down a policy prohibiting women from working in jobs that could
damage a fetus). For a discussion of the Supreme Court's contradictory
conceptualizations of gender and biology, see Higgins, supra note 254, at
Eisenstein, supra note 254, at 80 ("The woman's body ... is inevitably associated with the mother's body ... ."); Dorothy Roberts, Racism and Patriarchy in the Meaning of Motherhood, in
Mothers in Law, supra note 210 ("All women are socially defined as mothers or potential mothers."); see also
Roberts, supra note 261, at 10 (noting that even feminist reproductive freedom discourse
"does not question the assumption that all women will eventually be mothers."); Sara Ruddick, Thinking Mothers/Conceiving Birth, in Representations of
Motherhood, supra note 254, 29 (suggesting the connections among being female,
giving birth, and mothering are ubiquitous and tenacious); Siegel, Reasoning,
supra note 67, at 320-21 (describing force of the equation of women and
motherhood in the anti-abortion and contraception movements of the nineteenth
n267. See Cain, supra note 256, at 205 n.96 (rejecting
"dominant" feminist discourse
"that privileges the experience of motherhood over other experiences of female
connections."); Higgins, supra note 254, at 1566 ("Not all women can or wish to be mothers and therefore some resist a definition
of woman as mother as not reflecting their experience."). Other social norms, like race, also dictate who is and is not a woman. See
Eileen Boris, The Power of Motherhood: Black and White Activist Women Redefine
2 Yale J.L. & Feminism 25, 46 (1989);
Roberts, supra note 261, at 15-16 (both noting that dominant norms exclude African American
from the category of woman).
n268. Susan Moller Okin, Justice, Gender, and the Family 45 (1989); see also Franke,
supra note 254 (discussing role of ability to bear children in the definition
of woman in the context of whether persons were born with male or female
genitals); West, supra note 258, at 47 (noting that, because it is compulsory,
motherhood can be
"tremendously constraining, damaging, and oppressive"). Treatment of pregnancy and pregnant women illustrates motherhood's
subversion of women. See MacKinnon, supra note 110, at 1315-28 (noting dominant
ideology's inability to conceive of the uniqueness of pregnancy or a fetus, or
to separate a woman from the fetus she carries); Michelle Oberman, Sex, Drug,
Pregnancy, and the Law: Rethinking the Problems of Pregnant Women Who Use
43 Hastings L.J. 505, 537-38 (1992) (describing how the law equates pregnant women's use of drugs with child abuse
Eisenstein, supra note 254, at 82-83; Okin, supra note 268, at 170-72; Fineman, Intimacy Outside
of the Natural Family: The Limits of Privacy, supra note 103, at 967; see also
Shultz, supra note 17, at 380 (noting different legal treatment of mothers and
fathers who try to waive parental rights).
n270. Glenn, supra note 254, at 13.
n271. This model, sometimes referred to as
"liberty feminism," or
"sameness feminism," minimizes differences between men and women and seeks to establish rules that
will apply to all persons, regardless of sex/gender. See Katherine Bartlett,
1 Duke J. Gender L. & Pol'y 1 (1994); West, supra note 258, at 14 (both describing such feminism).
n272. E.g., Joan C. Williams, Deconstructing Gender,
87 Mich. L. Rev. 797 (1989) (describing how focusing on women's difference from men reinforces oppressive
gender stereotypes); Wendy W. Williams, The Equality Crisis: Some Reflections
on Culture, Courts, and Feminism,
14 Women's Rts. L. Rep. 151 (1982) (arguing for gender neutral treatment of pregnancy, rape, and the draft). Even
though equality feminists discount dissimilarities, they do not necessarily
ignore them. On the contrary, equality feminists are critical of socially
constructed differences that subordinate women and advocate remedial action to
place women on par with men in the family as well as the workplace. E.g., Wendy
W. Williams, supra, at 173 ("It seems entirely possible that the concept of exclusive mother-infant bonding
- the latest variation on
"maternal instinct' - is a social construct designed to serve ideological needs.").
n273. E.g., Shultz, supra note 17, at 379-90; Slaughter, supra note 264, at 73-74.
Accord Williams, Deconstructing Gender, supra note 272, at 822-835 (advocating
for gender neutral parenting coupled with restructuring wage labor to take into
account of child rearing demands).
n274. Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality,
38 UCLA L. Rev. 1415 (1991); Slaughter, supra note 264.
n275. Czapanskiy, supra note 274; see also Martha Fineman, The Neutered Mother,
46 U. Miami L. Rev. 653, 660 (1992) ("As a result of the push to gender neutrality, Mother as an explicitly positive
symbol with unique connotations and significance in regard to her relationship
with her child has been moved out of the text and into the margins of family
law discourse. Mother is neutered into Parent and is, at the same time,
"Wife' - a role considered to be more appropriate as it connotes an equal or
full partner in the family and extra-family contexts.").
n276. See Czapanskiy, supra note 274, at 1464 (defining parent in gender neutral
terms); Slaughter, supra note 264, at 73 (noting in the context of child
"there is nothing in nature that requires women to Mother, or prevents men from
doing so"); see also Fineman, Our Sacred Institution: The Ideal of the Family in
American Law and Society,
1993 Utah L. Rev. 387, 397 (noting change in law to reflect gender neutral parenting); Shanley, supra
note 52, at 78 (contending that in the context of adoption, gender neutrality
presumes that legal rules treat both parents the same by requiring each to
consent before a child can be adopted).
Casey, 505 U.S. at 896-98. Of course the minimal role of males in reproduction frees them from invasive
intervention during gestation, unlike women who may be subject to criminal and
civil sanction for behavior while pregnant. See
Ferguson v. City of Charleston, 532 U.S. 67, 67 (2001) (describing a public hospital's practice and policy of testing and arresting
(poor, mostly African American) pregnant women for illicit drugs);
Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997), cert. denied,
523 U.S. 1145 (1998) (holding that a woman may be guilty of
"child abuse" for using illegal drugs while pregnant with a viable fetus); Katha Pollit,
Reasonable Creatures 181-82 (1995) (contrasting the
"duty of care" women have to their fetuses with the lack of such a duty to the men who live
with pregnant women).
n278. Professor Martha Fineman has developed these themes in a number of works.
E.g., Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth
Century Tragedies, supra note 110; Fineman, The Neutered Mother, supra note
275; Fineman, Our Sacred Institution: The Ideal of the Family in American Law
and Society, supra note 276. Professor Karen Czapanskiy has developed a similar
model of interdependency in a number of her works. E.g., Karen Czapanskiy,
Grandparents, Parents and Grandchildren: Actualizing Interdependency in Law,
26 Conn. L. Rev. 1315 (1994); Czapanskiy, supra note 135.
n279. See infra text accompanying notes 294-304.
n280. E.g., Fineman, supra note 275, at 663-68.
n281. See Fineman, The Neutered Mother, supra note 275, at 401-02.
n282. Women are still, by and large, care-givers (of dependant adults as well as
children), so this new model does not sufficiently compensate or protect women
from the sacrifices they make in providing care for children (and elders) in a
social context in which women cannot or do not rely on fathers for support. See
Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century
Tragedies, supra note 110, at 26, 67-69.
n283. Professor Fineman sees the dyad as primarily mother-child because women are
the most common nurturers, but she would not confine this care-giver-dependant
dyad to women. Fineman, The Neutered Mother, the Sexual Family, and Other
Twentieth Century Tragedies, supra note 110, at 230-33. Professor Czapanskiy
identifies this child-care-giver dyad as interdependency. Czapanskiy, supra
note 135, at 963.
n284. Czapanskiy, supra note 135, at 961-65; Fineman, Our Sacred Institution: The
Ideal of the Family in American Law and Society, supra note 276, at 402.
n285. In Professor Fineman's view, this dyad extends beyond parent-child to adult
child-parent. See Fineman, The Neutered Mother, the Sexual Family, and Other
Twentieth Century Tragedies, supra note 110, at 234-35. Cf. Czapanskiy, supra
note 135, at 972-73 (defining the parent ("lead caregiver") as
"the adult who is allocated the bulk of caregiving responsibilities").
n286. Czapanskiy, supra note 135, at 963 (interdependency theory identifies adults
by their behavior toward the child or the child's lead care-giver); Fineman,
supra note 110, at 234-35 ("I believe that men can and should be Mothers. In fact, if men are interested in
acquiring legal rights of access to children (or other dependents), I argue
they must be Mothers in the stereotypical nurturing sense of that term - that
is, engaged in caretaking.").
