by Jennifer Roback Morse, Ph.D

Adoption is an important, yet peripheral issue in the relationship of the family to society. It is peripheral because typically, the percentage of children who are adopted instead of being cared for by their biological parents is rather small. It is nonetheless important because the societal standards surrounding adoption reflect the values and beliefs of the society. The standards may include informal norms and social expectations, as well as legislation passed by elected bodies, and policies formed by public and private adoption agencies. The subjects of those social rules range from the social norms under which biological parents voluntarily place children for adoption, the legal rules under which their consent is secured, and the conditions under which agents of the state may remove children from biological parents and place them for adoption. Society will also have a set of shared understandings, laws and social norms about the terms under which adults unrelated to the child may be considered as acceptable adoptive parents. All of these standards reflect the values of the society.

The topic of adoption by gay and lesbian couples is a subset of this broader set of questions about shared norms and values. Before I begin to lay out my specific arguments on the topic of adoptions by gay and lesbian couples, I will situate marriage and the family and their relationship to the larger society within a larger intellectual framework.

I will cover three topics. First, what is the place of family within society and how does it differ from other social institutions? Second, what is the role of gender within society and the family? Third what are public reasons in favor of limiting adoption by same sex couples?

Family and Societ

What is the place of family within society and how does the family differ from other social institutions? I draw a distinction among three separate but interlocking spheres of society: the family, the market and the state. Each of these three spheres has its own role, and area of competence. And each of these three spheres, the family, the market and the state, has its own set of descriptive language, its own set of norms, and its own means of enforcing those norms.

The family is the basic unit that propels the society forward into the next generation. Neither the state nor the market can perform this function of generating and rearing children. A man and a woman, united in marriage, and their children, constitute the basic cell of the family. I realize that the claim that marriage consists of one man and one woman is a disputed claim. I will deal with this issue below in the section on gender.

Within marriage, husband and wife give themselves fully to each other in love for each other and in openness to the new life that is the possible fruit of their union. Parents have the natural right to educate their children. The family has the potential to teach its members mutual care across the generations. Inside the family, people learn to take responsibility for the young, the old, the sick, the handicapped, the poor and the weak. The family is held together by more than the force of law or the mutual interests of strangers. The family is held together by love.

The Family as Distinct from the State

This natural society is distinct from the political sphere. The family has the capacity to sustain itself across the generations, and to generate new members. The state does not create the family. Rather, the family unit pre-exists any political community and the public authority has an obligation to recognize it. Some families may sometimes need assistance including perhaps from the public sector, to perform its functions of caring for and sustaining its members. But this assistance should not usurp the primacy of the family.

I defend the distinction between the state and the family by considering the alternative. Suppose that the biological parents did not have the primary responsibility for the bearing, rearing and educating of children. The state is not really a plausible alternative to the natural parents. The agents of the state can not have the motivation and knowledge to take care of the child as well as reasonably well-functioning parents. If you are not convinced, look at the children who have the state as their primary parent, namely, children in foster care. These children are wards of the state, and for all practical purposes, are raised by agents of the state. No matter how good and caring the social workers may be, their custodial care does not take the place of a personal parental relationship with the child.

And no matter how extensive the range of material services the state may offer to assist in the care of the child, these services do not take the place of the relationships with loving adults bound to the child by permanent ties of love. While the existence of foster care illustrates the fact that not all biological parents are good enough parents, it does not follow that the appropriate substitute for the parents is the state. The proper substitute for the biological parents is another set of permanent parents. When the biological family fails, the state has an important and necessary role to play. But that role should properly be to either return the child to the biological parents as soon as possible without compromising the child’s safety, or to place the child with set of permanent adoptive parents. Even in the most extreme case, in which the natural family is not capable of taking appropriate responsibility for the child, the state should not attempt to take the role of the family for itself.

The Family as Distinct from the Market

The family is distinct from the market as well. The conjugal bond is more than a contract, since it connects the individuals for an unspecified time and for open-ended purposes. Untold numbers of marriages have foundered on the contract analogy. “It’s not in my job description,” is the attitude of an employee not really committed to the success of the shared enterprise. “I didn’t agree to do this for you when I married you,” or “I’ll do this for you only if you do that for me,” are the attitudes of a person who is in the marriage for themselves, and not for the good of their shared life.

Once the couple has children, the contract metaphor is even less applicable. The children can not give consent to their own birth. Reducing parental obligations to a contractual obligation between the generations does not do justice to the vast array of mutual obligations, exchanges and gifts that characterize the parent-child relationship. Nor do the parents “own” their children. The parents have a complex system of parental rights and obligations, including rights of contact and obligations of support, rights to certain kinds of decision-making on the child’s behalf and limit- setting of the child’s behavior. But this whole set of parental rights is not equivalent to property rights. The bonds between parent and child can not be adequately described by market relationships. Family law is not a subset of either contract law or property law.

Gender, Society and the Family

I now will defend my earlier claim that the basic social unit is the conjugal bond between a man and a woman. Men and women are different in socially significant ways. These differences are intrinsically complementary, and have the potential to be sources of mutual benefit, despite the easily observed fact that gender differences can be source of conflict and misunderstanding between men and women.

