Is There A Hierarchy of Parenthood?

My main purpose in starting and maintaining this blog is to consider the question of who the law should recognize as a parent.   I take individual cases and news events as they come and try to use them to illustrate various points–how the law is, how it might be, where it is good, where it is bad, and so on.   But from time to time I think it is useful to step back and think more broadly.   I’ll take this as one of those times. 

There are a number of different tests you might use to determine who the parents of a child are.  Each has strengths and weaknesses, which are discussed elsewhere on the blog.   Part of the challenge is that the question arises in so many different situations.   ART in particular gives us a whole range of new complications, but there are plenty even without that.  

Possible tests include :

–Genetics–that is, the people whose egg/sperm are used;

–Intent–the people who intend to be the parents of the child, at some identified critical point (presumably before the child is concieved, certianly before the child is born);

–Function–the people who act as the parent of the child for a some specfied period of time (could be fixed, like two years, or could be defined as something like “a substantial period given the age of the child.) 

–Giving birth–I think this one is obvious.  Often matches up with genetics, but need not, these days.   I tend to see this one as a special case of function, which is why I list it here.

–Relationship to someone already a parent–the classic here is that if a married woman gives birth her spouse is presumed to be a parent of the child.   Can obviously be broadened to include other types of relationship (like domestic partnership). 

–Adoption–people who formally adopt a child are parents–that’s the whole point. 

Now if you go back over the blog, I think you’ll find instances in which every one of these tests has been deployed.   And of course, you can mix and match them.   Some people have multiple factors going for them–they intend to have children, they are genetically related to children they give birth to and they act as the children’s parents.   Those tend to be easy cases.  

The hard cases come when you have competing contestants, or where one person wants to cut another out, as in the new Montana case.   One person claims one basis for parenthood, and someone else claims a different one.   Or there are cases when no one wants to claim parenthood and we need to find someone.     (Not long ago I wrote about a case where a man who had functioned as a father for 13 years sought to sever his relationship with the child by asserting that it turned out he lacked the genetic connection something he apparently knew all along, but never mind that.) How to decide these?  

Cases like this seem to me to suggest we have some sort of hierarchy.   So, for example, to reach the result the court did in the case I just mentioned (he’s still the father) it had to say that function (and the relationships constructed based on that function) trump biology (by which test he was not the father.)   Again, you can look back and find many instances in which one test seems to overcome another. 

And I guess this is my present question.   Is there some hierarchy and if so, what is it?   Actually, I suppose I really mean should there be a hierarchy and if so, what should it be?   After all, I’m more concerned with what the law ought to be than with what it is in any particular place (it varies so very widely.) 

You could start, I think, by deciding if there are some tests you want to throw out entirely.   So, for example, you could outright reject an intention test and say that will never work.   But if you come down to an assortment of tests you will accept, then it seems to me you have to decide which is best and which second best and so on.

It might be possible to duck this question by saying that it is all situational.  In other words, you’ll decide each case as it comes along and one time, as in the case I mentioned above, function might trump, but in the next case, genetics might do so instead.   I don’t find that very satisfying, since it seems to be more like ad hoc decision making and less like law.  

I think that’s enough to start with.   Watch this space, as there is surely more to come.

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20 responses to “Is There A Hierarchy of Parenthood?

  1. My hierarchy would include:

    Genetic parents
    Adoptive parents

    That’s it!!!!

  2. You’re still missing the point Julie.

    Of course it’s difficult to determine who “should” play the parenting role after a human being has been brought into the world in such a contrived fashion.

    The solution is to not do that at all! Unless you know that a child can be raised by both its biological parents in a stable relationship together, you should not be creating that human being in the first place.

  3. I do not think I am missing the point. I think we disagree. I do not accept your assertion about the primacy of biology in determining parenthood.

    There’s a lot about this in the blog and I’m sure I’ll return to it again. But in a nutshell, I don’t see any particular reason why biology ought to determine parenthood. There are people raising kids they are not genetically related to who are terrific parents. And there are people raising (or not raising) kids they are genetically related to who are dreadful parents. There are single parents who may or may not be genetically related to the kids they are raising who are doing a great job, and there are those that are not doing a good job at all.

