Making Babies, Making Familiesby Mary Lyndon Shanley
Thanks to new reproductive technologies and new ways of forming families, the world of parenting is opening up as never before. What defines a legal family? Should there be any restrictions on buying and selling eggs and sperm, or hiring "surrogate mothers"? How many parents can a child have? While there's no going back to the traditional family, Mary Lyndon Shanley shows us that we don't have to live in moral chaos. She offers a new vision of family law that puts each child's right to be cared for at its center, while also taking into account the complex needs of every family member.
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In the summer of 1998 my family and I traveled to Bogotá, Colombia, on a trip that was vitally important for all of us. We went to visit the adoption agencies in which my children had spent the first weeks of their lives, and to see something of the city and country of their birth. Kate was then seventeen, Anthony fourteen. Our decision to make the trip had been set in motion by Kate's desire to know more of the circumstances of her birth mother's decision to place her for adoption. Anthony, for his part, expressed a desire to learn the hour of his birth, letting that lacuna in the records we had stand in for all the other unknown details of his early life story.
The trip we four made together was significant to each of us individually, and to our life together as a family. To make the journey seemed to all of us inevitable and compelling. Returning with our children to the place we had adopted them, and having the pleasure of seeing again and talking with the social workers who had interviewed us and entrusted these children to our care, was a way for Fred and me to share with our children some aspect of our experiences of years ago. To be with them as they experienced the complex emotions that accompanied their own encounters with their beginnings allowed us to understand some emotions of loss and regret that are nearly impossible for a child to speak to a parent. The opportunity to share these moments of recognizing the complexity of our family bonds, which encompass original families whom we will probably never meet, was a tremendous gift to me.
My experiences attempting tohave children and then adopting led me to think hard about the nature of the desire to be a parent, and about the ways in which both procreation and raising a child are part of many people's understanding of the good life. We live in a time in which the ways of bringing children into a family have expanded greatly. Since the 1960s adoption across racial lines has become more common (although in the United States it disproportionately involves the adoption by white parents of black children and children from Asia and Latin America). So has "open adoption," in which the birth parents and the adopting parents meet one another. New reproductive technologies have made it possible to use eggs, as well as sperm, from someone else, which, along with in vitro fertilization, has made it possible for couples to conceive who previously would have been unable to do so. Single women and lesbians can also now conceive using donated sperm, and single and gay men can use donated eggs that a woman (called a "surrogate mother") can gestate for them.
The centrality of parenting in my own life's goals has made me eager in my work as a political theorist to clarify principles that can help people to construct families ethically. My first book examined nineteenth-century reforms of marriage law, and I now wanted to think about what principles should govern the ways people bring children into a family, and competing visions of how we should support family life. Although sometimes a difficult case has led to the articulation of new legal rules, there has not been much discussion about whether there are common ethical principles that apply to all the various ways of bringing children into a family through adoption or the use of reproductive technologies. But both new technologies and social practices have sparked a bevy of difficult and controversial questions: What defines a parent? Is race relevant to family ties? How many parents can a child have? Do parents need to be of different sexes? Is it genetic material alone or the labor of parenting that gives anyone a claim to legal parenthood?
In attempting to answer these questions, I have resisted the dichotomy between "tradition" and "individual choice" that runs through many discussions of family policy. That division pits those who argue that there is a single legitimate form of family, rooted in "nature" or long-standing traditions of American society, against those who assert that there is no single desirable form of family and that people should be free to form families however they choose. I insist that it is possible for law and social policy to promote liberty and choice while at the same time advancing equality, recognizing and protecting family relationships, and providing care to those who need it. How best to achieve these goals is not self-evident, but I provide examples of ways of moving toward a society committed to such a vision.
