The Interests of Children

I was reading through the comments to earlier posts and, on more than one occasion, people either invoked or asked about the interests of children.   I’m sure I’ve discussed this before (though I cannot locate the post just now…so much for tags?) but it’s good to revisit it from time to time. 

I try to keep this blog mostly focused on how we determine who are the legal parents of a child.   It’s obvious that the well-being of the child is implicated in this decision.   But where exactly do we/should we take it into account?

Perhaps the most surprising thing is that generally speaking, in any given case with any given child, we do not ask what is in the child’s best interest when we are trying to figure out who the child’s  parents are.    To see why, you might think about what could happen if we did consider the child’s best interest at this point.  

Imagine that I have a child that I gave birth to and have raised for two years.   My neighbors have a much nicer house than mine, are better educated, hold better jobs with more disposable income, and have already raised one incredibly successful child and are well known to my child.   Suppose they go to court and assert that it would be in the best interests of my child to have them as parents instead of me.    If the question is “what is best for this child” it’s not impossible that some judge could find that the child would, in the long run, be better off in that other household.   Yet surely this is an unacceptable result. 

 We protect ourselves from that sort of judicial/state intrusion into the family  (and that sort of comparison shopping) by determining parenthood in ways that are independent of the best interests of the child in the particular case.   So the hypothetical I just described doesn’t happen because I’m seen as the parent of my child not because I’m the best parent, but because I gave birth to the child and am raising the child.  (In the event of a dispute between parents, we typically do use “the best interests of the child” as the test to decide the custody arrangement.  But that’s after we figure out who the parents are.)

Now this isn’t to say that the interests of children play no role in the law of parentage.    Rather than being a factor in individual cases, ideas about the interests of a child influence the more general question of what test we use to figure out legal parentage. 

For example, I know a number of folks who frequently comment here are committed to using a genetic test to determine parentage–those who share DNA with a child are the child’s parents.   One could advocate for that test by saying that in general, those with the genetic linkage will be the best parents for the child, or that it is best for children to be raised by their genetic parents.  

I think some argument about the well-being of children is offered by advocates for most of the competing tests for parenthood.   The de facto parent test serves the interests of children by allowing the reality that the child knows to continue,  which is good for the child’s sense of security.   And so on. 

At that general level, one is not concerned with any specific child, however, but rather with children generally.   It’s also possible to entertain other factors at this point, too, like the interests of parents.   

Of course, the core difficulty is that we don’t agree on what is best for children, either specifically or generally.   It’s also more than a bit difficult to prove anything in this regard.   So it’s not as though shifting to the general focus makes anything a whole lot easier.

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8 responses to “The Interests of Children

  1. Having just returned from a conference, I offer some observations from the psychologists in attendance. Parentage, it seems, is more a factor of the relationship between “parent” and child, than mere genetics.

    Defining parentage is certainly subject to the particular perspective of the observer. However, it is ultimately the child who will decide who his or her parent is.

    Interestingly, as it relates to children born through egg or sperm donors, disclosure of the genetic disconnect between child and parent reduces curiosity about the donor.

    Finally, as the older children of egg donors are now entering their teens, the quality of the psycho-social research into this area shall improve exponentially.

  2. David,
    I think the psycho-social research on future offspring of egg/sperm ‘donors’ raised with ‘openness’ but without access to contact will be very similar to adoptees raised with ‘openness’ but without access to contact to bio-family.

    Identity/biological-genetic/mothers/fathers/grandparents/siblings/ancestry do matter to many people no matter how they were conceived. Openness and honesty regarding ones conception method should help but it also might stigmatize/shame/frighten/condition the ‘donor’ conceived from acknowledging or pursuing future contact with their ‘donor’ bio family. The conditioning/story told to them – that their bio-father/mother is nothing more than a mere sperm/egg ‘donor’/nice man/woman etc. – needs to be taken into consideration.

  3. Bonding is the most important aspect of the parents-child relationship. You can’t break that bond, without doing damage to the child. Therefore the so called “best interest of the child” must primarily be concerned with creating a lasting bond between child and parents. To be human is to try to answer Plotin’s 2000 year old question: “And we, who are we?” this identity creating process starts early in childhood and involves both social and biological elements, temporary and lasting ones. Maybe this is why the right to an identity has become a cornerstone in modern human rights conventions.

    • Perhaps this point–about bonding–is one on which there is general agreement? I mean that in general, it is best for the child to maintain bonded relationships?

      If so, it seems to me that strongly suggests that in any given case, you might want to be backward looking–see who has had those relationships with the child. At the same time, you need to adopt a relatively clear forward-looking test so that people know (in advance) what relationships will be protected. (I think some people might be unwilling to invest in creating these relationships if they do not have some confidence they will be enduring.)

  4. I love this blog because its so balanced. I wanted to say something about determining who is the parents and hierarchy which you spoke of along time ago. I wish I knew how to go about writing legislation. I’m so concerned with this issue now.
    A biological relationship cannot be terminated or altered once it exists. Parent is just a gender neutral term for mother (a female who has reproduced) or father (a male that has reproduced), . Other less contentious gender neutral terms for mother or father are immediate forebearer, progenator and procreator. There is a universal expectation that Parents, or Immediate Forbearers, or progenators or procreators, be responsible for raising their own sons and daughters (or progeny or offspring) to adulthood. Society expects Parents to act like parents once they are parents – but not before. Once a person is a parent they are expected to follow the model of biological parenthood.