I argue that complementarity between men and women is an essential aspect of both marriage and parenting. Obviously, the reproductive process itself requires a parent of each gender. For their full development, children need parents of both genders. Mothers and fathers each make unique and distinct contributions to the child’s development. We know that mother absence in infancy places a child at risk for attachment disorder. We know that breast-feeding offers unique physiological and psychological protections to an infant. Likewise, fathers provide valuable inputs that women, even masculine women can not provide. The absence of a child’s father in the household places boys at risk for delinquent and girls at risk for early sexual activity. Across a wide array of behaviors, we find that boys and girls respond differently to father absence than to mother absence, and indeed that boys and girls develop differently, and respond to their environments differently. Gender is a relevant category for parenting.

The alternative view is that gender is an irrelevant category and that men and women are interchangeable. There is no unique contribution of either gender to anything relevant to the family. The contributions to child-rearing that I am calling uniquely masculine can be rendered by a woman. The uniquely feminine contributions to the family can in principle be provided by a man. But this view that men and women are perfect substitutes for all practical purposes undercuts the very idea of sexual orientation.

A gay man’s insistence on a male sexual partner provides evidence that he does not regard men and women as perfect substitutes. A lesbian woman’s desire for a female partner illustrates that she herself does not regard even a “feminine” man to be just as good as a woman. If men and women were truly interchangeable, then the idea of “sexual orientation” would be incomprehensible. No one would insist on either an opposite sex partner or a same sex partner. No one could plausibly claim that they were being discriminated against by the requirement that marriage consist of a man and a woman. Evidently, the same sex experience can’t be replicated by having an opposite sex partner. I conclude that even people who experience same sex attraction believe that the differences between men and women are significant and meaningful. Gender is relevant, in at least some dimensions.

Advocates of same sex parenting claim the gender is irrelevant for the purposes of parenting. Everything a child gets from his mother can be equally obtained from a household with two fathers. Likewise, he or she can just as well receive everything a child gets from his father all across his developmental stages, from a household with two mothers. Yet at the same time that gender is supposed to be irrelevant to children, gender is considered crucial for adults. The same adults who insist on a partner of a specific gender claim that the children regard the gender of his parents as irrelevant.

Put another way, adults are entitled to have what they want. Children have to take what we give them.

Advocates of opposite sex parenting face no such conundrum. We accept that the differences between men and women are real, significant and complementary. Indeed, one of the great purposes of uniting men and women in marriage is to provide the children they may bear with the unique and mutually complementary gifts that each gender provides.

Public Reasons for Limiting Adoption by Same Sex Couples

This, then is my first public reason for limiting adoption by same sex couples. The child has a right to have a relationship with both of his parents, united to each other in bonds of love. The situation of adoption itself presupposes that something has happened to disrupt that ordinary entitlement of the child. However, the child is still entitled to an adoptive situation that most closely mirrors a life-long relationship with both parents.

We want the child to have contributions of each gender to his well-being, and we want the child to be supported by a stable long-term relationship marriage relationship. We know that children do best with their biological parents, married to each other. This is superior to having divorced parents, step parents, cohabiting biological parents, single parents. Based on that evidence, combined with the inconclusive nature of the evidence on same sex parenting, we have no right to assume that children will do just fine with same sex couples.

This is a public reason, in exactly the sense used by philosopher John Rawls. These are reasons that any reasonable person can affirm, and which require no specific access to any private revelation or belief system.

Are there public reasons by which we might say that any particular person has a “right” to a child? Specifically, are there public reasons why anyone might have a right to parenthood in general? And even more specifically, are there public reasons why we should prohibit discrimination against same sex couples by either public or private adoption agencies?

The ability to become a parent, while naturally inhering in most conjugal relationships, is not an absolute right in the sense of an entitlement. The fact that many people who, for a variety of reasons, are unable to have a child biologically, does not give any particular person a right to parenthood in general. The fact that childless individuals want a child does not by itself constitute a public reason why they are entitled to have one. The desires of individuals or couples is not a public reason. No one has a right to have a child, in the way that we might argue that anyone with the ability to pay has a right to purchase a house. This use of the language of the market assumes the very point that is necessary to prove, and which I believe can not be proved: namely that a child is a kind of commodity, to which other people have rights and entitlements. The child is not an object of rights, but a person who has rights of his or her own. The child is an end in himself or herself.

There are circumstances in which same sex adoption should not be prohibited. For instance, private adoptions and some second party adoptions may not be optimal for the child, but prohibiting them may involve undue intrusion into private decision-making. Relative adoptions when no other suitable relative is available may be the best situation for a particular child.

But these limited circumstances are quite different from the generalized “right” claimed by advocates, that the state should not discriminate against same sex couples in placing its wards for foster care or adoption. The state absolutely should discriminate in favor of opposite sex married couples. It is utterly irrational for the state to pretend that there are no differences between opposite sex married couples and cohabiting couples or single individuals or same sex couples. And barring such discrimination by otherwise responsible and reputable private adoption agencies is not only irrational, but a completely indefensible violation of the freedom of those private agencies.

Conclusion

I have offered reasons why adoption by same sex couples is not an entitlement: the rights of the child to take primacy over the desires of the adults. The child has a right to the unique contributions that each gender can make to his well-being. The child is entitled to the benefits of having married parents. Both are public reasons. I am prepared to live with my own doctrine of public reasons. “I want,” is not a public reason. “God told me,” is not a public reason. I do not rely on these or any other private reasons to make the case that adoption by same sex couples should be limited.

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