The General vs. The Specific When It Comes to Rules of Parenthood

As I try to gear up for a new year (and the best to everyone for a lovely 2012), I’ve been thinking about the problem of generalization.   This, it seems to me, is at the root of my trouble with the Catholic approach to lesbian and gay parents, which I discussed in that rather shambling post that turned out to be the last of 2011.

The complete exclusion of lesbian and gay couples from consideration as parents rests on an assumption that all lesbian and gay couples will be poor parents–and this is (to my mind quite obviously) an absurd over-generalization.   Many lesbian and gay people–single or coupled–make fine parents.  Some, of course, do not.  You could say exactly the same thing for any group of people.

The general exclusion of all people in a group from parentage is problematic.  What we usually do instead is a consideration of the specific–is this person suited to be an adoptive parent or a foster parent?   That requires an individualized inquiry.

You can see the same preference for the specific over the general in other contexts of family law.  For instance, where once we used generalizations for child custody matters (custody presumed to do to either mother or father), now we use a “best interest of the child”  (BIC) analysis.  Again, this requires individualized consideration of the case and the people involved.

While there’s something very appealing about these individualized determinations, it’s a very expensive and time consuming way to do things.   It’s obviously easier to just use generalized presumptions.   Perhaps less obviously, there may be more room for various forms of bias to creep into those individualized determinations.   (Of course, the countervailing point would be that generalizations are often based on various forms of bias, too–that women or men are better at one thing or another, for instance.)

Now to go back to the “who is a parent” question, maybe it is worth noting that you can see the same general/specific divide there.   The preference for a genetic definition of parenthood rests on a generalization, I think.   The underlying idea must be that all progenitors have some set of characteristics or some defined relationship to their offspring.   As with the other generalizations mentioned above, I think this is problematic.   Surely it is the case that some progenitors have those relationships and some do not.

If instead you consider what I’ve sometimes called a functional test–who has acted like a parent–you’re doing something more like an individualized inquiry.   The hard part is figuring out who (if anyone) fits into that category.   You have to examine the specifics of the relationships involved.   This does raise all the problems that specific inquiries raise–it’s costly, time-consuming and uncertain and there’s a potential for bias.  Nevertheless, I think the specific consideration is preferable to the reliance on broad generalizations.

I don’t think I’d go quite so far as to say that it is never appropriate to use to me that generalizations should only be used where you can feel confident that the overwhelming majority of the time the generalization holds.    (Maybe even then you need some escape valve for those rare occasions when the generalization doesn’t hold.)

I don’t mean to over-sell the virtue of individualized determinations in law.   It will tend to vest an awful lot of power in the judges making individualized determinations, and this bothers me.    But I think I’d rather tackle the problems of the specific and individualized approach rather than accept the problems generalizations.   (That’s speaking generally, of course.  :))


3 responses to “The General vs. The Specific When It Comes to Rules of Parenthood

  1. at some point; if you don’t make use of a generalization, you can’t have a law. that is the very essence of law; it’s applicable accross the board.

    • Oh, this is so very true. The problem with BIC in child custody is often said to be that there is no law–only ad hoc decision making. You are right that the whole idea of law is that it is a set of rules of general application.

      Still, there are generalizations and generalizations. Saying “young children should be with their mothers because women are more nurturing” (that’s the kind of generalization that supports a tender-years presumption) is different from saying “a child should spend time with a person who is established in the role of psychological parent.” The latter, while still a generalization, is not a generalization that is based on stereotypes. There’s surely room for a lot more discussion on this point, but perhaps it is the reliance on stereotypes to support a generalized rule that is problematic?

  2. “The complete exclusion of lesbian and gay couples from consideration as [adoptive] parents rests on an assumption that all lesbian and gay couples will be poor [adoptive] parents”

    No it doesn’t; its based on the idea that it does not matter whether they’d be great adoptive parents. They think being Gay is a sin and so they won’t place a child in the care of a gay person.

    The generalization that is a problem is not that gay people would be bad at raising children and like that is a generalization because some would and some would not just like anyone else. They are not going to look at each individual person’s qualities to evaluate their potential for being good adoptive parents. If the person is gay it means they won’t bother to look at their qualifications because it makes no difference to them whether or not their qualified, they’re gay and so they don’t make it past that initial triage to the next round.

    The generalization that is the heart of the problem is that adult sexual/interpersonal relationships have anything at all to do with adult/child relationships in care giving situations.

    We should generalize but in the opposite direction: Adult sexual relationships should not interfere with or influence their behavior or judgment while children are in their care. There are plenty of gay and lesbian people in the world who are parents and maybe if the church had its way they’d take those people’s children away from them even if the children were happy and thriving, just because either one or both parents happen to be gay. I really don’t know for sure but maybe they would seek to destroy those happy families under the guise of saving the children from being raised by one or more sinners even if the sinner had just won the parent of the year award. What the parent does in his or her bedroom really has nothing to do with what the parent has to do as far as taking care of a kid so it just should not be used as a triage check for disqualifying potential adoptive parents. Who the person is married to or who they have sex with is irrellevant to their duties in taking care of an adoptive child.

    I will say this though whoever lives in the house with the child at the time of the adoption should be qualified as an adoptive parent and should be in fact one of the adoptive parents because the agency can’t very well move a child into a home with a room mate that has not passed all the extensive background checks. That is just for the safety of the child. Once the child is not in the state’s care but in the care of an adoptive parent, then its up to the adoptive parent to make the call on who lives in the house. The state or Catholic charities has to be careful while the child is their charge.

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