    There is no universal expectation for a person to act like someone who has procreated if in fact he or she has not procreated because they have no offspring of their own to look after.

    If a parent fails behave as parents are expected to behave the law can step in and terminate the parent’s right to custody of their child. The law can assign the responsibility for raising their child to another adult who wishes to adopt the child. But the law has not altered the biological relationship of parent to child – the law has taken away the legal right to custody and assigned the responsibility for raising the child to somebody else. The fact remains that the person still reproduced and is still a parent, progenator, procreator, mother or father who failed to meet the universal expectation of taking responsibility for his or her offspring.

    The law makes a huge mistake in thinking it can grant people who adopt a child the title of either mother or father or parent and saying that an adopted child is as-if born to them. The re-issuing of birth certificates was an attempt to erase the child’s existence prior to the adoption, to make it look like the people who adopted were in fact the childs mother and father when they were not. Acting like a mother or father does not make you a mother or father. The fact that the child and community at large may believe you are a mother or father does not make you a mother or father if in fact you are not.

    Even if a person who is not a parent does a better job of raising a child than the childs own parent it does not make them a parent. So the question of who a child’s parents are is one of pure biological relationship and nothing else.

    The heierarchy should be

    Is the child’s mother able to be identified by DNA test
    Is the child’s father able to be identified by DNA test

    Does the child’s mother wish to have custody and raise the child to adulthood? (any kind of conception/birth even by surogate)
    Does the child’s father wish to have custody and raise the child to adulthood? (any kind of conception/birth even by surogate)
    Does the husband of the mother wish to raise the child of an anonymous father?(wife conceived with sperm from anonymous man)
    Does a birth giving surogate wish to raise the child of the anonymous mother?(woman implanted with fertilized egg of anonymous woman)
    Does the husband of a birth giving surogate wish to raise the child of the anonymous father?(woman implanted with egg of anonymous woman fertilized by an anonymous man)

    If the terms mother father and parent were absolutely stricken from adoption language there would be no expectation that parties to an adoption had to follow the biological parent child relationship model. This would be fair to folks in same sex relationships where a woman wants to take responsibility for raising a child that her same sex partner or (wife california) conceived using sperm from an anonymous father. Her partner is clearly the mother, the anonymous man is clearly the father and she wishes to adopt the child and have not “parental rights” but adoptive rights. The law should not refer to people that adopt as mother and father but simply by their first and last name as a “party to the adoption of a minor child”. Not using the term mother father or parent also makes sense for family memembers adopting children that are grand children or neices, nephews, cousins etc. Why force them to follow the biological model of mother-father-parent. Let people decide privately how they wish to be addressed, but legally the title of mother father and parent should be reserved for those who are mothers fathers and parents be they good, bad, absent, abusive, dead beat, etc.

    • Marilyn-
      Thank you so much for your comment. As a donor conceived person who has serious concerns about the dehumanizing words that are being used to describe our biological mother/father/parents – (sperm donor/egg donor.surrogate etc.) I am very much in agreement that these terms/ words need to be challenged and these transactions/interventions need to be handled in a similar way as adoption. I find these terms (sperm/egg donor-provider-vendor-surrogate etc.) to be discriminating, insulting and dehumanizing.

    • Wow–there’s a lot here. Some I agree with, some I do not, but it seems near impossible to even begin to respond to it all. I think I might pick one central point, or perhaps a thread, to respond to.

      It’s true that the genetic linkages are inalterable. However, the meaning given to the genetic linkages are not inalterable. They vary over time, across culture and within cultures. Thus, for some biology is the essence of parenthood and the man and woman who have provided the biological material used to create the child are and always will be the parents–the mother and father. But that’s not a universal assumption. There have always been people who, though they may be genetically related to a child, have no interest in nor inclination to care for that child. Similarly, there have always been people who, though they are genetically unrelated to a child, have taken a child into their homes and raised the child to adulthood.

      The law recognizes parents because we need to identify those who have the rights and the responsiblities with regard to a particular child. Who can decide whether the child goes to one school or another? Participates in particular activites? Is raised with particular religious training? Who is obliged to feed and clothe the child? To ensure that the child attends school? To ensure that medical needs are met? The answer to each of these questions is “the legal parent(s).” That’s as true for adoptive parents as it is for those who claim recognition by virtue of biological link. Thus, it makes total sense to me that we call all people holding this set of rights and responsiblity the same thing (parents) no matter on what theory they lay claim to the title.

      There may be places where we want to distinguish between those who claim legal parentage in difference ways, but I’m not sure what they are. I’m not eager to set any particular class of parents into some lower status category, in part because I hardly think that can be good for the kids of those parents.

  5. If you call progenators and adopters by the same titles it gets kind of hard for a kid to know who he’s related to and who he’s not related to. That sort of thing starts to become important when picking a date for the prom right?

    The terms mother father and parent used to describe what a person does for a child rather than who they are to the child sort deliberately creates the illusion of a biological relationship where none exists.

    I think the same terms should not be used and I am totally willing to give up my entitlement to the word mother so that they can’t use it to describe there contractual or social arrangements

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