This is really a extension of the thoughts I began to develop in the last post, which are themselves the product of a thoughts spread over many earlier posts. You might do well to read the immediate preceding one to get into the line of thinking.
As anyone who is reading this knows, I am generally a proponent of legal recognition for families as they actually exist, by which I mean as children actually experience them. (This is a functional family or de facto approach if you want to poke around in the tag cloud.) By contrast, many commenters on this blog favor instead a system that recognizes those who are genetically related to a child–particularly the immediate male and female progenitors.
There’s been a great deal of discussion/debate here on the relative merits of each approach in a wide variety of settings. (Recent examples can be found here and here.) And obviously none of this is very controversial if the progenitor and the social parent are one and the same person.
What I started to think/write about last time about whether this discussion really has to be a zero-sum game. Isn’t it possible to describe a dual system of recognition–one that includes both progenitors and social families? The key would be defining the rights and obligations that people in each category get.
This is the problem with what we do now. We have it set up as all or nothing–you are either a legal parent, and you get ALL the rights and obligations, or you are not a legal parent and you get none of them. In this structure, if the genetic progenitor gets to be the legal parent she/he can completely obliterate the rights of the social parents. Alternatively, if you recognize the social parent as the legal parent then that person can completely exclude the progenitor.
Now there are reasons why we have it set up as a zero sum game. We have a system of strong parental rights. One of the most important parental rights is the ability to decide who the child spends time with–and equally important who the child does not spend time with. In other words, a legal parent can exclude any non-parent from the child’s life. It is hard to give rights to a person who is not a legal parent–because doing so inevitably diminishes the freedom of the legal parent to make decisions as she or he sees fit. And the end result is this all/nothing model.
But it doesn’t have to be that way. If you have a more moderated view of legal parental rights/obligations, then you can have some rights/obligations vested in social parents and some rights/obligations vested in progenitors. That’s what I was thinking about in that last post, really.
The question I’m thinking about now is whether there are some rights/obligations that have to be shared between those folks or whether you could just look at the pile of rights/obligations and divvy them up. To be more concrete, you could say that both progenitors and social parents have obligations to provide financial support for a child (that’s the sharing approach) or you could decide which person go that particular obligation (that’s divvying up). And you could do some of both–some shared obligations (like support) but other rights that are exclusively assigned to one or the other category of person.
Of course, the process of allocating the rights would be a controversial one. But it does seem to me it is the alternative to the zero-sum game and as such, it might be a better idea.