I hope with this book to further the vitally important public discussion of policies and laws that affect the ways in which people make babies and make families, topics touching not only the most personal and private aspects of people's lives, but values central to public life as well. Different perspectives and complex narratives characterize every one of the issues I examine in this book; I make no claim to have the final word on how we should think about and regulate these practices. In the chapters that follow, I draw both on my family experiences as daughter and sister, wife and mother, and on my training as a political theorist to propose ethical principles to guide family law and policy. While people such as doctors who work with biotechnology or lawyers who practice in family court may have particular perspectives on these issues, every person who reflects about her or his experience of family life has a vital contribution to make to the discussion. Only by listening to people with many different kinds of experiences and points of viewincluding those who are often marginalized or ignored, such as unwed mothers or people in povertycan we move toward a widely accepted ethics, both public and private, governing the ways people make babies and make families. I hope my reflections will move as many readers as possible to join in the conversation.
Reinventing the Family
The traditional fabric of family law is unraveling. We are living in an historical moment in which understandings about what constitutes a family, what family members owe one another, and how long family relationships endure are undergoing rapid transformation. The title of this book, Making Babies, Making Families, draws attention to the fact that the seeming stability of family boundaries established by the natural tie of heterosexual attraction, coital procreation, and biologically based family genealogies has been challenged. There are growing numbers of families in which the adult partners are of the same sex, children have been created from donated genetic material, adoptive and birth parents know one another and are both present in a child's life, households of "step-siblings" and "half-siblings" create "blended families," or adults raise children as single parents. To some people the degree of variation in family forms and the amount of personal choice in making babies and making families seems to invite liberation and fulfillment; to others it seems to create practical confusion and moral chaos.
The cultural and legal definition of family now under siege has predominated in the Western world since the sixteenth century. Not only was the family considered to be a natural, hierarchical, private association made up of a heterosexual couple and their biological children, but it was "naturally" headed by a male: the husband had authority over his wife, and the father had more authority than the mother over their children. This tradition assigned men and women very different roles: men were breadwinners, women were caregivers and nurturers. In some times and places, the law reflected the assumption that members of a family would be of the same race; some American states prohibited marriage between persons of different races, and interracial adoption was almost unheard of until the late 1960s.
Starting in the mid-nineteenth century, both legislation and court decisions began rejecting these premises, positing more equality between husband and wife, allowing that marriage might be dissolved by divorce, striking down antimiscegenation laws, creating the means for legal as well as informal adoption, requiring parents to send their children to school and inoculate them against certain diseases, and subjecting families to state scrutiny in cases of suspected neglect or abuse. But with all of these political modifications of the "natural" family order, no comprehensive new understanding of family relationships has taken its place. Rather, the old order has been pushed and pulled into new shapes by a host of economic, technological, and ideological forces.
In the decades after World War II, the combination of need produced by falling real wages and the desire of many women to engage in paid work changed the middle-class pattern of male breadwinners and female homemakers drastically. The percentage of married women in the labor force, which had been 4.6 percent in 1890, increased to 24.8 percent in 1950, and to 58.6 percent in 1991. The speed at which this increase took place is astounding; from 1950 to 1991 there was a gain of 33.8 percentage points, and the number of employed wives more than doubled. Statistics concerning families with children were equally striking. In 1950, 60 percent of American households had male breadwinners and full-time female homemakers, regardless of whether children were present. By the 1990s, the figure was reversed, and more than 60 percent of married women with children under the age of eighteen were in the labor force.
Single-parent families also increased, in part due to divorce, in part due to a rise in never-married parents. The increase in the divorce rate was steady from the 1860s (when the first statistics were collected) until the 1980s. In 1983 the divorce rate was eighteen times higher than it had been in 1860, and almost two and a half times what it had been in 1940. In the 1990s, the likelihood of a first marriage ending in divorce was above 50 percent. Single-parent households headed by a woman were more likely to be poor than were single-parent households headed by a man, and if the woman was black the chances of her children living in poverty increased. In 1997 changes in the welfare laws allowed states to require recipients of Aid for Families with Dependent Children (AFDC) (90 percent of whom were women) to take a job after six months and placed a lifetime limit of five years on receiving welfare benefits, regardless of whether there were children in the home. Economic and social factors alike made the full-time stay-at-home mother a statistical minority by the last years of the twentieth century.
