What Is Marriage For?

by E. J. Graff

  At least, for the upper classes. For the working folks, the concern was that every child be put to productive use. Once a dad had signed away his child, contract was the pressing issue—not psychology. There was no insistence that a child needed his bio-parents, no matter how heartsick that left him. “A Plymouth court severely rebuked parents whose five-year-old son frequently wandered home,” Mason writes, “and ordered that if the parents ‘do receive him, if he shall again [depart] from his said master without his lycense, that the said Frances, and Chrisian his Wyfe, shall be sett in the stocks . . . as often as he or shee shall so receive him.’ ” “Family” may always have included emotional ties, even if its members were not biologically linked, but if a family was defined by labor, then of course a work contract was your way into and out of a family. Society and the law dealt with family relations in the language of contract—just as, if tomorrow you were fired from your job, judges would scoff if you claimed a right to your office-mates’ conversation and affection.

  But as Western families began to be seen less and less as work/discipline units and more and more as nests for malleable hearts and minds—as, in other words, parents came to be regarded not as owners but as nurturers—courts and legislatures started looking differently at children. Not only mothers but also concerned others got the benefit of that strange new judicial phrase, “the best interests of the child.” The new ideology came in peculiar fits and starts. One early nineteenth-century father left his daughter with her grandparents and then tried to reclaim her—thirteen years later. Too late! The judge’s gavel decided that he had “surrendered his rights over the child, by a tacit understanding . . . allowed the affections on both sides to become engaged in a manner he could not but have anticipated . . . [and] permitted a state of things to arise, which cannot be altered without risking the happiness and interest of his child. . . . It is an obvious fact that, ties of blood weaken, and ties of companionship strengthen, by lapse of time.”

  But of course, judges were merely aligning case law with their era’s social beliefs. State legislatures soon followed. In 1851 the Massachusetts legislature passed a statute allowing full adoption. This new statute—the first of its kind—formalized society’s new attitude toward placing a child in a new family. The new law invented a completely new social fiction: a child was to be raised in her new family as if it were her “natural” one—not simply one stop on her picaresque sojourn into adulthood. For the first time, all ties to her old kin were cut, in deference to her own and her parents’ feelings. For the first time, a child was moved not because another family needed her labor, not because her widowed father needed a respite or her mother needed income from her domestic service, but because the new parents would be better for the child.

  You have to pause to see how radical a change this is: the child’s feelings, theoretically at least, are being put before the adults’ interests. Apprenticeship and fostering-out had been perfectly good methods of providing a child with everything practical: meals, shelter, clothes, discipline, training. But those practicalities weren’t enough for an era when children—white ones, at least—were thought to need nurture and love. The family was being turned upside down: no longer first were the child’s duties to obey and honor the parents; now on top were the parents’ duties to love and nurture the child.

  Perhaps even more radical, people were insisting that affection was what made a “real” family—a concept that courts and observers couldn’t always swallow. One critic of Massachusetts’ statute was puzzled—in language that sounds like the language used about IVF today—by the fact that adoption was “irrevocable”: if the child didn’t turn out well, how were the adopting parents to get rid of him? Wasn’t it bizarre, even unnatural, that “the spinster of eighty may rear a thriving family, to inherit at her death”? And so courts kept putting limits on this radical new social fiction. Courts in Pennsylvania, Texas, and elsewhere sometimes disinherited the adoptees after the adopting parent died, in opinions that said, essentially, “Maybe this guy was kind enough to take in this child, but kindness doesn’t transfer property.” Or they made adopted children pay an extra “collateral inheritance” tax, which blood children did not have to pay (just as Madeline would have to pay more inheritance tax if I were to die). As one court wrote, “why should . . . property be subjected to such an unnatural course of descent . . . [and] pass into the hands of an alien”? How could the law enforce such unnatural relationships, for such a flimsy reason as love?