    In my view (and of course I realize you might disagree) there is a great deal more to being a parent and raising a child than providing 1/2 of the genetic material that is needed. If someone steps up and does the work, I’d rather pick them as a parent than award that status to someone who did nothing more than engage in casual sex.

    Beyond that, we live in a world where people frequently do create children in other than your ideal circumstances. How do we think about who the parents of those kids are? Take the case I blogged about a week or so back: https://julieshapiro.wordpress.com/2009/09/30/wait-maybe-im-not-youre-father-after-all/ After thirteen years of accepting the role of father, knowing that the genetic link wasn’t there, does he get to walk away? Is that a good result?

    Even though I think we disagree, I think there is useful conversation to be had. But it depends on agreeing to disagree and going from there.

  4. Julie, I think that I have to agree with Tom.

    Sociologists tell us that stepparents only rarely keep in contact with their step children after a divorce. In the majority of cases, genetic parents keep in contact with their children. This reveals a lot about how people regard parenthood.

    I can affirm this from personal experience. I had a step-mom. After she separated from my father, I happened by chance (8 years old) to meet her again. Her children (my step sisters) jumped with joy, but she just sat there starring at me coldly. This story doesn’t prove anything, but I warn you about being too romantic about social parenthood. In most cases it doesn’t outlast the social circumstances which created it.

  5. So what’s the difference between a non-biological parent and a nanny?

    • I’d say there are many differences. The first that come to mind are that a parent makes a permanant commitment to raise a child, recieves no compensation for doing so, is not on duty specific hours, sets the rules (as opposed to simply enforcing them), and is ultimately responsible. Few of us meet that ideal all of the time.

      I can imagine extreme instances where a parent might abandon a child to a nanny. In my own experience, however, it’s always been immediately clear to me who is a parent and who’s a hired caretaker.

      I will agree the biology gives you a much brighter and easier to articulate dividing line between those who are parents and those who are not. It’s just that I don’t think that nice bright line gets drawn in the right places.

  6. Tom seems to think that the only instance of Mom and Dad not bringing up baby would be “a contrived fashion” but clearly that is not the case. Sometimes they can’t or won’t.

    I’m with Sandy’s response. Genetic parents are at the top of the hierarchy. It is only when they can’t or won’t parent that other forms of parenthood need to step up.

    In this category I would include donor inseminated babies with or without relationship to the sperm donor. I’m of two minds here whether father-in or father-out is better. I suspect it depends, and that mothers are simply more wired to bring up baby. On the social side, a child can do fine with one parent and that could be dad too. Or two dads or two moms.

    Anon donation I have some problems with. I’d put it lower than known known donor.

    This doesn’t take into account intent and function at all because those factors can be present anywhere. In the end, they are important, possibly a tie-breaker in some instances.

    Love the questions you pose!

  7. I have been asking around and found two nannies (known to my Philipina friend) who have worked with the same families for ten years – longer than some marriages last. The wealthy can pay alot to those they trust, so one way the employment set-up lasts. The parents, jetsetters who go abroad as they like for fun, choose who they will trust to act in loco parentis.

  8. Angela,

    Your question:So what’s the difference between a non-biological parent and a nanny?goes to the heart of the matter.

    50-100 years ago the children of the British upper classes were brought up by their nannies, not their parents. They addressed their father “sir”. From six years of age they were send to “public schools”, and mainly communicated with their parents in writing (read for instance Winston Churchills memoirs). Still there is no question, that they didn’t regard their nanny as their parent, and likewise she didn’t regard them as her children. By the way, they also didn’t regard the public school as their parents, though it did most of the care giving.

    The concept of “parents” is an abstract one, transcending shifting social circumstances.

    • I’m glad you introduced history. It’s certainly true that throughout history there have been different ideas about who is a parent and why. But I think this obeservation leads us to different conclusions.