At the same time, ideological pressures were reinforcing the impact of economic change on the family. The women's movement, followed by the gay and lesbian movement, articulated more egalitarian ideas concerning men's and women's roles in society. Feminist theory asserted that women should be able to assume the responsibilities of work, professional authority, and political activity previously regarded as the prerogatives of men. Feminists also challenged male authority in the household, as women insisted that their voices be heard in everything from family finances to the division of household labor to the frequency of sexual relations. While many feminists insisted that women's equality was not inconsistent with family stability, the very idea of equality put in question traditional family models based on clearly differentiated sex roles and "separate spheres" for men and women.
Changes in medicine and reproductive technology affected sexual behavior and family formation in numerous ways. The development of "the pill" altered sexual behavior both within and outside marriage by making it easier to avoid unwanted pregnancies and to plan the timing of children. In vitro fertilization made it possible for some previously infertile couples to have genetically related children. This and other reproductive technologies made possible "collaborative procreation" among people who did not engage in sexual activity with one another: alternative insemination by donor and ova extraction and transfer allowed heterosexual couples who could not conceive using their own genetic material to have children, and was also used by some single persons and same-sex couples. Through "contract pregnancy" or "surrogate motherhood," couples or individuals could contract with a woman to gestate a fetus conceived using alternative insemination or in vitro fertilization, relinquishing the child after birth.
With these extraordinarily changed possibilities for family formation, myriad ethical and legal dilemmas have presented themselves to a baffled society. When genetic parents (those who provide the sperm and the egg), gestational mother, and social and psychological parents (those who raise the child) are not the same, who should be declared the legal parent(s) of a child? Should people other than the legal parents have rights to access or visitation after adoption or after assisted conception or gestation? Should children (or the adults they become) have the right to obtain information about their progenitors?
While long-standing practices of informal and formal adoption have placed children to be brought up by people other than their biological parents in the United States, the relatively new practices of formal open adoption and transracial adoption have raised questions concerning the importance to be given to the genetic tie. Should children maintain contact with birth parents on the one hand and with racial and ethnic groups on the other? States are divided about whether to allow the law to recognize two sets of parents: the adoptive parents, who have custody, and the birth parents, who have some visitation rights. Public opinion and public law are also divided over the desirability of race-matching in adoption. In the United States, federal law requires that Native American children be placed with Native American parents whenever possible but prohibits the use of race in the placement of other children, raising all kinds of questions about the relevance of genetic bonds to our understanding of race as well as of family formation.
Other issues about the recognition to be given to the genetic tie concern the question of what parental claims, if any, a man who is not married to a child's mother should have. This question has been raised starkly in cases in which biological fathers have sought to void an adoption and gain custody after the birth mother, without informing the father of his paternity, relinquished the child for adoption. In another case, a man who had fathered a child and lived for a while with the child and her mother, despite the fact that the mother was legally married to someone else, sought to establish legal paternity so that he could petition for visitation with the child. In some of these cases courts held that the biological tie provided grounds to assert legal paternity, while in other cases courts held that being the biological progenitor of a child did not necessarily create standing to seek legal recognition of paternity. The general public as well as the courts were deeply divided over the questions of what resolution was proper, and why.
