This post grows out of an exchange in the comments on an earlier post. Ki Sarita (not sure about how I should capitalize that) and I have been having an exchange about whether I (or perhaps more narrowly, my opinions?) are anti-male. In fairness, I think Ki Sarita’s views here are based on far more than that one posting as she is a long-time reader/commenter here. But I’m going to focus on that post (which is about a case involving a doctrine called “de facto parentage”) in order to make a few points. I realize they may not address the full scope of Ki Sarita’s argument but I want to make what is perhaps a subsidiary point. I’m also going to have to cover some background before getting to my point, so some of you may wish to skim ahead.
The idea in de facto parentage is that the law should recognize and protect existing psychological/social parent/child relationships. De facto parentage is probably most important where a legal parent co-parents with someone who, for whatever reasons, doesn’t gain status as a legal parent in any other way. (When I say two people “co-parent,” I mean they share responsibility for the child in the way countless two parent families do.)
So for example, the husband of a woman at the time she gives birth (or in some places a wife these days) doesn’t need de facto status because he/she can claim parentage via the marital presumption. (Of course, that presumption, too, is controversial–but that’s is a different issue that has been and doubtless will be discussed elsewhere on the blog.) But if the woman who gives birth is part of an unmarried couple, the unmarried partner cannot invoke that presumption.
Most of the legal developments in de facto parentage in the last twenty or so years has come in cases of lesbian couples. In the simplest sort of case, the couple plans to have kids. One woman gives birth–which makes her a legal parent. They raise the children as co-equal parents for some years and then they split up. The legal mother asserts that the non-legal mother (her former partner) has no status to seek time with the child. It is in this setting that de facto parentage is often invokes–as a means for the non-legal mother to claim status as a legal mother. You can find many cases and many posts here in which this is discussed.
In general the bar for qualification as a de facto parent has been set fairly high. You have to serve as a parent for a substantial period of time and you have to have a fairly substantial relationship with the child. (Notice that neither of these requirements is imposed on the spouse.) It is supposed to be hard to claim status as a de facto parent. Transient boyfriends/girlfriends of the legal mother won’t measure up.
Now as written the test for de facto parenthood is completely gender neutral. Whatever the requirements are, they are expressed without any reference to the sex/gender of the people involved. But it is also a test that very likely benefits more women than men. Does this mean it is anti-male?
Answering that question depends on understanding why the results of this gender neutral test are skewed according to gender. There are at least two reasons why I think de facto parentage benefits more women than men.
First off, women have needed the doctrine more than men have. Other doctrins have served men. Historically many men have been able to claim legal parentage under the marital presumption while women have not. (This is because the marital presumption begins with a woman who gives birth and only men could be married to women.) Even for unmarried couples, “holding out” allowed many men to claim legal parentage. This doctrine was explicitly gendered and was not available to women. (Indeed, I think you could make decent argument that holding out was de facto for men. And it is clear that a claim under holding out requires far less than a claim under de facto.)
What all that adds up to is that there weren’t many men left who wanted to be legal parents but had no path to that status–so there weren’t many men to claim de facto parentage. There were, however, women who needed to use it–many of them lesbian partners.
The second reason why de facto benefits women are more likely to actually be doing the physical/emotional work of hands-on parenting. I do not by any means to suggest that there aren’t many (literally millions) of men who do this work, too. Certainly there are. But I think it would be naïve to assert that in today’s world the actual hands-on parenting is performed equally by women and men. Put somewhat differently, de facto parentage works to the advantage of caretakers. Since more caretakers are women than are men, perhaps this means it works to the advantage of women.
I’m not convinced this is actually a bad thing. I think men are perfectly capable of doing the work of caretaking just as well as women. (Not exactly proof, but this if from tomorrow’s NYT.) Perhaps what de facto does is to create an incentive to actually do the work? Wouldn’t that be a good thing? Shouldn’t we encourage that? (This is quite apart from the other justifications for a de facto doctrine, which I’ve discussed in the past.)
There’s more to say but this is long enough for a frigid Saturday AM.