      I don’t think the concept of ‘parent (at least in law) is an abstract one, trascending shifting social circumstances. Instead, I think the role of parent is socially constructed. The law in part reflects that construction and also is a part of that construction.

      This might be another one of those points about which we just disagree, and I think it is actually quite helpful to articulate them.

      As I see it, most roles in the family are culturally constructed. So, for example, what a husband/wife was three hundred years ago in colonial Massachusetts is quite different from what a husband/wife is now. Laws change over time and (hopefully?) reflect changes in culture even as they change culture.

      That each child is composed of DNA drawn from two individuals, one male and one female, has always been true, of course. I don’t mean to challenge that. But I think the social signifigance of this has varied. Which takes us back to our original disagreement–I assume you would say that laws that do not affirm the signifigance of the genetic link are “wrong.” I would not.

  9. That’s very interesting Nelly. Taking the notion of parenting styles into another box – there used to have a saying (am old now, 57, but still kicking!) and maybe we still do, which goes “children should be seen and not heard” which may account for why it can be hard for some of the parents involved in ART to listen up. Just a thought.

  10. I thought I’d look up the word “parent” in my dictionary, which was compiled by fourteen professors, no less. It’s published by Random House, here are the word’s meanings:

    1/father or mother
    2/an ancestor, precursor, or progenitor
    3/a source, origin or cause
    4/a protector or guardian
    5/biology: any organism that produces or generates another

    then the dictionary says

    the word originates from late Middle English, taken from Latin, it was once the word “parens”

    Me saying this now – it just occured to me he word “pere” is French for father.

  11. Julie, I don’t think you are right that roles in families are mere social constructs. I know that in MA ‘same sex marriage’ is allowed. But that does not mean that the overwhelming majority of ordinary people in MA or elsewhere regard same sex marriages from MA as real marriages just as I’m sure most same sex couples in MA would not regard a man’s marriage to a goat or horse as legitimate despite it being so in Hindu law.

    In the same way I think the majority of ordinary people know what a ‘real parent’ is.

    Calling a role playing person a ‘parent’ just like calling two lesbians from MA ‘married’ does not make the person’s role more valid, it might just devalue the term.

    At least in gay marriage no one is pretending that marriage partners are in any way related except ever as a figment of law. So gay marriage might be a smidgen more acceptable than calling random role playing people ‘parents’.

    I included in my hierarchy of parents only genetic and adoptive parents. I do feel that an adoptive parent is real because an adoptive parent is a parent by a court order process and is valid because it is not based on pretense or denying that the genetic parents exist, it merely gives one or two other people the right by virtue of the court order to be the acting parents of the child. It is very different to me from a process by which through playing the role one becomes a parent, it is in fact exactly reverse. To me that process seems far more valid because it takes place after acknowledging the fact that the child has genetic parents that either can’t or won’t perform their role to the child.

    As I see it, most roles in the family are culturally constructed. So, for example, what a
    husband/wife was three hundred years ago in colonial Massachusetts is quite different from what a husband/wife is now. Laws change over time and (hopefully?) reflect changes in culture even as they change culture.

    • I think you might be right that the majority of people know what a parent is. (It’s actually somewhat striking that we agree on this because, of course, we disagree about what a parent is, so each of us must have a different idea about what “most people” think a parent.)

      Anyway, I don’t think most people know much of anything about the genetic relationships in the families around them. So, for example, my kids go on playdates to other houses. I know who the parents in those families are. But it’s not because I’ve checked out their genetic codes. For all I know, some of those kids do not match the genes of both parents. But I see the actual living relationship before my eyes and I conclude it’s a parent/child relationship. I think that is the way it is for most people.

      I also see households where it appears to me the kids are adopted, but I don’t know if folks have actually done the legal work or not. Again, what makes me think they are parents is the substance of the relationship, not the display of an adoption certificate.

      But really, our views on what most people think may not be the main point here. Even if we just agree that most people know, without being specific about what it is they know, this doesn’t mean that being a parent is not socially constructed. I think the relevant question might be whether the category “parent” has been uniformly defined over time and culture. And I think the answer is that it has not.