Collier et al., supra note 136, at 32-33 (noting that the dominant understanding of family is that it
consists of an identifiable and discrete group consisting of mother, father and
children); Martha Fineman, Masking Dependency: The Political Role of Family
81 Va. L. Rev. 2181, 2182 (1995) (ideal of the family is a married husband and wife living with their children
with the father providing economic support and the mother raising the
children); Ann Shalleck, Child Custody and Child Neglect: Parenthood in Legal
Practice and Culture, in Mothers in Law, supra note 210, 308, 324-25
(describing a case in which dominant construction of family required legal
notice of family proceedings to absent, violent father and disregarded the
widespread, multi-generational experience of African American families
constructed around mother-child dyads). The hegemony of the nuclear family
pathologizes other family structures. Thus, the single Black mother is the
primary cause of the growth of the
"underclass," thereby discounting the material conditions in which families live, including
unemployment, good education, adequate transportation, childcare, housing and
health care, as well as the strengths of these families. Maxine Baca Zinn,
Family, Race, and Poverty in the Eighties, in Rethinking the Family: Some
Feminist Questions, supra note 136, 71, 72-73; see also Martha Fineman, Images
of Mothers in Poverty Discourse, in Mothers in Law, supra note 210, at 205
(describing discourse that pathologizes poor, never married mothers). But see
Iglesias, supra note 136, at 917 (noting that the strong, independent African
American mother is not merely a function of material conditions of racism and
poverty limiting fathers from leading their families, but arises too out of
cultural factors and expectations that
"a woman be a strong, resourceful mother with a structurally central position").
n288. See Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth
Century Tragedies, supra note 110, at 190; Susan Chira, Struggling to Find
Stability When Divorce Is a Pattern, N.Y. Times, March 19, 1995, at 1, 42.
n289. See Zanita E. Fenton, In a World Not Their Own: The Adoption of Black
Children, 10 Harv. BlackLetter L.J. 39, 43 (1993); Iglesias, supra note 136, at
925-27; Twila L. Perry, The Transracial Adoption Controversy: An Analysis of
Discourse and Subordination,
21 N.Y.U. Rev. L. & Soc. Change 33, 52-53 (1993-94).
n290. See, e.g.,
Collins, supra note 261, at 219-23 (describing African American extended and fictive
& Burton supra note 136, at 35 (describing an African American man caring for
his grandchildren because they are his daughter's children).
n291. Judith Stacey, Backward toward the Postmodern Family: Reflections on Gender,
Kinship, and Class in the Silicon Valley, in Rethinking the Family: Some
Feminist Questions, supra note 136, 91, 105.
n292. Though they may be legally related through formal adoption in several states.
See supra text accompanying notes 217-24.
Roberts, supra note 239, at 272-73.
n294. E.g., Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth
Century Tragedies, supra note 110, at 47-54; West, supra note 258, at 14. Robin
West asserts that this conflation arises from biology, socialization, and
psychological forces. West, supra note 258, at 26.
n295. West, supra note 258, at 1-5.
n296. Id. at 16-17 (citing Nancy Chodorow and Carol Gilligan); Eichner, supra note
112, 154-56. Indeed, early feminists used women's special connection to
children as part of their political agenda toward social reform. See, e.g.,
Boris, supra note 267 (describing women's use of motherhood as a political
platform during the early 20th century women's movement).
n297. Sara Ruddick, Maternal Thinking 229 (1989); Fineman, supra note 110, at 235;
West, supra note 258, at 65-66; see also Frances Olsen, The Family and the
Market: A Study of Ideology and Legal Reform,
96 Harv. L. Rev. 1497, 1567-68 (1983) (arguing for bringing family values into the market in order to promote more
communal forms of social life).
n298. Disconnecting gender from biology is, of course, necessary to promote these
currently gendered norms as universal, that is applying to men as well. See
Sara Ruddick, Thinking about Fathers, in Rethinking the Family, supra note 136,
176, 186 (equating gender-inclusiveness and genderlessness).
n299. See, e.g., Glenn, supra note 254, at 13 (noting need to deconstruct
oppositions between male and female and subordinate position of mothering);
Ruddick, supra note 298, at 186 (arguing for mothering as a
n300. Glenn, supra note 254, at 3. See also Fineman, The Neutered Mother, the Sexual
Family, and Other Twentieth Century Tragedies, supra note 110, at 235; Barbara
Katz Rothman, Beyond Mothers and Fathers: Ideology in a Patriarchal Society, in
Mothering: Ideology, Experience, and Agency, supra note 136, 139, 154-55;
Ruddick, supra note 266, at 35-36. Ruddick also claims that neither
childbearing or mothering
"is a necessary condition for or consequence of performing the other activity
well." Id. at 38.
n301. Okin, supra note 268, at 171; Ruddick, supra note 298, at 187. Thus,
childbearing no longer counts. But see Becker, supra note 259, at 140, 142
(noting the uniqueness of pregnancy, particularly in relation to caretaking
post-birth); West, supra note 258, at 22-23 (discussing the special connections
between mother and fetus). Other arguments for devaluing pregnancy include the
repercussions of its meaning in the context of reproductive choice. Focusing on
the importance of the maternal bonding that occurs during pregnancy can
militate toward personifying the fetus. See Linda L. Lacey,
"O Wind, Remind Him That I Have No Child": Infertility and Feminist Jurisprudence,
5 Mich. J. Gender & L. 163, 188 (1998) ("An emphasis on the strength of the bonds formed between unborn children and the
gestational mother could be used to make the point that pro-life advocates have
been making all along - that from the moment of conception, fetuses are equally
capable of thought and emotion as born babies."). Of course devaluing the uniqueness of pregnancy can also limit a women's
reproductive choices. See MacKinnon, supra note 110, at 1313-16 (noting that
the failure to recognize that pregnancy is not like other actions or body parts
has limited legal doctrine regarding abortion choice); Minow
& Shanley, supra note 52, at 11 (arguing that treating pregnancy like any other
service or commodity can limit economically disadvantaged women's reproductive
n302. The historical and cultural variety of parenting in part drives Glenn to
create such a broad definition of mothering. See Glenn, supra note 254, at 25 ("Women's relationship to mothering seems both different from and (potentially)
the same as men's, just as any particular woman's relationship to mothering is
both the same and different from that of other women.").
n303. See Joan Mahoney, Adoption as a Feminist Alternative, in Reproduction, Ethics,
and the Law, Feminist Perspectives 35, 48-51 (Joan C. Callahan ed., 1995)
(arguing for defining parenthood as a nurturing, rather than genetic,
relationship); Rothman, supra note 300, at 134, 156; Ruddick, supra note 266,
at 36 (such involvement with children
"can inspire distinctly maternal conceptions of bodily life that are in no way
limited to women."). Pre-birth conduct as well, apparently, should confer parental status.
Shanley, supra note 52, at 85-90 (arguing that law should examine fathers'
conception and prebirth conduct to determine whether he should be accorded
n304. See Glenn, supra note 254, at 13; Ruddick, supra note 266, at 36. Ruddick also
cautions against associating mothering with birth-giving because not all
birth-givers want to be, and should not be forced to be, mothers. Id. at 38-39.
n305. See Margaret Baldwin, Public Women and the Feminist State,
20 Harv. Women's L.J. 47 (1997); Sally F. Goldfarb, Violence Against Women and the Persistence of Privacy,
61 Ohio St. L.J. 1 (2000); Olsen, supra note 297; Siegel, supra note 16; Laura W. Stein, Living with the
Risk of Backfire: A Response to the Feminist Critiques of Privacy and Equality,
77 Minn. L. Rev. 1153 (1993). Although the accuracy and relevance of the public private debate has been
questioned, the Supreme Court's holding in
United States v. Morrison, 529 U.S. 598 (2000), that the civil rights cause of action provisions under the Violence Against
Women Act (VAWA) are unconstitutional, may reinforce arguments against privacy
doctrine arising out of distinctions between public and private realms. The
Article addresses feminist critiques of family and privacy, although they are
often intermingled with and closely related to the equation of women and
privacy. Accordingly, the Article does not address feminist critiques of
privacy doctrine as a vehicle for individual choice. See MacKinnon, supra note
110, at 1311 (critiquing privacy doctrine as a tool for framing and protecting
women's reproductive rights).
n306. E.g., Okin, supra note 268, at 110-111; Fineman, Intimacy Outside of the
Natural Family: The Limits of Privacy, supra note 103, at 967-69; Glenn, supra
note 254, at 13; Goldfarb, supra note 305, at 4-5; Olsen, The Family and the
Market: A Study of Ideology and Legal Reform, supra note 297, at 1499-1500.
Feminists have also challenged the myth of the private family. See, e.g.,
Baldwin, supra note 305; Fineman, Intimacy Outside of the Natural Family: The
Limits of Privacy, supra note 103; Olsen, The Myth of State Intervention in the
Family, supra note 123; see also Goldfarb, supra note 305, at 25-28 (rehearsing
feminist challenges to the veracity of the market-family dichotomy).
n307. Descriptions of the gendered aspect of the private/public distinction vary and
do not always follow the Article's description, but most see at least a crude
distinction between public and private realms, with women and the family
belonging to the private and the market and politics belonging to the public.
See Baldwin, supra note 305, at 62-63 (describing gendered public-private
dichotomy as excluding women's issues from public discourse, limiting women's
participation in the public sphere, and normalizing women's privatized status);
Dailey, supra note 61, at 998 (describing the conventional view of family
privacy - but not this description of it); Goldfarb, supra note 305, at 22 ("The market-family dichotomy supported a legal system that consigned women to a
domestic sphere in which the law then refused to intervene.").
n308. See Minow
& Shanley, supra note 52, at 17-19 (citing examples of how notions of privacy
militate against women obtaining domestic violence orders of protection and
asserting other rights). Professor Reva Siegel has traced the historical and
current role of privacy doctrine in limiting the rights of women. E.g., Siegel,
supra note 16. Some feminists have claimed privacy as a vehicle to promote
women's freedom. See Singer, supra note 238, at 1517-22 (rehearsing feminist
arguments that private ordering of family relationships promotes women's
n309. Glenn, supra note 254, at 13; Goldfarb, supra note 305, at 22; Siegel, Home,
supra note 67. But see Martha Minow,
"Forming Underneath Everything that Grows:" Toward a History of Family Law,
1985 Wis. L. Rev. 819, 846-84 (describing public lives of women in the past several hundred years). Enslaved
women (and men and children), though privately
"owned," were very much in the market as mere commodities and as producers of
commodities, frequently working alongside men.
