I’m back! I thank you all for your patience while I was travelling. There are some comments I need to read through but I also have a couple of posts in mind. One–this one–is general, not hooked to current events, and what I was thinking about while away. The other (which I hope to get to later today) is more about recent news.
Those of you who have been reading the blog for a while know that there is lively debate about various competing tests for parentage–genetic relationship, intention, function, married to another parent and so on. What struck me while I was travelling is how often the devolves into a zero sum game, where one person’s claim to rights necessarily diminishes the rights of another.
Now I’ve written about this from time to time and I do think there are reasons why it ends up this way. But perhaps we rush to that zero-sum game part a bit too quickly and maybe it is too easy to assume that this stage is inevitable.
Is it possible to avoid the compare/contrast/rank part of the analysis? I guess I’m not sure, but I did try to think a little bit differently. Here’s what I mean.
Let’s imagine you have new neighbors. There’s an adult and a child–a young child–maybe one/two/three years old. Because they are your neighbors you see them out and about and have a sense of the rhythm of their lives. And what you see is that the adult acts like a parent to the child.
Now it’s necessary to pause here. What does that mean–to “act like a parent?”
There are a couple of problems here. First, while it means something to me–something pretty clear and distinctive, in fact–I’m hard put to clearly articulate it. This is, I’m afraid, in the “I know it when I see it category.” And of cousre, what I will know when I see it may not be what you will know when you see it. It’s a fuzzy and individual idea at best. Second, I wonder if there are people for whom it doesn’t have meaning–people who would not even say “I know it when I see it.” Thus, my hypothetical–that you see your adult neighbor acting as a parent to your child neighbor–doesn’t mean anything to them.
Despite these problems I’m going to press on a bit further. So to return, you see your neighbors acting like a parent to the child. (I’m happy to flesh this out a bit more if that’s useful.) And time passes.
The question, then, is whether the law should (presumptively at least) recognize and/or protect the relationship between your neighbors in some ways? It seems to me there is a simple and clear argument in favor of some sort of protection–one that can be rooted in the general societal interest in the well-being of children as well as in some idea of fairness to/concern for adults.
It’s reasonably well-known (though I suppose it is not incontrovertible) that children benefit from forming strong and stable psychological attachments. Disrupting those attachments is sometimes necessary or inevitable, of course, but it could be recognized as undesirable. And in order to secure those sorts of attachments we could decide to grant protection to the relationships that create/comprise those attachments.
That’s the justification, I think, for saying that some rights of some sort should arise from a functional parent/child relationship. And that’s as far as I want to take this right now–no comparisons, no consideration of implications for other people who might claim protections of other relationships.