      For example, married men who had children outside of their marriages were not parents to those children for long stretches of history. When I say that, I don’t mean that the genes didn’t match up, but rather that they were not considered to be fathers. The law often followed this practice and did not recognize them as legal fathers. I think now we’d say they are fathers, and the law would probably say so, too. It’s this variability of the definition according to time and place that makes me say the category is socially constructed.

  12. Julie, I find your definition of parent extremely scary and difficult to ascertain in circumstances.
    You say that anyone who is an unpaid caregiver to children and can direct their lives independently is a parent. So if let us say a single mom suffered a car accident and her little girl was at the time being looked after at no charge by a family friend who carried on doing so for several months without pay and placed the child in nursery and took her to medical appointments without direction. Would that family friend now be a parent? Would there be any difference if the friend had initially been paid for babysitting when the accident occurred? Would there be any difference if the mother contributed $50 per week to the child being looked after? Would the birth mother be able to sue the friend for child support?

    Julie, your definition of parent is so bizarre I can’t get my head around the enormous complications it throws up. To me genetic and adoptive seem certain, safe, secure, reliable, permanent and sensible. Your definition evokes insecure, uncertain, temporary, unknowable, scary, changeable, whimsical, no boundaries, changeable, bizarre!

    • I think you’re not reading my definition very carefully. It’s fleshed out in a variety of places on the blog. In the end, I do agree there will will be some close cases. But the one you pose here isn’t one.

      Look back at what I wrote–the friend won’t satisfy it. There’s no permanant commitment to a parental role there. She’s doing fill-in child care and you’ve set it up so that everyone knows it.

      Even with the families whose kids spend the most time in my house, it’s perfectly obvious I’m not a parent to them. I don’t think I am, they don’t think I am, no one else thinks I am.

      Go back and look at the man who is the subject of this post: https://julieshapiro.wordpress.com/2009/10/01/but-if-you-are-not-my-father-who-is/ I’d say he fits under my test. He has acted like a parent for many years, taking on the obligations, exercising the rights. His daughter thought he was a parent. I think the law ought to (as it did) say he is a parent. Genetics lets him walk away. I think that’s wrong.

  13. you left out one criteria- the legal voluntary assumption or renunciation of parental status.

    Anyway, I think its clear that the genetic + functional parent trumps the genetic only or the functional only parent, unless the functional parent obtained legal status.

    In the case of sperm donation, there’s not much of a question either since a sperm donor has voluntary renounced his parental rights via legally recognized contract. The functional parent’s claim would definitely trump his.

    The cuckolded husband voluntarily assumed parental rights by not contesting the legal assumption of paternity even though he knew he was not the biological father. I think that’s an important point.

    If he had just discovered that he was not genetically related and had been deceived, that would be a much stickier issue.

    • I am not sure what to do with legal voluntary assumption and didn’t list it separately. I did write a little bit about VAPs in a later post. But beyond that, what does this mean? Adoption is legal voluntary assumption of parenthood, so that’s covered.

      For whatever it is worth, most places that permit use of donor sperm do not view the donor as a legal parent who is renouncing rights. Instead he is contructed as a non-parent, which is what makes it possible for him to enter into the contract, etc. (You cannot make contracts for the sale of children, nor of the sale of parental rights, which would amount to the same thing.)

      I agree that the knowledge of a person raising a child not genetically related to them is important. It’s interesting to think about why it is important. From the perspective of the child it makes no difference if the parent knows about the lack of genetic relationship or not, I think.

  14. “The best interest of the child” is a noble criteria but it has its limits.

    For example, lets say I signed on as a temporary foster parent. Can the state mandate me to become the legal parent of this child until majority, in the best interest of the child? I doubt it.

    In the same way, the best interests of the child may not trump the rights of the unrelated adult who was duped into caring for her for years.

  15. Though you and I may hope that he would have developed enough love to overcome that, it’s not for a court to legislate.

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