Id. at 861. The feminization of family also accounts for why the federal courts eschew
domestic relations cases. Naomi R. Cahn, Family Law, Federalism, and the
79 Iowa L. Rev. 1073 (1994).
n310. Siegel, Home, supra note 67 (describing how historical separation of spheres
reinforced husband's control of family assets and undervalued household labor);
Singer, supra note 238; at 1560-61.
n311. Eichner, supra, note 112, at 156-68; Singer, supra note 238, at 1563-64. But
see Kindred, supra note 87, at 537-38 (arguing that if the state is empowered
to interfere in the private family to ensure that children are clothed, fed,
and sheltered, the state itself must have a duty to provide benefits to insure
parents can adequately clothe, feed, and shelter their children).
n312. See Eichner, supra note 112; Fineman, supra note 52, at 7; Singer, supra note
238, at 1561.
n313. See, e.g., MacKinnon, supra note 110, at 1311 (arguing privacy belongs to
those with power and is a hell hole for those without); Frances Olsen,
Constitutional Law: Feminist Critiques of the Public/Private Distinction,
10 Const. Comment. 319, 322-23 (1993) (noting that feminist rejection of public-private dichotomy has permitted the
movement of rape out of the private realm, as a sexual act, and into the public
realm, as a crime of violence); Elizabeth M. Schneider, The Violence of
23 Conn. L. Rev. 973, 974, 984-86 (1991) (claiming that the legal notion of family privacy has encouraged and
reinforced violence against women and children by shielding it, immunizing it,
and characterizing it as an individual, not systemic, problem); Siegel, supra
note 16 (historical, legal account of private spheres that tolerated wife
n314. Siegel, supra note 16, at 2122; Carl Tobias, Interspousal Tort Immunity in
23 Ga. L. Rev. 359, 362-64 (1989).
n315. See Goldfarb, supra note 305, at 22-24 (describing how doctrines like
interspousal tort immunity, the marital rape exemption, and laws of coverture,
which permit a husband to discipline his wife, have historically shielded
domestic violence and continue to shape ideology inhibiting protection of women
from intimate violence inside and outside the marital relationship).
n316. See id. at 36-41 (describing how even violence against women by state actors
is privatized and restating feminist critiques of state-civil society
dichotomy). The Supreme Court's decision in
United States v. Morrison, 529 U.S. 598 (2000), holding that the pervasive violence against women and the subordination of
women, as well as the inadequate local response, does not give rise to a civil
rights remedy under the 14th amendment enforcement clause, may be an example of
the deeply embedded exclusion of women from full citizenship. Although the
Supreme Court did not base its ruling in Morrison directly on any claim that
violence against women is private, and therefore, off limits, the Court's
refusal to extend a federal civil rights remedy to women victimized by
gender-based violence may arise out of deeply held connections between family
privacy ideology and doctrine. See, e.g., Cahn, supra note 309, at 1105;
Goldfarb, supra note 305, at 33. Indeed, prior to the Violence Against Women
Act's enactment (the federal statute at issue in Morrison), Chief Justice
Rehnquist warned that its private cause of action provision
""could involve the federal courts in a whole host of domestic relations
disputes.'" Judith Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating
the Violence Against Women Act,
74 S. Cal. L. Rev. 269, 271 (2000) (quoting William H. Rehnquist, Chief Justice's 1991 Year-End Report on the
Federal Judiciary, Third Branch, Jan. 1992, at 3). The Morrison majority held
that there was no basis for federal jurisdiction over gender-motivated
violence, because violence against women does not implicate state action or the
market (interstate commerce).
529 U.S. at 612-13, 619-27. This ruling echoes the traditional equation of women with the family, and not
with the market or the polity, harkening back to the laws of coverture that
kept domestic relations out of federal courts because a husband and wife were
not considered diverse. See Goldfarb, supra note 305, at 28-33 (discussing
connection between the federal domestic relations exemption and family privacy
doctrine and ideology); Resnik,
"Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, supra note 8, at
1698 (tying ideological constructions of women as private, domestic actors to
the federal court's resistance to assume jurisdiction of
"domestic" matters); see also Cahn, supra note 309, at 1102-04 (describing domestic
relations exception, but noting that federal courts do hear certain family law
n317. See generally Baldwin, supra note 305; West, supra note 258.
n318. E.g., MacKinnon, supra note 110, at 1311-13; Schneider, supra note 313.
n319. See generally Fineman, supra note 103.
n320. E.g., Linda Gordon, Family Violence, Feminism, and Social Control, in
Rethinking the Family, supra note 136, 262, 281-82; Schneider, supra note 313,
n321. See Olsen, supra note 297, at 1567-78 (arguing that unifying market and family
will both bring communal values to the marketplace and help transcend the
male-female dichotomy, although Olsen signifies the market as private).
n322. Fineman, supra note 287, at 2205.
n323. Schneider, supra note 313, at 994-97.
n324. Id.; Stein, supra note 305, at 1155.
n325. The Article does not intend to minimize intractable problems women and
children face when multiple persons compete for the paternal role or
non-supportive fathers interfere with mothers' autonomy. Others have advocated
models to resolve or minimize these problems. E.g., Baker, supra note 55;
Czapanskiy, supra note 135; Fineman, supra note 110.
n326. Some critics would define parents according to their prebirth intention to
parent regardless of their physical or genetic relationship to the child. See
supra text accompanying notes 230-53. Critics, such as some advocates for same
sex parents, would base their definition of parents on adult affectional
relationships. See supra text accompanying notes 211-28.
n327. Most of the feminist critiques do not advocate new definitions of parents or
intervention standards. Instead, reduction of family privacy is a by-product of
much of the analysis that devalues or universalizes maternal biological
connections and that criticize family privacy. The Article addresses these
revisionist perspectives in the next two subsections.
n328. Intervention also occurs when the state investigates abuse and neglect
allegations and takes further child-protective action. The revisionist
standards I review in this subsection do not address abusive and neglectful
parents, but instead intervention into fit parents' decisionmaking.
n329. Intervention rather than decisional standards after intervention are addressed
because it is at this point of intervention that the family's privacy is
invaded. A discussion of the relationship between the various decisional and
intervention standards, including deference and burdens of proof, is so complex
and variable that it would require separate treatment.
n330. This model holds that parents do not have rights but are trustees serving
their children's presumed wishes or state-defined interests. See supra text
accompanying notes 141-55.
n331. This model grants parental status to persons whom the parent has allowed to
live with and care for the child as a parent. See supra text accompanying notes
164-74. The de facto parent model includes lesbian and gay perspectives that
promote co-parent adoption and visitation with the child post dissolution of
the adult relationship. See supra text accompanying notes 211-28.
n332. The non-consensual de facto parent model grants parental status on the sole
basis of the psychological relationship between the child and de facto parent.
It does not depend on consent or parental unfitness. See supra text
accompanying notes 176-87.
n333. The private adoption promotion model permits third parties to attain parental
status solely by filing an adoption petition. See supra text accompanying notes
188-92. A discussion of the ASFA (public adoption) is not included in this
analysis because, for the most part, intervention results from child abuse and
neglect. The adoption promotion occurs after that initial intervention.
n334. The procreational rights model defines parent by pre-birth (even
pre-conception) intent to parent. See supra text accompanying notes 249-53.
This and the adoption promotion model may encompass other reproductive
technology perspectives for purposes of this discussion.
n335. For example, if one parent refuses to consent to the adoption or revokes a
prior consent, then the court could determine who among the parties before it
should rear the child.
n336. As Professor Kate Nace Day described her feelings as a child for her nanny:
"I could no more discern the difference between hands that held me as work, and
hands that held me as love." Kate Nace Day, Judicial Voice: Judge Julia Cooper Mack and Images of the
40 How. L.J. 331, 346 (1997).
n337. See Appell, supra note 7, at 1014-16 (describing deep and persistent
attachments adoptees have to their birth families).
n338. See, e.g., Brooks, supra note 156, at 957-961 (describing family systems
Davis, supra note 157, at 354-64 (describing family network model).
n339. Professor Guggenheim makes a similar point in the context of curbing the
discretion of children's lawyers to make their own choices regarding what is
good and bad for children, thereby usurping substantive legal standards. See
Guggenheim, supra note 138, at 1507-08.
n340. See Eva Rubin, The Supreme Court and the American Family: Ideology
& Issues 47-49 (1986); Appell, supra note 5, at 584-87; Fineman, supra note 110,
at 177-78. Judith Bradford and Crispin Sartwell capture the dimensions of
nuclear family privacy:
"family space' that accompanies the model of the nuclear family is both a social
and physical space. Polite neighbors avert their eyes from family matters, and
house walls hide them... . Privilege preserves the nuclear family from both
visibility and questionability. No one asks:
"What the hell is wrong with your mother?'" Bradford
& Sartwell, Addiction and Knowledge: Epistemic Disease and the Hegemonic Family,
in Feminism and Families 116, 123 (Hilde Lindemann Nelson ed., 1997).
n341. See Fineman, supra note 110, at 177-78 (explaining that the state intervenes
into single mother families because these families have a void - they are
lacking a father); Patricia Hill Collins, Shifting the Center: Race, Class, and
Feminist Theorizing About Motherhood, in Representations of Motherhood, supra
note 254, 56, 59 (noting that outside forces threaten the integrity of
non-dominant families); Fineman, supra note 103, at 958-59.
n342. See, e.g.,
Collins, supra note 341, at 56-57 (arguing that critiques of motherhood based on male
domination are decontextualized vis-a-vis women in alternative family
structures); Denise A. Segura, Working at Motherhood: Chicana and Mexican
Immigrant Mothers and Employment, in Mothering: Ideology, Experience, and
Agency, supra note 136, 210, 213 (noting presumption that motherhood is
oppressive and that women do not work outside the home). Such views of families
and motherhood may arise from privileged perspectives.