  Adoption simply seemed too unnatural for some nineteenth-century courts to take entirely seriously. And perhaps they were right to worry: once affection, not blood or labor, is what makes a family, all kinds of radical shifts follow—like same-sex couples looking to marry and raise kids.

  And yet today we take for granted both mother-custody and adoption, those contested innovations. Even Britain—where lineage had long reigned in the law, where only blood could transfer property—came into the modern era and passed an adoption law in 1926. By the 1970s, custody decisions were being made on an innovative concept called “psychological parenthood”: parenthood based not on blood ties but “on day-to-day interaction, companionship, and shared experiences,” a role that could never be taken “by an absent, inactive adult, whatever his biological or legal relationship to the child may be.” The new concept of the family—the companionate family based on emotional ties, based not on duty but on choice—has so fully triumphed that today even adoption seems “traditional.” In other words, despite some of the language being floated in today’s family debates, the idea that love makes a family won the battle a century ago—when adoption was invented and mother-custody shoved aside the father’s absolute right. Society then decided that nurture and care, affection and attention defined a “real” parent.

  So what is parenthood for? If it’s for offering a child sturdy and stable affection, two people of one sex will serve.

  Why Have Kids?

  Adoption was in many ways the flip side of contraception: if you can choose not to have a child when you don’t want one, shouldn’t you be able to choose to have one when you do? As the 1930s saw its wave of writing about, to quote one famous book title, The Marriage Crisis, everyone agreed that “the family, long supposed to be the best anchored of all social institutions, appears at last to have broken from its moorings.” While publications, pundits, preachers, and politicians shouted at each other about whether this was good or bad and what it meant for the future, everyone agreed on at least two culprits: woman’s emancipation and contraception had overturned all the rules.

  The critics had things backwards, just as they do now. Because the economic rules had changed, both women and men felt they should be able to learn and work according to their inclinations, and felt equally free to enjoy their sex lives, try to control their childbearing, and create families as desired. And that meant, strikingly, a new rhetoric about childrearing. Affection replaced duty at both ends of the bond: just as children were with parents not to obey but to be loved, so also parents were to have children not out of duty but love. The Roman law that penalized men who hadn’t married and made a minimum number of babies by age thirty; the Jewish rabbis who debated the minimum number of children required to fulfill the biblical injunction to “be fruitful and multiply”; Puritan childrearing tracts enjoining fathers to oversee their children’s catechisms: all were full of the same childrearing ideal that it is a man’s duty to rear children to be good members of society. Affection had formerly been not a requirement but a bonus. As late as 1926 one Atlantic Monthly writer was insisting on the traditional idea that limiting the number of children in your family was “distinctly antisocial, for it enables selfish people to escape their responsibility, ultimately to their own detriment and to the injury of the State.”

  But soon parenthood was urged almost entirely for the emotional rewards, sometimes in language that sounds like the worst 1970s personal development goo. “A little child is a strongly-uniti
ng bond between husband and wife,” sentimentalized one London minister in 1899. A 1925 writer, Paul Popenoe, launched into the psychological age with the biggest rhetorical rockets he could find: “From their offspring the parents derive tremendous advantages that they can get in no other way. Man’s personality and character (as well as woman’s) is an incomplete—hopelessly and pathetically incomplete—thing unless it has included the joys, and the occasional sorrows, of bringing up a family of children.”

  Parenthood is, of course, an astonishing (and exhausting) thing. But what’s more astonishing is that parenthood was being sold by these inner benefits—as a chosen personal experience, not as an inevitable responsibility. As society headed for the twentieth century’s end, that rhetoric almost entirely swept the field. The idea that children—like marriage—are a choice, not an inevitable necessity, showed up in book titles like this 1981 volume: The Baby Decision: How to Make the Most Important Choice of Your Life. “Which way happiness?” one chapter of The Baby Decision asked. “For some couples, children are a necessary ingredient; for others, they would simply spoil the broth.” The ideas behind the invention of adoption, behind The Baby Decision, and behind all assisted conception services were precisely the same ideas that led to 1985’s Considering Parenthood: A Workbook for Lesbians—and the lesbian (and, later, gay) baby boom to which that book responded. If the purpose of parenthood is the parent’s emotional development—if parenthood is a once-in-a-lifetime chance to revisit childhood playfulness, to love more than you knew was possible, to mature through heartwrenching challenges and joys—why shouldn’t people have children the way they get married: for love alone? And why should biology stand in the way?

