I know I have been inattentive and remiss as far as the blog is concerned. My apologizes. I have many things to comment on–all in open windows on my computer, which makes me nervous. This may mean you are in for a string of brief and perhaps not adequately well thought out posts. Think of them as conversation starters, perhaps.
Anyway, before I even turn to that, I wanted to toss something else out there. This is generated by some conversation we’ve had in a class I am teaching this semester. We’ve been talking about the constitutional protections for the parent/child relationship, and it is all pretty much from the point of view of the parent. Thus, the courts consider whether adult X has a protected relationship with child Y. But every now and then someone asserts that child Y has a protected relationship with adult X. There isn’t a very good framework for thinking about that.
It may seem like this is unimportant, because the child’s relationship with the adult is just the mirror-image of the adult’s relationship with the child. I’m not convinced that’s true, though.
Consider, for example, the treatment of unmarried fathers. Unmarried fathers are frequently at a legal disadvantage when compared with married fathers. They are less likely to find their relationships with their children afforded legal protection then are married fathers.
This is in part justified by the fact that the man has some agency with regard to his marital status. The idea is that if he wanted to be married to the mother, he could be. (Of course, this isn’t always true. The mother would have to agree. But let’s just put that aside.) Overall, I think for many people the idea of attaching some significance to his unmarried state seems reasonable.
But can the same be said if you look at it from the point of view of a young child? The only thing the child knows is the nature and quality of her/his relationship with her/his father. While this relationship may be shaped in part by the relationship between the father and the child’s mother, it is hard to see that marriage/non-marriage necessarily has anything to do with it. There are unmarried father’s who are, from a young child’s point of view, indistinguishable from a married father. From this perspective, grounding differential treatment on something that has nothing to do with the substance of the relationship (and that is entirely out of the child’s control) seems unfair and irrational.
To be fair, it is hard to think of children as independent legal actors. After all, would you let a three-year-old make significant decisions? A seven-year-old? A ten-year-old? Even (or especially?) a thirteen-year-old? We don’t think of kids these ages as really being capable of careful decision making and so we usually use some substituted decision-maker, the default being a parent. Parents decide what is best for their children because we like to think they are the best available decisions makers.
It even seems to me that the discussion about donor conceived children has, to some degree, focused on adult perspectives. Adults who are donor conceived are more capable of advocacy and of articulating their experience then children are. Of course I understand that the adults were once children. But the remembered experience of being a child is not quite the same as the immediate experience of being a child. (I say this not in judgment of anyone else but thinking of how limited my own abliity to reconstruct my own childhood is.)
I think it is worth taking some time to try and figure out how to take better account of the child’s perspective. Perhaps this means turning to other professions, but the that won’t lead to easy answers. So much of what people say about children is open to debate. Yet at the same time, there do seem to me to be some simple truths. Children form bonds with adults who care for them, at least if the adults are loving and kind. Their experience is local and immediate. (It’s terrible trying to stay in touch with young children by phone.) And it is rooted in their lived reality. Perhaps we should attend to the reality that children know along with all the other things we take into account.