I wrote a couple of days back about categories and particularly about the “step-parent” category. It’s best of you go back and read those posts, I think, before moving on as I won’t repeat everything but will build on it.
To be clear, the definition of “step-parent” I offered is actually the one I use in everyday life. It’s not an academic construct–if I hear someone identified as a step-parent, this is what it means to me. I realize now that the world is probably rife with misunderstandings as it is clear that not everyone shares my definition–and thus the person identifying herself/himself as a step-parent might mean something different from what I think they mean. That’s a problem. But for the moment, I’m just going to go along with my definition. (I have no idea what the most prevalent definition is.)
All of this turns out to be important when I try to formulate an over-arching theory of how people get to be legal parents. I favor a de facto test–the idea here is that a court would look at real-world facts–who is functioning as a parent to the child (and I mean functioning in a psychological as well as a social sense) and then a court would recognize (and thereby protect) those relationships. This, it seems to me, serves the interests of children because it protects the existing relationships on which they depend.
Now some people may think it a bit of a stretch, but I think this theory supports a conclusion that a woman who gives birth is, from the time of birth, a legal parent. Basically I think the process of having been pregnant–of sustaining the development of the fetus till the time of birth–is akin to the relationship I’d count as de facto parentage. I understand there might be some controversy here, but I’m prepared to stand on this ground–there is something unique and nurturing in that relationship.
The problem is finding a second legal parent. Now if the second parent is a step-parent–and remember, by this I mean someone who comes along after the original parent/child relationship is up and running–then I think I can use the de facto test for that person. There are problems–suppose they arrive two weeks after the child is born–how long before they count as a second parent. But even though I cannot solve all those problems off the top of my head, I can at least see that they might have solutions. The time depends on the age of the child and the nature of the relationship with the child, I think.
But what about the co-family planner? Someone like Sporn from this earlier post. (To be clear, the actual Sporn case isn’t that hard for me because he had been around virtually the entire life of the child.) Remember Sporn is not, from my point of view, a step-parent. Is there anyway he can claim parental status that is 1) consistent with the ideal of de facto parentage and 2) quicker. Someone posed a hypothetical–suppose Leutner had died in childbirth–would Sporn be a legal parent. He couldn’t claim de facto parentage in the direct way at that point–because he has no developed relationship at the time the child is born. And yet I find I want to give him some status more significant than that of Leutner’s sister who (let’s assume) hasn’t been part of the picture up until then.
This is a challenge for me. To restate it briefly–de facto will serve (from my point of view) for step-parents, but it doesn’t seem adequate for the people like Sporn who are, in my view, not step-parents.
I’m inclined to give people in this category something of a leg up–perhaps not full parental rights and particularly not full parental rights vis-a-vis the woman who gives birth, but some recognition greater than that accorded other people. I think there’s a rationale akin to de facto to support this in part–the person who is a partner through the pregnancy does have some sort of caring relationship with regard to the just-born-child. But I do worry about this.
Now I must run–but I wanted to at least get a start on hashing this out.