  The philosophy behind today’s new reproductive technologies—donor insemination, in vitro fertilization, egg donation, and more—are in many ways the philosophies behind both contraception and adoption. To choose to have a child because you want family love is a dramatic shift from the older assumption that a child is both your sexual fate and potentially remunerative labor. The transition to our current era—in which most middle-class folks know at least one family where the new reproductive technologies have helped bring the children to life—did not occur easily. Our society’s ethical and legal anxieties today circle around complicated possibilities like surrogacy, or fertilization with borrowed eggs and sperm, a kind of pre-birth adoption, so that the child has a womb-mother, a genetic mother, a genetic father, and a social father—only two of whom register publicly as parents. But even the simplest of these technologies—donor insemination (DI), borrowing sperm—stirred a ruckus when it was first publicly proposed for married couples.

  The question of whether DI was legitimate or not got to court because of the basic question that comes up in every age about children: who has the right and responsibility for a child’s care? When divorcing men insisted that they weren’t their DI children’s fathers, judges at first agreed that the wife had done something outrageous in conceiving another man’s child. “The essence of adultery,” wrote one Ontario judge in 1921, “consists, not in the moral turpitude of the act of sexual intercourse, but. . . . introducing into the family of the husband a false strain of blood.” A 1954 Illinois court agreed, saying that DI “is contrary to public policy and good morals” and that DI children were “illegitimate.” Some Catholic theologians wanted to outlaw DI, even proposing jailing DI moms and the doctors who were inseminating them. After all, some guy was out there masturbating, and some other couple was having fruitless sex, and babies were being begotten by strangers: the world had wandered awfully far from “natural law.”

  But just as Catholicism lost on contraception—keeping its ability to shake its fingers at its own followers, but losing the ability to write its theology into law—so it lost on assisted conception. After many years of debate, Western policymaking bodies finally concluded that DI was not, in fact, adultery—so long as the husband agreed to what his wife was doing. Society’s key concern had always been: who’s gonna pay for that child? Wrote one 1968 California court, “One who consents to the production of a child . . . [has] an obligation of supporting those for whose existence he is directly responsible.” How, in other words, is this case different from any other guy who made a baby and then tried to skip town? Once a man agreed to be a dad—whether by having sex with a woman or by signing papers at the fertility clinic—he’d brought a child into the world and had to face up to it until the kid was an adult. You wanted it? Well, now it’s yours.

  Why should the reasoning be any different if the second parent is a woman? According to the most recent statistics, one in eight heterosexual married couples is infertile; of those who pursue biological children anyway, most use donor insemination, as do parent-hopefuls who are both women. Arranging our reproductive and emotional lives by choice, whether through the Pill or petri dishes, donor insemination or cross-continental adoption, is now a social norm. Once feelings—the desire to parent—have been crowned as monarch of both marriage and family, the stage is set for lesbian and gay families. How can the hearts of two loving but infertile parent-hopefuls—even those infertile because they share the same sex—be refused?

  Item: Recently a woman in Oregon was running for state representative, accompanied by her pregnant partner. The couple was approached by a man in a conservative rural district. Pointing to the partner’s swelling belly, he asked the candidate, “Are you responsible for that?” “Yes,” she answered, steeling herself for his invective. “Then I’m voting for you,” said the farmer. “If you can do that, you can do anything.” The joke, of course, is how dryly he suggested the candidate had balls if she was willing to take on the world as a lesbian “dad.”

