Monthly Archives: November 2012

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When “Best Interests” Cannot Guide

I. Glenn Cohen, Regulating Reproduction:  The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), available at SSRN.

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent.

Cohen’s focus is on policies affecting “decisions about whether, when, and with whom to reproduce.”  Such policies would include restrictions on who can use in vitro fertilization (IVF) (with some clinics excluding single patients, unmarried couples, older patients, and same-sex couples); laws requiring insurance coverage for IVF costs; laws requiring gamete donations to be non-anonymous; laws criminalizing surrogacy (or commercial surrogacy) or simply refusing legal enforcement of such agreements; and laws criminalizing incest between adult siblings.  As Cohen points out, the “best interests of the child” principle is commonly offered, by both judges and commentators, as one of the justifications for such policies.  However, this assumes a comparison that is almost always absent.  The argument is that children of same-sex parents or older parents or single parents or parents using anonymous gamete donors, etc., suffer some distinctive harm.  However, if (for example), a same-sex couple is not allowed to use the IVF treatment or the surrogate the couple needs to have a child, the child the couple might otherwise have had will now not come into existence.  It is not as though the same child could have come into existence, but with younger, married, opposite-sex parents who did not need to use a surrogate.  This is what Cohen (following Derek Parfit, Reasons and Persons (Oxford, 1984)) calls the “Non-Identity Problem.”  If the choice is between a particular child existing and this particular child not existing at all, then one can hardly say that this child was harmed by being born to a single parent, an older parent, a same-sex couple, a couple who used a paid surrogate or anonymous gamete donors, etc. — unless one could say that that child’s life is so bad that it would have been better had she never been born at all.  We are rightly reluctant to say that, even for children with rather unfavorable circumstances (and courts agree, as shown in their near-universal refusal to recognize claims of “wrongful life” on behalf of seriously ill or disabled children).

Cohen notes that sometimes policies affecting reproduction create “Imperfect Non-Identity Problems,” as there may be cases where the same child would come into existence with or without the policies.  Thus, the same gamete donor might donate even if anonymous donation is no longer allowed, and the same surrogate may be willing to offer her services despite the prohibition of payments above expenses.  In such cases, hypothetically, the same child could come into existence who would have been born without the regulation, and this same child would have the better circumstances created by the regulation – in any event, a true comparison can be made — but these cases are likely to be exceptional.  It is more likely that policies of these sorts will affect whether children are born and which children are born (e.g., as the class of potential gamete donors who will still donate even if they are to be identified differs from the class willing to donate anonymously, those having children using gamete donors will likely have genetically different children depending on which policy is in place, and those needing gamete donors may end up having no children if a policy of non-anonymity leads to a shortage of donors, as has occurred in some countries).

In summary, Cohen’s important article reminds us that, in the area of regulation of reproduction (as in many other areas of family law), we — commentators, courts, and lawyers alike — must get out of the intellectually lazy habit of defending our preferred public policies based on “best interests of the child,” and either find an alternative defense or change our policy preferences.1



  1. For further work extending Cohen’s analysis in Regulating Reproduction, see also I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012) and Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson, 97 Minn. L. Rev. (forthcoming 2012), available at SSRN. []
 
 

Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws

Camille Gear Rich, Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Calif. L. Rev. (forthcoming 2013), available at SSRN.

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling?

Perhaps we assume that child molestation statutes adequately distinguish innocent behaviors from alarming ones. Not so, Rich claims. Some child molestation statutes impose specific intent requirements compelling prosecutors to prove sexual motivation or illicit intent. Others carve out exceptions to general intent requirements for behaviors construed to be normal caretaker responsibilities. Either way, Rich contends, intent determinations turn on social norms (or “common sense”) about appropriate parenting behavior, and these norms are highly gendered. A mother blowing kisses all over a child’s belly is relatively common and unproblematic. The same behavior by a father, grandfather, stepfather, or boyfriend raises suspicion. Further, prosecutors tend to judge the appropriateness of some behaviors—for example, bathing with the child, parental nudity, diapering practices—by whether the child’s mother has authorized them. Mothers are the gatekeepers, and fathers parent at their own risk. They may do as mothers say, but not necessarily as they do.

Rich objects to the increasingly broad definitions of child molestation because, whether they are applied to just to men or to men and women equally, they intrude on family autonomy and privacy. Her emphasis, however, is on the specific damage caused by treating men differently. Gendered child molestation standards generate gendered parenting behaviors, as men understandably avoid actions that may raise suspicion about them as parents, even as women through these same actions deepen their own intimacy with their children.

Rich holds feminists at least partially responsible for the gendered standards she identifies. She blames primarily dominance feminists, who heightened awareness of sex abuse, urged successfully that legislators enlarge its definition, constructed molestation as a sex-specific wrong that men commit against innocent women and children, and insisted that prosecutors and judges believe women and children when they claim abuse. This strategy helped to entrench societal understandings of men as dangerous sexual predators who are not to be trusted to get too close to children, and constrained male behavior and self-definition accordingly.

Rich argues that spooking fathers is not in women’s interests, and that feminists should have known better. Liberal feminists, in particular, understood that loving and engaged fathers who enthusiastically assumed their share of caretaking responsibility for children were critical to equality for women. Rich concludes that these feminists failed feminism, and families, when they did not resist the overly broad and gendered construction of sex abuse that dominant feminists promoted. Perhaps liberal feminists were asleep at the switch; maybe they were reluctant to criticize a brand of feminism that seemed to put women’s interests front and center. Either way, she argues, they neglected to act on their own egalitarian principles.

Liberal feminist complacency on this and related family law issues has created the need, and space, for a “new camp of post-dominance” feminists,1 with which Rich allies herself. By Rich’s description, these feminists have more backbone than liberal feminists, and they take more seriously the feminist values of autonomy and liberty. They believe that the law is overly paternalistic when it intervenes too much in family relationships, and that this paternalism “prevents women from exercising personal agency to decide what kinds of family relationships they would like to form.”  More broadly, post-dominance feminists oppose the “sexual suspicion of men at the heart of the dominance feminist critique”—suspicion that “threatens men who have adopted an ethic of care.”

Many family law issues have divided feminists, but this one may be more challenging than most. Rich anticipates the potential downsides to the attention she draws to the lack of gender neutrality in the prosecution of child molestation—that the conduct of mothers will be more closely scrutinized; that too much latitude will be given to abusive fathers; and that only the most privileged men will benefit from creating more gender-neutral standards. Rich responds to these difficulties by acknowledging the necessity for women’s autonomy and children’s safety, and by arguing that greater parental autonomy will serve gay parents as well as middle-class fathers.

Yet it is not clear that the problem Rich describes can be easily resolved. The inconsistency she identifies suggests anxieties about parenting, sex, and equality that many feminists, despite their own best intentions, cannot seem to dispel. We want men to share responsibility for children and are critical of them when they do not do so. At the same time, we do not seem to trust men with children in the same way we do mothers. Rich argues that feminists cannot have it both ways: we cannot both treat men suspiciously, as second-class parents, and expect their full and equal commitment as loving caretakers. She’s right, of course—whether or not we have the will to act on her powerful insights.



  1. E.g., Melissa Murray and Jeannie Suk.  See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006). []