Collins, supra note 341, at 59-60. Indeed, a primary result of middle class women's foray out
of the home and into the workplace has not been a less gendered division of
labor within the home, but instead a shift in the responsibility for that labor
to women of color. See
Roberts, supra note 266, at 236 (noting that Black women have filled this role).
n343. See Iglesias, supra note 136, at 903-05, 915-28, 989; see also Bell Hooks,
Feminist Theory: From Margin to Center 133 (1984) (claiming that although White
women in the early women's movement viewed motherhood as an obstacle to women's
liberation, Black women historically have viewed it as humanizing
Collins, supra note 341, at 67 (women of color view mothering as work on behalf of the family
as a whole, not on behalf of a patriarch). Of course, any generalized
discussion of experiences of motherhood and the family (including the
discussion in this Article) risks oversimplification and the submersion of
individual and cultural differences among women. See Segura, supra note 342, at
212 (noting that research on Mexican and Chicana mothers revealed differences
between views of motherhood and employment, although
"current research on Mexican-origin women ... treats them as a single analytic
category ... as well as research on contemporary views of motherhood that fails
to appreciate diversity among women").
Collins, supra note 341, at 64-66; Glenn, supra note 254, at 17-19. Patricia Williams captures
the devaluation of African American mothers and their children when she
contrasts the common theme of welfare reform that
"black women have no business having any more children" with the encouragement of
"poor white women who have children out of wedlock ... to give up their children
for adoption and redistribution in the great
"white baby shortage.'" Patricia J. Williams, The Roosters Egg 9 (1995); see also Rickie Solinger,
Wake Up Little Suzie: Single Pregnancy and Race Before Roe v. Wade 20-40 (1992)
(describing the early 20th century policies and laws that prevented unwed
African American mothers from relinquishing their children for adoption while
mandating White unwed mothers to do so). The history of birth control and
forced sterilization also reflects this denigration of Black women and
Roberts, supra note 261, at 31-32 (explaining the racism of the early feminist birth control
movement that aimed at reducing the birth rate of African American children and
detailing the disproportionate sterilization of Black women). Indeed, framing
reproductive choice in the context of safe, unrestricted abortion, and not
resources for healthy pregnancy and parenting illustrates too the privileging
of White, middle class women. Id. at 32-33.
n345. Boris, supra note 267, at 30; see also Kathleen Neal Cleaver, Racism, Civil
Rights, and Feminism, in Critical Race Feminism 35, 37-39 (Adriene Katherine
Wing ed., 1997) (contrasting White women's liberations movement fighting
against their own oppression within dominant culture while African American
women fought for liberation from dominant culture).
Collins, supra note 341, at 58; see also Glenn, supra note 254, at 15-16 ("An ideology that places mothering exclusively in the private, emotional realm
creates conflicts for mothers who have to work outside the home.").
n347. Boris, supra note 267, at 29;
Collins, supra note 341, at 56-64; Marlee Kline, Race, Racism, and Feminist Legal Theory,
12 Harv. Women's L.J. 115, 130-31 (1989);
Roberts, supra note 266, at 235. In June 1990, a majority of White mothers (54.9%) and nearly
half of Black (46.9%) and Latina (44.4%) mothers were working for wages.
Segura, supra note 342, at 228 n.3. Historically, African American women
particularly have worked outside the home. By the early twentieth century, up
to seventy percent of African American women were wage earners - nearly five
times that of white women. Boris, supra, at 28. Most of these women were
working as domestics, often caring for the children of more privileged women.
Id. at 29;
Collins, supra note 341, at 56-64; see also Kline, supra, at 130-31 (noting that West Indian
women emigrate to Canada specifically to work as domestics);
Roberts, supra note 266, at 235 ("Women of color continue to do most of the domestic service in America."); Mary Romero, Who Takes Care of the Maid's Children? Exploring the Costs of
Domestic Service, in Feminism and Families, supra note 340, 151.
Roberts, supra note 266, at 236 ("Black women historically experienced work outside the home as an aspect of
racial subordination and the family as a site of solace and resistance against
n349. See Boris, supra note 267, at 34; Barbara Omolade, The Unbroken Circle: A
Historical and Contemporary Study of Black Single Mothers and their Families,
3 Wis. Women's L.J. 239 (1987); Perry, supra note 289, at 52-53. Female slaves were not even relieved from
their other work while producing children. Nancy Folbre, Who Pays for the Kids?
169 (1994) ("African-American women performed extraordinarily demanding physical labor, even
while pregnant or nursing."); see also
Roberts, supra note 266, at 233-34 (noting that slave women's strenuous labor challenged the
dominant ideology associating mothers with frailty and domesticity).
Roberts, supra note 258, at 146. Other women of color too are at greater risk than white women
of losing their children to the state or having diminished opportunities to
parent due to the economic necessity of working. Kline, supra note 347, at 132.
n351. See Boris, supra note 267, at 34;
Roberts, supra note 239, at 250-51.
n352. Appell, supra note 5, at 578; Peggy C. Davis
& Richard G. Dudley, Jr., The Black Family in Modern Slavery, 1987 Harv.
BlackLetter L.J. 9. For a recent account of, and explanation for, the
disproportionate number of African American children in the child welfare
system, see generally Dorothy Roberts, Shattered Bonds (2002).
n353. See Fineman, supra note 103, at 958; Shapiro, supra note 211, at 19, 31.
n354. Baker, supra note 55, at 1526; Fineman, supra note 103, at 961.
& Polikoff, supra note 166, at 533-37.
n356. Baker, supra note 55, at 1569-74.
n357. Appell, supra note 5, at 584; Marsha Garrison, Child Welfare Decisionmaking:
In Search of the Least Detrimental Alternative,
75 Geo. L.J. 1745, 1810 (1987);
Roberts, supra note 258, at 148; see also Rayna Rapp, Family and Class in Contemporary
America: Notes Toward an Understanding of Ideology, in Rethinking the Family,
supra note 136, 49, 58-59, 65 (noting that sociologists have studied poor
African American families more than poor white families, and that upper class
families are not even subjected to studies). This is not to say that middle
class families do not receive numerous and valuable government benefits through
tax, inheritance, and marriage laws that, among other things, exclude employer
contributions to health and life insurance policies from taxable income.
Fineman, supra note 287, at 2205; see also Stephanie Coontz, The Way We Never
Were 68-92 (1992) (describing the pervasive and nearly invisible benefits
middle and upper class families receive). Nevertheless, public discourse views
these families as
"self sufficient" and
"independent" while it views non-dominant families as needy, inadequate and a threat to
social mores and the public fisc. Fineman, supra note 287, at 2213.
n358. See Rubin, supra note 340, at 147 ("The traditional privacy of the home, and the freedom to govern family
relationships in that protected environment free from government intrusion, has
not applied to welfare families."). Poor women of color are most likely to be subjected to forced medical
treatment regarding pregnancy. Nancy Ehrenreich, The Colonization of the Womb,
43 Duke L.J. 492 (1993); Lisa C. Ikemoto, Furthering the Inquiry: Race, Class, and Culture in the
Forced Medical Treatment of Pregnant Women, in Critical Race Feminism supra
note 345, 136, 139-40; see also Dorothy Roberts, Motherhood
79 Iowa L. Rev. 95, 124 (1993) (describing surveillance of pregnant women).
n359. See Catherine R. Albitson
& Laura Beth Nielson, Welfare Queens and Other Fairy Tales: Welfare Reform and
Unconstitutional Reproductive Controls,
38 How. L.J. 473, 478-80 (1995); Joel F. Handler,
"Constructing the Political Spectacle": The Interpretation of Entitlements, Legalization, and Obligations in Social
56 Brook. L. Rev. 899 (1990); see also Martha Minow, The Welfare of Single Mothers and their Children,
26 Conn. L. Rev. 817, 830-31 (1994) (noting the difference between widow and AFDC benefits); Leroy Pelton, Welfare
Discrimination and Child Welfare,
60 Ohio St. L.J. 1479, 1479-80 (1999) (recognizing both difference between Social Security's treatment of poor
elderly and single mothers and its payment to foster families and single
mothers); Lucy A. Williams, Race, Rat Bites and Unfit Mothers: How Media
Discourse Informs Welfare Legislation Debate,
22 Fordham Urb. L.J. 1159, 1175-77 (1995) (noting frequently race-based exclusions of women from early AFDC program).
n360. See generally
Wyman v. James, 400 U.S. 309 (1971) (requiring women receiving AFDC benefits to permit state social workers to
conduct police-like searches of their homes without a warrant).
n361. See generally
Harris v. McRae, 448 U.S. 297 (1980).
n362. See Dorothy Roberts, The Only Good Poor Woman: Unconstitutional Conditions and
72 Denv. U. L. Rev. 931, 941-42 (1995); see also Callahan
& Roberts, supra note 14, at 1198 (noting that seventy-five percent of women
placed on Norplant as a condition of probation for child abuse and neglect are
minority women and one hundred percent are poor).
