This is a loop back to the earlier topic I started a while ago. The importance of the topic is newly clear to me, so I want to pick it up again.
Suppose my goal is that the law will recognize the reality of the lives of children and the adults who care for them. In other words, the people who really are parents will be recognized legally as parents. Stated like that, what would the objection be? (Not quite a rhetorical question–there is a real problem with that formulation which I’ll get to in a moment.)
This is essentially what the de facto parent test aspires to and, in a different way, perhaps the holding out test, as well. They provide legal recognition for people who have played a certain role in a child’s life, on the theory that, like the velveteen rabbit, they are real parents.
I’ve been writing about this for a while. And what you can see from the most recent thread about de facto v. holding out is that the question “what’s a parent like?” may have different answers for men and for women. Which might mean there are really two separate questions–what’s a mother like and what’s a father like?
This, of course, raises another set of interesting questions. If a woman does all the things that a man must do to be a father, can she be a father, too? And is there any reason why a man who does all the caretaking things needed to be a mother can’t be a mother? If you say a woman can be a father and a man can be a mother, then I think we’d best go back to the “parent” formulation above and dispense with the gendered terms. And if you say a woman cannot be a father, nor a man a mother, then you must explain what is so essentially female about being a mother and what so essentially male about being a father. Clearly there’s plenty there for another post another time? But I am digressing…..
The real problem with saying that the law should recognize the people who really are parents is figuring out what it really does mean to be a parent. And what the mother/father problem above highlights is that the answer may all too often be something like “that depends.” So we’d say (looking at the holding out test for a moment) if you do these things, you really are a parent–if you are male.
But the male/female problem is only the tip of the iceberg. (Okay, maybe a largish tip, but still, only a part.) Suppose you fulfill all of the expectations of what it means to be a parent set by your cultural community. You should be entitled to legal recognition as a parent. After all, you really are a parent. But If I am the judge and I am from a different cultural community I may look at what you’ve done and say “you’re not really a parent” because you’re not measuring up on my scale. That’s the problem I alluded to a few weeks back in thinking about the Texas polygamy case. And it seems to me to be a fairly serious one.