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Thursday, August 16, 2007


photo of Katherine K. BakerKatherine K. Baker is a Professor of Law and Associate Dean at Chicago-Kent College of Law and has an article titled Bionormativity and the Construction of Parenthood in a forthcoming 2007 issue of the Georgia Law Review. A thorough and fascinating article, it provides a model for understanding and analyzing the modern American legal system's regulation of parenthood.

Historically, parentage was determined by marriage. In the last twenty years, however, technology has made it possible to determine conclusively the biological father, and the law has shifted to a biological basis for determining parenthood. In our current legal regime, marriage, adoption, and gamete donors are the exception and biology is the norm; hence, Dean Baker labels the system "bionormative."

The current bionormative regime has three features; it is private, exclusive, and binary. It is private, in that the state tends not to regulate parenthood, and the state tends to avoid using public funds to finance parenthood. Dean Baker surveys regulation and financing of parenthood in peer countries and proves that the American legal system intrudes into parenting decisions, assignment of parenthood, and financing parents the least of its peer countries. The state probably favors parenthood being private because it reflects classical liberalism (limiting state intrusion into people's lives) and it reduces the financial burden placed on the state. Similarly, parents probably prefer a private system because it provides greater autonomy in parenting decisions. Parents probably do not want increased state financing of children either because of the likelihood that increased financing would lead to increased regulation. To show that children probably want a private system, Dean Baker turns to child psychology that suggests that children depend on parents to provide values and a value-system for the children. Diluting the privacy, or the ability, of parents to inculcate these values is damaging to children. Poor parents and children, however, already have diluted privacy in the American legal system--through social welfare programs and public funding, courts and administrative agencies routinely regulate poor parents. Poor parents and children, therefore, have little interest in maintain the general privacy rule in a bionormative system. Since their privacy is already compromised, they have little to lose by increasing public regulation and funding of parenthood, and they may even stand to gain from increased state involvement.

The second aspect of a bionormative system is its tendency to be exclusive. I interpreted Dean Baker's explanation of the legal ability of a parent to exclude other claimants from the parenthood of her children as being similar to a property owner's right to exclude others from her property. Both the state and parents desire an exclusive system because it limits the ability of third parties to claim parental rights (even limited rights like visitation). A liberal legal regime likely wants to avoid a messy and complicated allocation of parental rights, and parents would prefer to preserve their parental autonomy. Children, on the other hand, sometimes benefit from exclusivity, and sometimes do not. They benefit to the extent that exclusivity provides stability, but they may suffer when parents cut off access to adults with which the children have formed significant connections. Furthermore, when parents are unable to provide enough resources for their children, the children would benefit from more parents being responsible for their wellbeing.

The third aspect of a bionormative regime is that it recognizes two, and only two, parents. The state prefers a binary system because two parents are more likely to be able to provide resources for a child, which reduces the financial burden on the state. But, more than two parents would lead to more legal battles over parental rights. A binary system provides a balance that is advantageous for the state. Some parents may prefer a unitary system because it would enhance that parent's privacy, but a binary system does not dilute a parent's privacy very much, but it does increase the amount of resources available to raise a child. Therefore, most parents probably prefer a binary system to a unitary system. Children, however, do not necessarily benefit from a strict binary system. To the extent that a binary system provides more resources (including non-economic "resources" such as love) for them, they prefer it to a unitary system, but they would also benefit from a system that recognized more than two parents. Dean Baker persuasively argues that children have an interest in a system that would allow a multitude of adults with parental rights and obligations.

After establishing that the bionormative regime exists, explaining its broad contours, and detailing the state's, parents', and children's interests in a bionormative system, Dean Baker explains that some of the aspects of the regime are controversial. As stated before, the bionormative regime tends to preclude public funding for children. It is well known that the United States has one of the worst child poverty rates of all developed nations. Dean Baker persuasively argues that the bionormative regime contributes to the child poverty problem in America. I was particularly influenced by her comparative examination of poverty rates in single-parent households. In the U.S., single-parent families are much more likely to live in poverty than are dual-parent families. The article contrasted this with a study that found that "[i]n Denmark, Norway, Sweden and the UK, poverty rates for single parent children are close enough to couples' rates to not make a great difference in the overall poverty rate." Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real income of American children in a Comparative Perspective, Luxembourg Income Study, Working Paper No. 127 (1995). Dean Baker also argues that we can address this poverty crisis without compromising the privacy of parenthood:
If the government was willing to spend money on children without setting up an apparatus to make sure that the money was spent appropriately, then parenting could remain a private right for the middle and upper class and could become a private right for the poor parents who currently suffer from very intrusive state monitoring.[Footnote]

[Fn text:] The support for this state deference would be more powerful in a regime in which all parents received support for their children because middle and upper class parents are not likely to have a great deal of patience for the social worker who appears at their doorstep asking questions about bedtime and snacks.

She then identifies a second group of people that would like to challenge the bionormative system; adults that are not biological parents would like to abrogate the exclusivity (and, sometimes, the binariness) of the current regime. Grandparents, stepparents, same-sex partners of biological parents, and others would like the state to grant them parental rights. Throughout the article, Dean Baker explains how the different aspects of bionormativity (private, exclusive, and binary) interrelate and how changes to one part of the system affect other parts. The most surprising effects of changing the system come from recognizing functional parenthood. Especially because I hate movie reviews that spoil a good plot twist, I will not ruin the end of her article by revealing what those effects are.

Dean Baker also examines how adoption of children and donation of gametes fit within the bionormative system. Despite the lack of a biological link to their legal children, these groups actually benefit from the bionormative system. Provided these (potential) parents can overcome the law's preference for a biological link between parent and child, the parents are well served by the privacy, exclusivity, and binariness of the current regime.

When legislatures are creating parenthood policy and when courts are handling cases related to parenthood, Bionormativity and the Construction of Parenthood will be an invaluable resource. Dean Baker ends her article with a thorough analysis of how changing some parts of the bionormative system will affect other parts of the regime. She especially illuminates four policy areas--increased state support for children, increased legal recognition of functional parenthood, continued insistence on binary parenthood, and continuing the trend of (generally) relying on a biological link between parent and child to determine parenthood.

I highly recommend this article to anyone interested in family law because the model it provides is useful for analyzing and solving many types of issues involving child-parent relationships. See Katharine K. Baker, Bionormativity and the Construction of Parenthood, Georgia Law Review (forthcoming) (2007), available at


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