n363. See Katherine Hunt Federle, Child Welfare and the Juvenile Court,
60 Ohio St. L.J. 1225, 1225-29 (1999) (noting that welfare law restricted mothers from living with men and from
having children with men to whom they were not married); see also Roberts, The
Only Good Poor Woman:
Unconstitutional Conditions and Welfare, supra note 362, at 941-42 (discussing increased regulation of families receiving
n364. Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified as amended in scattered
sections of 42 U.S.C.).
n365. Federle, supra note 363, at 1229.
n366. See Tonya L. Brito, The Welfarization of Family Law,
48 U. Kan. L. Rev. 229, 265-67 (1999) (noting distinction between support requirements for families on and off the
Id. at 246 (citing
42 U.S.C.S. 608(b)(2)(A)(ii) (Lexis 1998)). Some states condition support on the children's
grades, parental attendance at parent-teacher conferences and participation in
family counseling. See Brito, supra note 366, at 246-47.
n368. See Fineman, supra note 103, at 964-65 (noting how the states force women on
public aid to submit to paternity and child support proceedings regardless of
the mother's desire to involve the father and discussing court intrusion into
single mother's extra familial relationships). This support enforcement
requirement usually applies to mothers, but also applies to custodial fathers
and other custodial relatives. Parents who do not receive aid can determine for
themselves whether to seek support and how much. If they cannot agree, about
custody and support, however, then a court may decide.
n369. Daan Braveman
& Sarah Ramsey, When Welfare Ends: Removing Children From The Home For Poverty
Alone, 70 Temp. L. Rev. 447 (1997); Garrison, supra note 357. Ironically, the
public system, characterized by coercive state intervention into families, is
shielded from public view by confidentiality laws, while the more private
system is open to public view. Adoption proceedings, which may be consensual or
coercive, are also confidential. Elizabeth J. Samuels, The Idea of Adoption: An
Inquiry into the History of Adult Adoptee Access to Birth Records,
53 Rutgers L. Rev. 367, 374-77 (2001).
n370. Judge Leonard P. Edwards, The Relationship of Family and Juvenile Courts in
Child Abuse Cases,
27 Santa Clara L. Rev. 201, 205, 207 (1987). Indeed in family court, private parties, usually one of the parents, initiate
n371. Garrison, supra note 158, at 395; Garrison, supra note 357, at 1769-70; see
also Czapanskiy, supra note 135, at 968 (noting that noncustodial parents
nearly always given visitation).
n372. See Edwards, supra note 370, at 206 (noting that the state takes an assertive
role in and is a party to the proceedings). Some characterize public benefits
system (AFDC and now TANF) as the public family law of the poor. Rubin, supra
note 340, at 147-48.
n373. Although the private family law also may be intrusive and coercive, the
distinctions between these two systems of family law and litigation are stark
and well-documented. See, e.g., Edwards, supra note 370; Marsha Garrison, Why
Terminate Parental Rights?,
35 Stan. L. Rev. 423, 432-42;
Gordon, supra note 320; Jean Koh Peters, Three Systems of Family Law: A Preliminary
Historical Investigation, in Jean Koh Peters, Representing Children in Child
Protective Proceedings app. A (1997). Of course, these certainly are not the
only family law systems. Native American and enslaved African American families
have, for example, experienced extraordinarily detrimental race based de jure
treatment. Laws sanctioned widespread removal of Native American children from
their families and reservations. See Monsivais, supra note 127, at 2. See
generally The Destruction of American Indian Families (Stephen Unger ed.,
1977). Currently, Native Americans may enjoy a distinct de jure family law
designed to remedy past Anglo-American violations and promote, and preserve,
Native American tribal norms. See Indian Child Welfare Act of 1978,
25 U.S.C. 1901 (Lexis 2001) (providing special procedure for custody and adoption proceedings
involving Native American children); Barbara Ann Atwood, Tribal Jurisprudence
and Cultural Meanings of the Family,
79 Neb. L. Rev. 577 (2000) (reporting distinctions between Anglo-American and tribal family
jurisprudence). Laws pertaining to slaves prohibited marriage and any rights to
rear or direct the rearing of their children, while literally allowing fathers
to own their children and brothers to own their siblings. E.g.,
Davis, supra, note 9; Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum
51 Stan. L. Rev. 221 (1999) (examining antebellum and post bellum testamentary and interstate laws as
applied to relationships involving enslaved and formerly enslaved people);
Peters, supra note 373; see also Peggy Cooper Davis, Introducing Robert Smalls,
69 Fordham L. Rev. 1695, 1702 (2001) (describing Robert Smalls who when a slave had been the property of his
n374. See Mason, supra, note 16, at 189-91 (describing child saving movement and
"two-tiered system in dealing with poor children and relatively rich children in
custody matters"); Leroy Pelton, For Reasons of Poverty: A Critical Analysis of the Public
Child Welfare System in the United States (1989) (describing long history of
U.S. efforts to rescue poor children from their families); Jim Hacsi, From
Indenture to Family Foster Care: A Brief History of Child Placing, 74 Child
Welfare 162 (1995) (describing and connecting the historic and contemporary
treatment of poor or orphaned children from private and public indenture,
orphanages and family placement to modern pubic foster care); Peters, supra
note 373, at 242-43, 246-47 (briefly rehearsing both poor laws and
& Ramsey, supra note 369, at 461-62; Cahn, supra note 52, at 1244; Garrison,
supra note 357, at 1810.
n376. See Pelton, supra note 359, at 1486 (noting that a recent national study
revealed conflation of poverty and neglect); see also Braveman
& Ramsey, supra note 369, at 461-62 (discussing the correlation of poverty and
child maltreatment); Cahn, supra note 194, at 1199 (discussing the connections
between poverty and neglect); Federle, supra, note 363, at 1235 ("The dependency and foster care systems have retained certain practices that
make poor children more likely to be the subject of a petition and less likely
to escape foster care."); Hacsi, supra, note 374, at 163 ("Parental poverty has always increased the risk of children being removed from
their families and placed elsewhere, whether in other homes or institutions."); Kindred, supra note 87, at 534 ("State child services agencies and the juvenile courts routinely rely on neglect
statutes to remove children from the homes of impoverished parents.").
n377. For descriptons of the child welfare system, see Appell, supra note 5; Emily
Buss, Parents' Rights and Parents Wronged,
57 Ohio St. L.J. 431 (1996); Jill Chaifetz, Listening to Foster Children in Accordance with the Law: The
Failure to Serve Children in State Care,
25 N.Y.U. Rev. L. & Soc. Change 1 (1999).
n378. U.S. Health
& Human Services, The AFCARS Report (Current Estimates as of October 2000(4)),
available at http://www.acf.dhhs.gov/programs/cb [hereinafter AFCARS Report].
The race/ethnicity of the remaining four percent (25,346) of the children is
unknown. Id. U.S. Census Bureau counts membership in the general United States
population, using similar categories, as follows: Black Non-Hispanic 12.2 %,
White Non-Hispanic 71.3%, Hispanic, 11.9%, Native American 0.7%, Asian/Pacific
Islander, 3.8%. U.S. Census Bureau, Resident Populations Estimates of the
United States by Sex, Race and Hispanic Origin: April 1, 1990 to July 1, 1999,
with Short Term Projection to November 1, 2000, at
http://www.census.gov/population/estimates/nation/intfile3-1.txt (last visited
July 27, 2001).
n379. Staff of House Committee on Ways and Means, 106th Cong., 2nd Sess. 2000 Green
Book 714-15 (Comm. Print 2000); Pelton, supra note 359, at 1487-89.
n380. Appell, supra note 5, at 584; Braveman
& Ramsey, supra note 369, at 461-462.
n381. Brett Drake
& Susan Zuravin, Bias In Child Maltreatment Reporting: Revisiting the Myth Of
Classlessness, 68 Am. J. Orthopsychiatry 295 (1998); Jill E. Korbin et al.,
Neighborhood Views On The Definition and Etiology of Child Maltreatment, 24
& Neglect 1509 (2000).
n382. Throughout this discussion,
"intervene" is used to include decisions to contact the child abuse and neglect hotline,
to investigate allegations, to find those allegations to be founded, to
coercively provide services, and to remove children from their families.
n383. Bilha Davidson Arad, Parental Features and Quality of Life in the Decision to
Remove Children at Risk from Home, 25 Child Abuse
& Neglect 47, 48 (2001); Ira J. Chasnoff et al., The Prevalence Of Illicit-Drug
Or Alcohol Use During Pregnancy and Discrepancies In Mandatory Reporting In
Pinellas County, Florida,
322 New Eng. J. Med. 1202 (1990); Anne P. Vulliamy
& Richard Sullivan, Reporting Child Abuse: Pediatricians' Experiences with the
Child Protection System, 24 Child Abuse
& Neglect 1461 (2000). Studies also show that loyalty to or familiarity with
parents correlate to a reduced likelihood of reporting suspicions of child
abuse and neglect to authorities; Korbin et al., supra note 381; Gail Zellman,
The Impact Of Case Characteristics on Child Abuse Reporting Decisions, 16 Child
& Neglect 57 (1992). This familiarity may also be a class marker if richer
families are more likely to have social relationships with their doctors, are
more likely to spend more time with doctors at visits, are more likely to have
the same doctor each time they seek medical care, or are more likely to be able
to afford preventive rather than just emergency care.
n384. See Drake
& Zuravin, supra note 381 (rehearsing studies and arguing those showing such
biases are faulty).
n385. See Judith Larsen et al., Medical Evidence in Cases Of Intrauterine Drug
18 Pepp. L. Rev. 279, 287-88 (1991) (noting the similarities between factors used in assessment for prenatal drug
use and factors associated with poverty, including lack of prenatal care).
