My last post was about some new law enacted in Utah. I won’t try to summarize it since you can just go read it. I’ve been thinking about the law over the weekend (and I’ve looked at the comments made) and I wanted to look a bit more carefully at what it does and what (if anything) is wrong with it. The key here for me is that, as always, it’s important to think carefully and precisely about how law works and to be as specific as possible about what is wrong.
One general idea embodied in the law is if a man who is genetically related to a child abandons the child then he cannot object to the child’s adoption. (This is, I think, a fair summary of how the provisions of the law operate–really what happens is his consent is implied from his abandonment. Thus, he irrevocably consents when he abandons the child.) This does not seem like an unreasonable idea, at least to me.
It’s important not to jump ahead to the next question–which is what constitutes abandonment. For the moment, let’s just assume that what a man does clearly constitutes abandonment. Say he voluntarily walks away from all contact/responsibility for five years? In that case, in my view, he shouldn’t be able to object to adoption of the child by another, even if he suddenly decides he’d like to object at the last moment.
While I don’t know, of course, I can imagine that some might dissent from this conclusion. Particularly those very attached to the importance of the genetic link might contend that no matter what he has done he ought to be able to change his mind at the last moment. So there may be a point of disagreement here. In that case, there’s a discussion to be had about the pros and cons of having any doctrine like abandonment.
My guess is that the more controversial question is the second one–what constitutes abandonment? That’s obviously a critical question. And there’s obviously a spectrum here. To take one obvious point–let’s assume a person has to renounce responsibility in some way in order to abandon a child–for how long does this have to continue? A day? A month? Six months? A year? Five years? There’s no clear and obvious right answer—there are only competing answers. And again, it’s quite likely that we are going to find that we disagree about what constitutes abandonment.
There’s a critical subquestion highlighted by the Utah law, too. Can a man be deemed to abandon a child even before the child is born? Utah says that he can and that he does so when he fails to provide support (financial and emotional) to the mother in the six months preceding the birth of the child. Again, whatever one thinks about abandonment after the birth of a child, one could take the position that there can be no abandonment before the child is born.
Actually, I think that might be a difficult position to defend. Suppose a woman is pregnant as a result of a one night stand with a man and then he vanishes. Do we really want to require his consent before she can place the child for adoption? Don’t we need a way to say his consent is not necessary?
You can see that there are many questions to ask and many complaints one could make about the Utah law. The real point I want to make here is that it is important to think carefully and to identify exactly which things seem to be problematic. I think it is the only way to have an intelligible discussion.
One final set of points here: It’s also useful to identify the underlying goals that are to be served by laws regarding abandonment. One ever-present goal is the well-being of children generally. What I mean is that one can say that we should craft law in a way that serves the best interests of children generally. (You can see that one can defend incorporating some idea of abandonment into the law as consistent with this goal.)
But I’m sure we’ll disagree about what serves the well-being of children generally. And there are always trade-offs to be made. A policy that serves the well-being of some children may also harm some children along the way. (I think the abandonment provision might be in this category.) Don’t we need to know the proportions to decide if it is okay? I’m fairly sure we won’t agree on what the numbers/proportions are.
Are there other goals we should consider, too? Do we think about the well-being of the adults, to0–about the rights of the adults involved as well as the children?
What all this means to me is that there’s an awful lot to talk about/think about here, but it’s very important to unpack what we mean as we do so.