Academic

Some Possible Questions

By Julie Shapiro

My last post raises a few questions, at least for me. One I have an answer for, the others I do not.

–How important is the intention to be a parent? This is the one I think I can answer. (I owe some thanks to a poster at Feminist Law Professor for a helpful hypo.) Suppose it isn’t actually the woman’s choice to continue the pregnancy through to the birth of a child. Suppose that result is forced upon her (by circumstances, by the failure of our society to make her options real or, as suggested in the hypo, by brute force). I still think that when the child is born she is a parent. It’s the fact of pregnancy/childbirth that makes her a parent. I realize in the past I have alluded (more than once) to her decision to continue the pregnancy. But the poster makes me realize that that is at best a make-weight. The performance of this essential parental role, intentional or not, makes her a parent.

I’ve been heading for this conclusion–that function should be the determinant of parental status–for some time. But somehow this little hypo caused it to gel for me here. I think there are fairly broad implications that follow from this and I’ll have to follow those up in other posts.

– When exactly does the woman become a parent? I’m committed to the idea that she is not a parent at the time of conception. And now I’m also committed to the idea that she is a parent at the time the child is born. So somewhere in there she becomes a parent. It’s tempting to say simply that she becomes a parent at the time of birth and perhaps that is the right conclusion for me. But it seems to be a little more complicated than that. If she is a parent because she has functioned as a parent then that would seem to suggest something akin to a parent/child relationship existed before the child was born. This seems inconsistent with what I’ve said earlier. I think I’ll just let this slide for now.

Having said that, I will still note that any sort of functional test for parenthood generally won’t yield nice firm rules for when parenthood begins. That’s a practical problem. It also seems that functional parenthood isn’t necessarily permanent. If you stop functioning as a parent for long enough, then you aren’t a parent any longer. Here, too, I see there could be problems ahead.

– Under my working hypothesis, all children have at least one parent (a mother) when they are born. But they may not (and in the one-night-stand situation I’ve been focused on, they do not) have a second parent. Yet I do not rule out the possibility that some children will have more than one parent at birth. How does a second person get to claim parenthood at the time of birth? Not exactly sure yet, but stay tuned.

-Julie Shapiro (cross posted to Related Topics)

Full post as published by Feminist Law Professors on February 28, 2008 (boomark / email).