Indeed, some legal definitions of abuse and neglect are skewed toward children
in poverty. See
id. at 282-83 (discussing the broad use of child endangerment statutes).
n386. See Zellman, supra note 383, at 69 (remarking that socioeconomic status and
race had an effect on reporting judgments). Particularly noteworthy in
Zellman's study is that when race and socioeconomic status were subtly stated,
they had a greater effect on reporting, but when they were clearly stated, they
had less effect. See id. at 69-70. These findings suggest that unconscious
biases affect intervention decisions. See Sandra T. Azar
& Corina L. Benjet, A Cognitive Perspective on Ethnicity, Race, and Termination
of Parental Rights, 18 Law
& Hum. Behav. 249 (1994) (describing the role of unconscious cultural values
that influence professional and judicial assessments of the adequacy of
parenting); Loring Jones, Decision Making in Child Welfare: A Critical Review
Of The Literature, 10 Child
& Adolescent Soc. Work J. 241, 258-59 (1993) (noting individual discretion in
child protection decisions and suggesting methods of recognizing and reducing
bias); Edward J. Saunders et al., Racial Inequality and Child Neglect: Finding
in a Metropolitan Area, 72 Child Welfare 341, 351 (1993) (describing biased
assessments and methods for suggesting reducing child welfare confusion of
cultural difference with pathology); Sylvia Sims Gray
& Lynn M. Nybell, Issues In African-American Family Preservation, 69 Child
Welfare 513 (1990) (describing important cultural differences between African
American and white families and suggesting strategies for the predominantly
white child welfare establishment to better communicate with and provide
services to African American families).
n387. See Chasnoff et al., supra note 383; Larsen et al., supra note 385, at 287-88;
Oberman, supra note 268, at 510-11;
Roberts, supra note 358; Dorothy Roberts, Unshackling Black Motherhood,
95 Mich. L. Rev. 938 (1997). Inger Sagatun-Edwards
& Coleen Saylor, Drug-Exposed Infant Cases in Juvenile Court: Risk Factors and
Court Outcomes, 24 Child Abuse
& Neglect 925, 927 (2000). These biases are further exacerbated because states
are more likely to remove drug exposed infants from their mothers than they are
likely to remove children for other abuse or neglect, and states are less
likely to return drug exposed infants than children harmed by other abuse and
neglect. See Sagatun-Edwards
& Saylor, supra, at 928, 932.
n388. Even assuming the families in the child protective system are truly at risk,
there is much dispute as to whether that system is the appropriate method of
intervention, particularly if there is a causal relationship between child
abuse and neglect and poverty. Pelton, supra note 359; Elizabeth D. Hutchison,
Mandatory Reporting Laws: Child Protective Case Finding Gone Awry?, 38 Soc.
Work 56 (1993).
n389. Appell, supra note 5, at 582-83 (describing the child welfare system).
n390. For example, children are not usually parties to divorce and custody
proceedings or provided with separate legal representation, although domestic
relations statutes provide for such appointments in certain situations. See
Martin Guggenheim, Reconsidering the Need for Counsel for Children in Custody,
Visitation and Child Protection Proceedings,
29 Loy. U. Chi. L.J. 299, 307, n.35 (1998) (listing statutes providing for appointment and under what circumstances).
Moreover, custody usually resides in whole or part with parents, even those who
have had little child giving role in the child's life. See Garrison, supra note
158, at 373-374.
n391. Payments to foster parents, group homes, and adoptive parents who adopt abused
and neglected children, are significantly higher than benefits under TANF or
its predecessor AFDC. Garrison, supra note 357, at 1814; Leroy Pelton, Child
Welfare Policy and Practice: The Myth of Family Preservation, 67 Am. J.
Orthopsychiatry 545, 548-49 (1997). In addition, there are greater federal
financial incentives for state agencies to provide foster care, rather than
family preservation services. ASFA limits the amount of time a state may
provide family preservation services,
42 U.S.C.S. 629a(7) (Lexis 1998
& Supp. 2001), provides technical assistance for expediting adoptions,
42 U.S.C.S. 673b(i) (Lexis 1998), and financial incentives for adoption,
42 U.S.C.S. 673(a)
& 673b (Lexis 1998
& Supp. 2001). See also Garrison, supra note 357, at 1813 ("Neglected children are popular, but welfare recipients are not."). Indeed, estimated federal funding for foster care was approximately $ 3.6
billion in 1997 and only $ 500 million for family preservation and support
services that same year. Pelton, supra note 359, at 1489 ("Child removal is a way to serve
"innocent' children without
n392. Appell, supra note 5, at 600; Margaret Beyer, Too Little, Too Late: Designing
Family Support to Succeed,
22 N.Y.U. Rev. L. & Soc. Change 311, 312-313 (1996); Brooks, supra note 156, at 955-59; Garrison, supra note 158, at 374. Even
family preservation services - those services intended to keep children from
coming in to foster care - are defined not to serve the families who need the
"chronically troubled families, families
"unmotivated' to get help, families with addicted care-givers, and homeless
families," and families not amenable to short term treatments. Sandra M. Stehno, The
Elusive Continuum of Child Welfare Services: Implications For Minority Children
and Youth, 69 Child Welfare 551, 554 (1990). Instead, family preservation
services are designed on a short-term crisis intervention model that insures
these services will help a small minority of the families in need. Ira M.
& Gideon Fishman, Kids Raised by the Government 43-46 (1999). Moreover, this
model was developed in White, non-urban areas so it is not surprising that it
may not be appropriate for the communities that populate child welfare in the
largest numbers. See Stehno, supra at 554.
Davis, supra note 9, at 348.
n394. Appell, supra note 5, at 605-06; Beyer, supra note 392, 312-313; Brooks, supra
note 156, at 958; Buss, supra note 377, at 438-43; Oberman, supra note 268, at
n395. Approximately one-third of children in foster care never return to their
parents. U.S. General Accounting Office, Foster Care: HHS Could Better
Facilitate the Interjurisdictional Adoption Process 9 (GAO HEHS-00-12, Nov.
& Fishman, supra note 392, at 49; Appell, supra note 5; Beyer, supra note 392,
at 313, 324; Saunders, et al., supra note 386, at 351; Clarice Dibble Walker et
al., Parental Drug Abuse and African-American Children in Foster Care, in 1
Child Welfare Research Review 109, 114-17 (Richard Barth et al. eds., 1994).
Others argue that too many services are provided to families in the child
welfare system. E.g., Bartholet, supra note 188.
n397. U.S. General Accounting Office, Testimony, Parental Substance Abuse:
Implications for Children, the Child Welfare System, and Foster Care Outcomes 4
(statement of Jane L. Ross, Director, Income Security Issues, HEHS)
(T-HEHS-98-40 Oct. 1997) [hereinafter Ross Testimony]; see also U.S. General
Accounting Office, Foster Care: Agencies Face Challenges Securing Stable Homes
for Children of Substance Abusers 2 (HEHS-98-182, September 1998) [hereinafter
Stable Homes] (study finding two-thirds of foster children in Illinois and
California had at least one parent who abused drugs or alcohol, and noting the
total foster care population in Illinois and California constitutes twenty-five
percent of the nation's foster children). Drug use may be a barrier to family
reunification in sixty-five and seventy-four percent of dependency cases in
California and Illinois, respectively. Id. at 8-9.
n398. Ross Testimony, supra note 397, at 7; Stable Homes, supra note 397, at 20-21.
In addition, child welfare workers may not be familiar with substance abuse
programs or treatment. Lisa D'Aunno
& Gay Chisum, Parental Substance Abuse and Permanency Decision Making: Measuring
Progress in Substance Abuse Recovery, 18 Child's Leg. Rts. J. 52, 54 (1998);
Stable Homes, supra note 397, at 20. But see Stable Homes, supra note 397, at
28-32 (describing child welfare programs designed specifically to reunify
substance abusing parents and their children).
n399. Ross Testimony, supra note 397, at 7-8; D'Aunno
& Chisum, supra note 398, at 53.
n400. This is the author's experience in two different urban jurisdictions (Cook
County, Illinois and Clark County, Nevada). See also Appell, supra note 5, at
592 (describing a case in which a mother was required to have six consecutive
months of drug free urine, in order to obtain even unsupervised visits with her
daughters). Others have noted unrealistic judicial expectations of recovery.
See Richard C. Boldt, Evaluating Histories of Substance Abuse in Cases
Involving the Termination of Parental Rights,
3 J. Health Care L. & Pol'y 135, 142-44 (1999) (describing judicial treatment of relapse as failure); Judith Larsen
& Cindy S. Lederman, Drug-Exposed Infants and the Miami Criteria For Judicial
Decisions in Dependency Cases, 14 Int'l J.L., Pol'y
& Fam. 86, 97 (2000) (noting that parent child contact may be barred if the
parent is not completely abstinent and how punitive and unsound this approach
is). Many experts recognize that relapse is part of recovery and advocate
looking at patterns and length of drug use as well as involvement in treatment
and recognition of triggers when assessing whether the child can safely return
& Chisum, supra note 398, at 53.
n401. See Pelton, supra note 359, at 1485-86. In fact, a number of social scientists
have characterized the primary problems of the families in child welfare to be
poverty related and have suggested that the child welfare system, with its
focus on individual family pathology and substitute care, is an inappropriate
response to what are at root economic problems. Eric C. Albers et al., Children
In Foster Care: Possible Factors Affecting Permanency Planning, 10 Child
& Adolescent Soc. Work J. 329, 340 (1993); Leroy Pelton, Enabling Public Child
Welfare Agencies to Promote Family Preservation, 38 Soc. Work 491 (1993);
Stehno, supra note 392, at 554.
n402. See Pelton, supra note 359, at 1485; Stehno, supra note 392, at 554; Walker et
al., supra note 396.
n403. Pelton, supra note 359, at 1481-82.
n404. William Wesley Patton
& Sara Latz, Severing Hansel from Gretel: An Analysis of Siblings' Association
48 U. Miami L. Rev. 745, 745 (1994) ("Approximately 35,000 brothers and sisters a year are separated into different
foster or adoptive homes without a formal or statutorily mandated due process
n405. Albers et al., supra note 401, at 330, 338-40.
n406. In addition, recovery from substance abuse is a lifelong process and even
achieving some consistent sobriety is unlikely within the ASFA time frames,
particularly given the under-supply of affordable substance abuse services.
