The Varieties of Motherhood

The post about the women in West Virginia makes me think about the varieties of motherhood.    The law draws all sorts of fine distinctions.    Some of the time they match up with reality and some of the time they don’t.  And in our more common conversations we also draw fine distinctions.

So the women in the West Virginia case are, legally speaking, foster mothers.   They are prevented by operation of law from becoming adoptive mothers, because only married couples can adopt and they cannot marry.    Some people also probably would call them co-mothers (or co-parents) and, of course, lesbian parents.    Some of these categories are not legal ones, they’re just terms we use to identify ourselves and the groups we relate to.   But other categories have legal meaning.

Crucially, adoptive parents are legal parents.  Foster parents are not full legal parents.   

Legal parents are people who are recognized in law as being fully parents.   To be legally recognized as a parent means you get the full range of rights and obligations with regard to your child.  Additionally, you get constitutionally recognized rights–the state cannot interfere with your decisions about the child without a very very good reason indeed.   That means you can prevent other people from seeing your child (which is why so many lesbian custody fights become fights over whether both women are legal parents.  If one is a legal parent and one is not, then the legal parent pretty much always wins.)

I’ve written about this in bits and pieces before–here for example.   It’s an important point to remember.

What’s critical to understand is that there is no necessary relationship between being a legal parent and being what I want to call a real parent.   ( I’m thinking here of real in the same way the Velveteen Rabbit becomes real.  And again, you can find a bit more about what I mean in that post I linked to in the previous paragraph.)  But it’s a dangerous term to use as it doubtless means different things to different people.  To some, I am sure, “real parents” are the ones who are biologically connected.   (“Biological father” and “biological mother”–terms I try very hard not to use at all.)

A one-night-stand guy–the focus of much thought in the earlier life of this blog–is typically a real parent even though he may have but a passing acquaintance with the mother and none at all with the child.    And the women in the West Virginia case are the flip-side example:  they are real parents, the only ones the child has ever known–but they are not (and cannot become, thanks to West Virginia’s law) legal parents.

I think it is always easier when life and the law are consistent–when legal parents and real parents are the same people.   Other doctrines I’ve discussed from time to time (I’m thinking particularly of de facto parents and functional parents) are actually designed to conform law to reality.  So a grandmother who raises a child might qualify as a de facto parent.  What that mean is that, in a legal setting (like say law school) you could legitimately discuss whether a grand-mother could be a parent without having some bizarre ART scenario in mind.

All of this makes me go in circles some times.   But it also reminds me that I need to choose my words carefully if I want to be clear about what I mean.


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