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CHAPTER SIX 124 Family Diversity and the Rights of Parenthood David D. Meyer The rapid expansion of nontraditional living arrangements has made the definition of family a flash point in public discourse. In recent years, that debate has moved beyond a focus on the meaning or availability of marriage , civil unions, and other adult relationships to include innovations in defining parenthood. As a small but growing number of states have recognized nontraditional caregivers as parents, even without the benefit of preexisting formal legal ties to the children in their care, judges, legislators , and commentators have debated whether legal notions of parenthood should be expanded to keep up with evolving patterns of child rearing. A significant strand of this debate concerns the role of rights. Critiquing recent developments as nothing less than a “revolution in parenthood ,” the Commission on Parenthood’s Future suggests that a focus on the rights of adults who aspire to parent drives the expansive redefinition of parenthood: “In law and culture, parenthood is increasingly understood to be an institution oriented primarily around adults’ rights to children, rather than children’s needs for their mother and father.”1 Broader parental diversity, in this view, is a by-product of society’s acceptance of the rights claims of diverse adults—of infertile couples who wish to become parents through assisted reproductive technology, of gays and lesbians who wish to form families through marriage or adoption, and of single men and women who wish to become parents without the entanglements of a partner. At the same time, some appeal to rights to argue for a return to the integrative model of parenthood. By this view, rights—especially children’s rights—operate not as an accelerant to family diversification but as a brake. Some contend, for example, that children have a basic human right to be raised, “whenever possible . . . by the two people whose physical union made [them].”2 In the previous chapter, Don Browning emphasizes the natural law foundations of early conceptions of parenting rights and shows their influence on modern human rights instruments such as the 125 Family Diversity and the Rights of Parenthood Universal Declaration of Human Rights (UDHR) and the United Nations Convention on the Rights of the Child (CRC).3 This tradition centered rights in “the natural family” and understood them to emanate from roles and relations that were ordered by God or nature rather than socially constructed . Browning contends that renewed attention to these rights, and to the central role of marriage in ordering and effectuating them, should privilege understandings of parenthood centered on biological reproduction and marriage. Yet, even in pressing to recapture this traditional conception of parenting rights, Browning acknowledges that it has lost ground in an increasingly crowded field of rights claims from other perspectives favoring broader or alternative definitions of parenthood. The question this chapter poses, then, is to what extent the rights of affected individuals limit society’s choices concerning the construction of parenthood. Do the rights of children or adults require the state to enlarge the concept of parenthood to accommodate an expanding universe of family forms? Or do those rights require the state to channel child rearing more narrowly into the traditional “two-parent, mother-father model of parenthood”?4 I conclude that the rights of children and, in some cases, adults do constrain the state’s choices in defining the parent-child relationship, but the limits are broad, evolving, and multidimensional. Consequently, they do not coalesce to compel adherence to any single model of parenthood, whether oriented around biology, marriage, adult intentions, or any other polestar. The rights of affected individuals will often require the state to justify its choices to deny parental status, especially when the state acts against established relationships. However, those rights do not reduce the state’s choices in defining parenthood either to the integrative model or, at the other end of the spectrum, to an anything-goes model of parenting diversity. Basic rights inevitably require some diversity in parenthood but do not compel public acquiescence in whatever child care arrangements adults may agree upon. Instead, rights analysis leaves significant room for democratic choice in the construction of parenthood. In the section that follows, I summarize recent developments leading to a broader definition of legal parenthood. I then turn to consider claims that the rights of children or adults might dictate the identity of parents, either compelling or disallowing further innovation in the law of parenthood . In doing so, I conclude that three...

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