Dorothy Roberts, The Challenge of Substance Abuse for Family Preservation
3 J. Health Care L. & Pol'y 72, 73, 76-80 (1999).
42 U.S.C.S. 671(a)(15)(D)(iii) (Lexis 1998).
n408. Termination of parental rights does not guarantee adoption, but simply makes a
child available for adoption. Recommended approaches advocate termination of
parental rights even when there is no prospective adoptive home in sight.
Donald N. Duquette
& Mark Hardin, U.S. Dep't of Health
& Human Services, Guidelines for Public Policy and State Legislation Concerning
Permanence for Children VI-30 (June 1999).
n409. Martin Guggenheim, The Effects Of Recent Trends To Accelerate The Termination
Of Parental Rights Of Children In Foster Care-An Empirical Analysis In Two
29 Fam. L.Q. 121 (1995). As of September 1999, states reported that 46,000 children are legal orphans
and had been for an average of twenty-three months. AFCARS Report, supra note
378. On average, at any given time, 8,000 legal orphans have no current
prospects for adoption. U.S. General Accounting Office, Foster Care: HHS Could
Better Facilitate the Interjurisdictional Adoption Process 2 (GAO HEHS-00-12,
n410. See Stephanie Jill Gendell, In Search of Permanency: A Reflection on the First
3 Years of the Adoption and Safe Families Act Implementation,
39 Fam. Ct. Rev. 25, 33 (2001) (noting since ASFA, termination of parental rights petitions have increased
and plans to reunify children with their families of origin have decreased).
n411. Just as a privileged perspective may view husbands and fathers as oppressors
of wives, mothers, and children, the view that parents are the oppressors of
children may arise from a privileged perspective of those who have corporal
parents. See, e.g., Woodhouse, supra note 68, at 1827-29; see Annette R.
Appell, The Move Toward Legally Sanctioned Cooperative Adoption: Can it Survive
the Uniform Adoption Act?,
30 Fam. L.Q. 483, 495-500 (1996) (describing importance of birth parents to children in foster care).
Similarly, equating children with slaves seems to be at best hyperbolic and at
worst demeaning to adults who actually are or were slaves and therefore not
permitted to engage in basic autonomous adult actions such as marrying,
choosing whether and how to bear and raise children, owning property, and
voting. See Amar
& Widawsky, supra, note 54; Woodhouse, supra note 54, at 326; see also Buss,
supra note 377, at 439 (For children in state care,
"the only thing worse than being
"owned' by their parents is being owned by the public system.").
n412. Chaifetz, supra note 377, at 2-8, 19-21 (reporting studies showing that foster
children are ten times more likely to be abused, and four times more likely to
be sexually abused, than children in the general population; twenty-two percent
of children in state care claimed they were not getting enough food; and
twenty-six percent claimed they did not have proper seasonal clothing). The GAO
found that there were 77,000 children aged sixteen to twenty in foster care in
1998, but only 42,680 received independent living services. U.S. General
Accounting Office, Foster Care: Effectiveness of Independent Living Services
Unknown 4, 16 (GAO/HEHS-00-13, November 1999)[hereinafter GAO Independent
42 U.S.C.S. 675(5)(C) (Lexis 1998). Every year, approximately 20,000 foster children are
discharged from care because they reach the age of majority, from 18 to 21
GAO Independent Living Services, supra note 412, at 1.
n414. Id. at 3-12 (rehearsing studies and the GAO's own findings that from
twenty-five to fifty-one percent of young
"adults" leaving foster care had been homeless, incarcerated, dependant on public
assistance, without employment and without a highschool education); Mary Lee
& Robin Nixon, The Foster Care Independence Act and John H. Chafee Foster Care
Independence Program: New Catalysts for Reform for Young People Aging Out of
Foster Care, J. Poverty L.
& Pol'y 197, 198-202 (2000) (citing studies showing dependency and homelessness
and reciting testimony of children discharged from foster care as
"adults"). Within a month of release of GAO Independent Living Services, Congress
enacted the Foster Care Independence Act of 1999, designed to provide
additional supports to state independent living programs and foster teens. Pub.
L. No. 106-169 (Dec. 14, 1999) (codified at
42 U.S.C.S. 677 (Lexis Supp. 2001)).
n415. See Appell
& Boyer, supra note 49, at 78-82 (describing indeterminacy of best interests of
the child standard and competing views about what is most important to and for
children). See generally Azar
& Benjet, supra note 386 (discussing cultural diversity regarding assessing
parenting ability and the strength of families);
Davis, supra note 157, at 354-364 (rehearsing different social science theories about
children's developmental needs and different family forms).
n416. Appell, supra note 5, at 585; Marie Ashe,
"Bad Mothers," Good Lawyers," and
81 Geo. L.J. 2533, 2547-51 (1993); Ikemoto, supra, note 358, at 136; Adrien Katherine Wing
& Laura Weselmann, Transcending Traditional Notions of Mothering: The Need for
Critical Race Feminist Praxis,
3 J. Gender Race & Just. 257, 268 (1999). Identifying dominant norms is difficult, due to social changes and a real
diversity of views regarding family. Molly Ladd-Taylor
& Lauri Umanski, Introduction, in Bad Mothers: The Politics of Blame in 20th
Century America 1 (Molly Ladd-Taylor
& Lauri Umanski eds.,1998); Wing
& Weselmann, supra, at 258. But see Nancy E. Dowd, Stigmatizing Single Parents,
18 Harv. Women's L.J. 19 (1995) (describing stigma of single parent families in popular, legal and social
science literature). There is little question, though, that judgments about
mothers are products of group stereotypes, idealized views of maternal conduct,
and legal norms preferring and supporting heterosexual, marital families. Marie
& Naomi R. Cahn, Child Abuse: A Problem for Feminist Theory,
2 Tex. J. Women & L. 75, 99 (1993); Azar
& Benjet, supra note 386. These norms judge women most harshly based on their
membership in a disfavored group and by viewing maternal conduct outside of its
context and without regard to actual care of the child. Ashe, supra, at 2549;
& Umanski, supra, at 3; Wing
& Weselmann, supra, at 258; see also Fineman, supra note 103, at 960 (noting the
"problematization" of single motherhood);
Roberts, supra note 261, at 13-15 (describing devaluation of Black motherhood); Carol B.
Stack, Cultural Perspectives on Child Welfare,
12 N.Y.U. Rev. L. & Soc. Change 539, 541-46 (1983-84) (explaining that ignorance of cultural difference leads to
devaluation of maternal practices). These norms also include being free from
violence, mental illness, and addiction. See Appell, supra note 5 (describing
experiences of such mothers in the child welfare system).
n417. See Azar
& Benjet, supra note 386, at 250, 252 (noting that mental health professionals
have a bias toward promoting
"optimal" families and
"observe families through [their own] cultural filters that operate outside
their awareness and often will persist in their established views in spite of
contradictory evidence.") (citations omitted).
"The relative" is used to underscore that the construction of biology and mothers is social
not natural, and to note the problem of splitting the baby when the role of
"biological mother" is divided between gestational and genetic contributors.
n419. See Lisa C. Ikemoto, The Code of Perfect Pregnancy: At The Intersection of the
Ideology of Motherhood, The Practice of Defaulting to Science, and the
Interventionist Mindset of Law,
53 Ohio St. L.J. 1205, 1258-59 (1992) (ideology of motherhood is abstracted from gestation, birth, and breast
feeding as selfless child giving, in its most extreme form reducing mothers and
women to vessels); Michelle Oberman, Turning Girls Into Women: Re-Evaluating
Modern Statutory Rape Law,
85 J. Crim. L. & Criminology 15, 64-67 (1994) (noting the tenaciousness of compulsory maternal altruism that also tends to
view women as wholly able to care for their children or wholly unable); see
Chodorow & Contratto, supra note 263, at 63-67 (discussing constricting psychological constructs of
n420. Appell, supra note 5, at 584-87; Ashe, supra note 416, at 2547-48; Kline,
supra note 347, at 120-21.
n421. Cf. Theodore J. Stein
& Tina L. Rzepnicki, Decision Making in Child Welfare: Current Issues and Future
Directions, in Child Welfare, Current Dilemmas - Future Directions 259, 275
(Brenda G. McGowan
& William Meezan eds., 1983) ("There is a strong probability that if ideal standards were applied to the
community at large, a majority of families would be found wanting ... .").
