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. ((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.))