The fact that people now plan and agree in advance to make babies who will not be raised by one or both of their genetic parents has given rise to other controversies. Should there be an open market in human sperm and eggs, or should such sales be prohibited or regulated? If regulated, in what ways and on what grounds? Should the law recognize contracts for human procreation? What should a court do if someone changes her or his mind and wants to annul or modify a contract concerning procreation? For example, does a woman who agrees to bear a child for someone else but changes her mind during pregnancy have any right to be named the child's parent or to get visitation rights? Does it matter whether or not the child was conceived with her egg? If a child is born with disabilities is the contract affected? When same-sex couples who had a child together using donated sperm or eggs (and, in the case of gay men, "gestational services") separate, does the nonbiological parent have the same right to custody as the biological or genetic parent? Does a lesbian partner of a biological mother who has shared all the care of a child they planned for together have a right to sue for visitation after the couple separates? Does a man who has donated sperm to a lesbian couple and who is known to their child as her biological father have a right to seek legal recognition of his paternity in order to seek visitation when the mothers have decided they do not want the child to see him anymore?
Some people cling to tradition to ward off the uncertainty these changes have generated. I prefer to try to devise new expectations and rules grounded in familiar ethical principles. I ally myself with those who struggle to devise principles and rules that allow new measures of equality between men and women in families, new possibilities for people previously unable to create families, and new protections for children in all kinds of families. Like some theorists who have worked to construct rules based on values prior law ignored, and some who have sought to connect the principle of individual freedom with the values of intimate association, I suggest changes in the ways we think about and regulate family life that reflect the tremendous complexity in the relationships that bring adults and children together in families. But accepting change does not mean that "anything goes." New practices that allow people previously unable to create families to do so require that law and social policy pay careful attention to achieving equality between men and women; protecting family relationships, especially those involving children; and taking care of vulnerable family members.
Dilemmas abound in the efforts to reshape family law in accord with each of these ideals, and theorists differ in the weight they give to the principles at stake and in the conclusions they reach.
One strain of thought grows out of that aspect of the liberal tradition that recognizes liberty, consent, and choice as fundamental values to our political and legal system. These values place the self-governing individual at the center of social concern, and historically they have inspired important developments in laws relating to the family. Prohibitions against interracial marriage were struck down when the Supreme Court held that marriage is a fundamental right that the state can abridge only for a compelling interest. The Court also declared first that married couples and then that individuals have the right to decide whether or not to use birth control. Once people do have children, the Court had already decided, they have a right to make certain decisions about educating their children free from state interference. Unmarried as well as married fathers have a right to custody of their children if they have had a significant relationship with them.
Dealing with current dilemmas, theorists making personal liberty their highest principle would craft new law allowing people in most instances to be their own lawmakersto decide for themselves how to create families and conduct family life. For example, they argue that the right to privacy that underlies people's right to prevent conception or to end a pregnancy should also guarantee people's right to use reproductive technologies without state regulation or restriction. They favor letting people who engage in collaborative procreation make their own agreements about allowing the biological or genetic parents access to the child. In adoption, they would allow birth parents and adoptive parents to agree to whatever degree of openness or secrecy they see fit. Similarly, they would allow heterosexual, gay and lesbian, and single persons to contract for gametes (that is, eggs or sperm) and gestational services, and to reach their own agreements, before the child is conceived, about the degree of contact, if any, there will be between the donor(s), the child, and the custodial parents.
As I explain in the chapters that follow, I have serious reservations about relying on the principle of individual liberty as the primary or unqualified foundation of family law. The liberatory potential of the freedom to make choices in this vital aspect of social life depends on what choices are available and to whom. In a society already deeply structured by sex, race, and class, announcing that people have a "right to reproduce" may mean that some people get the right to take advantage of others' vulnerabilities. There is, moreover, a danger that the rhetoric of liberty and choice will result in various aspects of family formation being taken over by market mechanisms. Competitive pricing of gametes, for instance, according to the donor's characteristics such as academic performance, athletic ability, and racial features is a deeply troubling move toward the commodification of genetic material and the children it produces.
Meet the Author
Mary Lyndon Shanley is professor of political science at Vassar College. She is author of Feminism, Marriage, and the Law in Victorian England and coeditor of Feminist Interpretations and Political Theory and Reconstructing Political Theory.
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