Chodorow & Contratto, supra note 262, at 203;
Davis, supra note 157, at 365-66.
n423. This is true of all of the models and most of the perspectives above. Some
suggest wealth distribution or value modification, but mostly in the context of
private, nuclear family, or parent-child dyadic relationships.
n424. West, supra note 14, at 1912; see also Callahan
& Roberts, supra note 14 (describing how liberalism fails to recognize or
support the moral equality of all people); Lani Guinier, No Two Seats: The
Elusive Quest for Political Equality,
77 Va. L. Rev. 1413, 1477-80 (1991) (arguing that majority rule as currently constructed promotes a winner take
all mentality that does not benefit from shared power and is not responsive to
United States v. Morrison, 529 U.S. 186 (2000);
Bowers v. Hardwick, 418 U.S. 186 (1986);
Washington v. Davis, 426 U.S. 229 (1976). For an analysis of the movement to forge a constitutional right to the
material conditions for equal citizenship, see William E. Forbarth, The
Constitution and The Obligations of Government to Secure The Material
Preconditions For A Good Society: Constitutional Welfare Rights: A History,
Critique and Reconstruction,
69 Fordham L. Rev. 1821 (2001); see also Mary Becker, Towards A Progressive Politics and a Progressive
69 Fordham L. Rev. 2007, 2050-51 (2001).
n426. AFDC and other federal and state cash programs for the undeserving poor have
been effectively structured to maintain income disparities and dependency. See
Handler, supra note 359 (cataloging the close relationship between limiting
welfare benefits and the effect of labor markets); Creola Johnson, Welfare
Reform and Asset Accumulation: First We Need a Bed and a Car,
2000 Wis. L. Rev. 1221, 1227 (noting that welfare benefits are at bare subsistence levels);
Roberts, supra note 362, at 946-47 (describing how the market benefits from depressed wages
and joblessness, and how the United States has failed to take steps to
ameliorate these and other structural impediments to wealth gain, including
lack of child care). Federal unemployment benefits and mandates have remained
extremely low and under localized control insuring that such benefits do not
drive wages up or place workers in better bargaining positions vis-a-vis
employers. See Handler, supra note 359, at 915-22.
n427. See Mary Becker, Patriarchy And Inequality: Towards A Substantive Feminism,
1999 U. Chi. Legal Forum 21, 75-76 (noting that the major political parties do
not speak to interests of poor Americans who are in the minority). See
generally Becker, supra note 425, at 2018 (showing lack of representation of
women and minorities in Congress); Guinier, supra note 424 (examining the
failure of one person per vote to achieve meaningful representation for racial
minorities, even when their members are elected).
n428. On the contrary, the continued relative ideological and demographic
homogeneity of the state (in the form of judges, legislators, and
administrators) militates against pluralistic decisionmaking. See Sylvia R.
Lazos Vargas, Democracy and Inclusion: Reconceptualizing the Role of the Judge
in a Pluralistic Polity,
58 Md. L. Rev. 150, 160-205 (1999) (describing unexamined dominant epistemologies and differences between
majority and minority world-views).
"Majority" is not used in its literal numeric sense to suggest that legislation or other
decisions made by elected officials necessarily embody the will of the majority
of citizens. See Robert W. Bennett, Conversational and The Sense of Difficulty,
95 Nw. U. L. Rev. 845, 848 (2001) (noting that much of the United States government is not majoritarian); Lazos
Vargas, supra note 428, at 152 n.1 (defining majority in social, rather than
numeric, terms). Instead,
"majority" is used to signify official decisionmaking based on popular or dominant norms.
n430. Raymond O'Brien, An Analysis of Realistic Due Process Rights of Children
26 Conn. L. Rev. 1209, 1211-13, 1234-35, 1251-52 (1994). Professor O'Brien's explicit equation of termination of parental rights and
"The Final Solution" is chillingly evocative of the totalitarian implications of greater state
involvement in dissolution of families.
Id. at 1246.
n431. Bartholet, supra, note 188, at 96-102; see also Barbara Bennett Woodhouse,
"It All Depends on What You Mean by Home": Toward a Communitarian Theory of the
1996 Utah L. Rev. 569, 584 (putting her support of de facto families
"in context" at the dependency, juvenile and family courts).
n432. See supra Part I; see also Callahan
& Roberts, supra note 14, at 1209 (reciting permissible reasons for state
intervention with individual liberties); Galston, supra note 115, at 240-41,
246 (arguing that value pluralism is a central component of liberalism and
limits government's ability to establish a hierarchy of good, although permits
protective intervention); Stephen A. Gardbaum, Why the Liberal State Can
Promote Moral Ideas After All,
104 Harv. L. Rev. 1350, 1352 (1991) (arguing that the liberal state promotes values of
"autonomy, equality, human dignity, and tolerance").
n433. See supra text accompanying notes 116-22.
n434. See supra text accompanying notes 111-15.
"State norms" refer to the fact that courts resolve disputes about custody or parenthood and
that courts or legislators define grounds for family reformation. These
decision-makers are most likely to base their rules on cultural or
self-referential values, thereby interfering with private value production. See
& Benjet, supra note 386, at 250-52, 263-65 (describing cultural, including race
and class, bias in judicial, mental health, and child welfare decisions). Even
the psychological parent theory is both culturally biased and has expanded to
areas beyond its scientific validity.
Davis, supra note 157, at 353-62.
n436. Becker, supra note 425, at 2009; see also Callahan
& Roberts, supra note 14, at 1200-07 (noting contemporary liberal theory
inadequately serves liberal values of individual liberty and moral equality);
West, supra note 14, at 1903-05 (rehearsing arguments that liberalism is
hostile to or even antithetical to universal rights to material well-being).
But see, e.g., C. Edwin Baker, Property And Its Relation To Constitutionally
134 U. Pa. L. Rev. 741 (1986); William E. Forbath, Caste, Class, and Equal Citizenship,
98 Mich. L. Rev. 1 (1999); Michelman, supra note 15; West, supra note 14 (each arguing that economic
justice or guarantees of material welfare are consistent with constitutional
theory). Cf. Dorothy Roberts, Welfare and the Problem of Black Citizenship,
105 Yale L.J. 1563, 1564 (1996) (book review) (noting racism against African Americans, not liberal
philosophy, caused inadequacy of the needs-based welfare system).
n437. Linda Gordon, The Great Arizona Orphan Abduction 11-13 (1999). Wealthy,
protestant child savers of this era sent children of these and other immigrant
"races" to Midwestern and Western states as orphans to be placed with better families.
See id. at 3-19. Cf. Chambers
& Polikoff, supra note 166, at 523 (remarking how during the twentieth century
lesbian and gay families went from invisibility and incomprehensibility to
prominence and legal recognition).
n438. See J.M. Balkin, The Constitution of Status,
106 Yale L.J. 2313, 2324-26 (1997) (discussing the relationship between social and legal status); Finkelman,
supra note 105 (illustrating how protection of slavery informed constitutional
structure and provisions); Guinier, supra note 424, at 1478-79 (illustrating
persistent and systemic racism and exclusion of minorities in U.S. electoral
government); Charles R. Lawrence III, The ID, the Ego, and Equal Protection:
Reckoning with Unconscious Racism,
39 Stan. L. Rev. 317 (1987) (describing and explaining unconscious racism against African Americans).
n439. See Dorothy Roberts, The Meaning of Blacks' Fidelity to the Constitution,
65 Fordham L. Rev. 1761, 1763-64 (arguing that African American support of the Constitution and rights theory
Bowers v. Hardwick, 418 U.S. 186, 194 (1986).
n441. See Balkin, supra note 438, at 2367-70 (describing how it is that democracies
may preserve unjust distinctions among groups). Of course, since less than half
of the electorate votes in this country, Becker, supra note 427, at 74, a
powerful minority would define families.
"individual autonomy" is referred to in the specific context of United States constitutional law and
theory without examining whether autonomy is
"natural," possible or intelligible. See Ashe, supra note 416, at 2540-41 (rehearsing
postmodern critiques of autonomy); West, supra note 258, at 5-12, 61-70
(critiquing masculine ideas of autonomy as separation). There is a certain
irony in questioning the coherence of the concept of autonomy from the
perspective of those who experience severe governmental or financial
limitations to their own actual freedom. See Callahan
& Roberts, supra note 14, at 1218 (liberal theory protects choices of the
economically privileged and offers no support to the economically
disadvantaged); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals
from Deconstructed Rights,
22 Harv. C.R.-C.L. L. Rev. 401 (1987) (explaining that from the perspective of persons who have had no rights and
for whom rights have great meaning, rejecting rights theory is cavalier).
n443. See Naomi R. Cahn, Family Issue(s),
61 U. Chi. L. Rev. 325, 329-30 (1994) (recognizing both standards and noting that the consent or unfitness
requirement reflects a social choice about the primacy of birth parent versus
adoptive parent rights).
n444. See supra text accompanying notes 374-87; see also
Santosky v. Kramer, 455 U.S. 745, 763 (1982) (noting the subjectivity of unfitness standards that make them
"vulnerable to judgments based on cultural or class bias"); Guggenheim, supra note 157, at 1735 ("Experts estimate that 40% to 70% of children currently in foster care have not
been abused and need not be separated from their families if society
sufficiently assisted poor families in raising their children at home.").
n445. See Pelton, supra note 391, at 550 (suggesting limiting child abuse and
neglect definitions to
"severe harm or endangerment resulting from clearly deliberate acts or gross
abdication ... of parental responsibility").
Prepared: March 22, 2003 - 5:02:29 PM
Edited and Updated, March 23, 2003
Philosophy 111A Page