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. :))