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  • When a man and woman have a child together, what should the law require of them? Tweet This
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Since the U. S. Supreme Court struck down laws disadvantaging children born outside of marriage (“illegitimacy” laws) beginning in the late 1960s, a large and unanswered question has lingered in family law: how can we discourage nonmarital births and channel childbearing into marriage in order to give children stable parental relationships? Illegitimacy laws operated on the notion that punishing children for their parents’ behavior (both legally and socially) would impede nonmarital pregnancies and births.

Since the disappearance of these laws, policy-makers have struggled to find a way to achieve the same end. It is only possible to evaluate a recent contribution to this question—University of Oregon law professor Merle Weiner’s A Parent-Partner Status for American Family Law—in the context of a brief history of such efforts. (Weiner’s proposal would also apply to children born to married parents, but its most intriguing potential concerns supporting the most economically and socially disadvantaged children.)

Federal law regularly addresses nonmarital births, but state and local governments sometimes do the same. East Cleveland, for example, passed a zoning law forbidding more than one nonmarital child in the household of his or her grandmother. The Supreme Court struck down this law in the 1970s on the grounds that it violated a fundamental constitutional right for blood-related extended family members to live together.

Better known are the massive government-funded sex-education, contraception, and “youth development” programs, and legal abortion, all of which have been available especially from the 1970s to today, and concentrated in poor and minority neighborhoods where nonmarital birthrates are highest. The results are not highly encouraging. Over this period, teen pregnancy (alongside teen marriage) has declined, but rates of unintended pregnancy and nonmarital births have soared, especially among women in their twenties.

Federal activism respecting child support is another response to rising rates of nonmarital births. Especially from the 1970s to today, the federal government offered incentives and imposed demands on states with regard to child support guidelines and enforcement. Welfare reforms begun in the 1990s focused a great deal on nonmarital households, and gave states leeway to “experiment.” In the last 15 years, both the Bush and Obama administrations have expended money and bully pulpit efforts on strengthening marriage and fatherhood. The earlier administration focused more upon attracting the less-privileged toward marriage, and the later upon attracting men to fulfill their parenting responsibilities. Throughout this period, various federal programs have attempted to provide basic necessities to impoverished single-parent families: health care, education, job training, housing, food, day care, etc.

While evaluations of these programs’ efficacy vary widely, it is fair to say that few believe that there is anything “in the pipeline” which can make a substantial difference in the number of children born to adults who not stably committed to one another. This is so even as liberals and conservatives agree more often today that both economic and “healthy-marriage” initiatives are needed to nudge children’s welfare in the right direction.

The hurdles to discouraging nonmarital births and giving children stable parental relationships are tremendous.

And it’s no wonder. The hurdles are tremendous. Ethically, efforts to influence family formation should not harm children as a means to shape adults’ behavior. Adults routinely forget about the link between sex and children. Children are desirable, even, for some, outside of marriage. Money cannot perfectly substitute for familial relationships and actions—phenomena in which the whole is greater than the sum of their parts. Economic and social conditions render stable employment, and thus marriage, a distant dream for many. Advocates continue to believe that ramping up the availability of long-acting reversible contraceptives (LARCs) can accomplish in the future what contraception has failed to accomplish in the past. Multiple-partner fertility and casual sex severely complicate parents’ relationships with each other, and with their children.

Onto this landscape comes Professor Weiner’s proposal to legally bind the two adults who conceive a child into a relationship featuring several mandatory, mutual obligations. She calls it “Parent-Partner” status. It is more ambitious than current educational and bully-pulpit exhortations, more demanding of parents (versus the state), and genuinely new. While single parents who adopt or employ (donor) assisted reproductive technologies are not included, married, divorced, cohabiting and non-cohabiting couples who conceive a child are. This obligation is in addition to the existing requirement that noncustodial parents pay child support according to state law. It is not optional.

Parent-Partner status is comprised of five elements that would attach automatically upon the birth of a common child. Co-parents are required to: render aid when the other parent is in distress (e.g. as in a medical emergency); not abuse the co-parent; be subject to a heightened loyalty requirement should they enter into a contract adjusting their financial relations; engage in “relationship work” with a counselor at the birth of the child and at the end of their romantic relationship; and “fairly” share caregiving, or accrue a debt to the co-parent who has undertaken “disproportionate” care. Weiner compellingly argues that the legal responsibilities currently linked to spouses, cohabitants, and parent-child relationships do not create co-parenting rights and obligations sufficient to support healthy children.

It is impossible in this brief review to do justice to Weiner’s proposal, set forth in over 500 encyclopedically sourced pages. Her arguments are for the most part thorough, and anticipate likely critiques nearly exhaustively. There is a great deal to like and to praise in her proposal. For one, it frankly acknowledges the relationship between parents’ cooperation and children’s welfare. This is not a given in American family law, where many are still reluctant to whisper that some family structures are more conducive to children’s well-being than others. Weiner also bluntly and regularly relativizes the good of adult autonomy. This, too, is not as common as it needs to be in the family law arena (thus divorce laws making virtually no provision for minor children, and assisted reproductive technology laws ignoring children’s possible interests in knowing their genetic parents).

The proposal furthermore should encourage people to think at least twice before participating in sexual intimacy with a person with whom they do not wish to share an 18-year relationship. Such an outcome would be a remarkable legal accomplishment, and has been mostly ignored in past efforts to address nonmarital childbearing. Further, Parent-Partner status not only avoids hurting children in order to influence parents, but directly aids them. It also recognizes that money cannot substitute for parents’ cooperation.

Commentators participating in an online symposium at Concurring Opinions have noted other strengths of the proposal, while also voicing concerns. Some fear binding women to violent men, or even inciting violence. Others wonder especially about the elements of relationship work and paying for caretaking. The relationship work requirement could be evaded fairly easily (at most, a recalcitrant partner could be ordered to an information session regarding the benefits of relationship work), and might be costly. Caretaking payments are likely difficult to calculate and would burden precisely the population that already struggles to pay child support.

I find it nearly impossible to pronounce one view on the proposal, but instead offer several observations in addition to those above. A Parent-Partner Status for American Family Law is a noble effort by a gifted and sincere family scholar to seek to turn adults’ thoughts and responsibilities toward vulnerable children, especially the poorer. I would not fear that a new Parent-Partner status would displace marriage, which enjoys a long and revered reputation as “the gold standard.” At the same time, I wonder if the status would lead to greater promotion of LARCs and maybe even abortion—with all of the risks these pose for the freedom, equality, and happiness of women, especially the poor and women of color who would no doubt be the focus of any intensified efforts.

I would also like to see more consistency in the author’s thinking respecting children deliberately conceived with donor gametes or by single parents. These children, too, may possess interests in knowing and being supported by both of their parents.

Finally, I wonder a great deal about the efficacy of relationship counseling in the absence of a common life, and in the presence of very high rates of multiple-partner fertility and serial cohabitation among unmarried and divorced women and men. How would all the parties involved sustain the relational and caretaking requirements of the statute in a peaceful and fair manner? The prospect is daunting.

Helen Alvaré is a Professor of Law at George Mason University School of Law, where she teaches family law, law and religion, and property law.