  Should Lesbians and Gay Men Be Parents?

  It’s one thing to suggest that a lesbian or gay male couple want children for the same reasons any of their contemporaries do—or even to suggest that a pair of same-sex parents fit the egalitarian, loving ideals by which we run contemporary (as opposed to, say, colonial mini-factory) families. But that’s not necessarily reason enough for society to endorse us as parents. To many people, marriage is essentially a license to raise a family (albeit a license for which no one has to pass a test). Since the well-being of children is rightly of serious concern to any sensible society, the argument of last resort against same-sex marriage is often that kids need a mom and a dad.

  In the cases pending in Hawaii and Vermont, one of the states’ key arguments is that same-sex marriage would be bad for children. When the Scandinavian countries, the Netherlands, and most recently Catalonia opened civil registration to same-sex couples, they offered all the benefits of marriage but two: first, no church service, and second, no right to adopt or use assisted fertility services. And yet the Netherlands, Canada, and several Scandinavian countries are now opening parenthood to same-sex couples, while several American states—including Vermont—allow two parents of one sex to jointly adopt. Are they right to do so? To use the phrase that nineteenth-century American courts invented to fit their new Victorian families, can having two parents of one sex possibly promote “the best interests of the child”? That larger question breaks down into a series of smaller, complex questions—most of which are clues to social attitudes not about same-sex parents, but about something else entirely.

  Don’t children need fathers? This is an incredibly hot social question—and when phrased like that, tremendously threatening. The viciousness of the battle over whether Heather should have two mommies is often a proxy for deeper cultural battles about men, women, and parenting. Does society really want to suggest to men that once they’ve spawned, they’re vestigial as an appendix and may return to their wild bachelor lives (preferably, of course, remitting a monthly check)? If parents break up, should the mother automatically get custody, or do children require the involvement of both parents even when those parents are no longer married?

  Usually—and rightly—the debate and data about whether kids need fathers centers on the un
nerving trend of men abandoning their offspring, which has so clearly been shown to be destructive for many kids. For instance, children of divorce, when compared to children in undisrupted families, drop out of high school twice as often and have three times as many teenage pregnancies, two gross measures of misery that suggest many more subtle problems. I’ll confess here to my bias: my siblings and I were so thrown by the deterioration and breakup of our parents’ marriage that even today, whenever friends with kids tell me they’re divorcing, I launch like the Ancient Mariner into an obnoxious lecture about protecting their children. But my bias may not entirely be accurate; researchers find that half of the “divorce effect” is actually not an effect of the divorce but of a bad marriage: if you look back through school records, boys’ bad behavior and lousy math and reading scores come well before the parents split—which suggests that it’s the bad marriage, as much as the divorce, that damages kids.

  Since most Western children in the late twentieth century are left in the custody of their mothers, many commentators turn to post-divorce stats, and to stories like mine, to insist that children need their bio-fathers and bio-mothers. But asking how kids do after a divorce is not the same as asking whether kids need to grow up with parents of two sexes. When looking at the effects of divorce, how can you tell which of them have to do with abandonment, disruption, anger, and a sudden drop in income—most of which usually accompany divorce, at least temporarily? Kids of divorce have to live with parents who are furious at each other, whether out loud or silently. They may feel abandoned by a father who rarely calls (or with whom they have an awkward weekend relationship, which somehow upsets their mother). They may live in chaos for awhile, grabbing meals out of the fridge and searching fruitlessly for clean underwear, while their custodial parent succumbs to grief, or stays out dancing all night to prove she’s still attractive, or tries to figure out how to work and get the kids to dentists’ appointments. And they almost always live with a heightened and corrosive anxiety about who will pay for heat, orange juice, car repairs, and new shoes. Measuring the effects of a divorce, in other words, does not measure the effects of living without a father: it measures the effect of conflict, disruption, and loss. In fact, if what harmed kids was simply the loss of their biological father, then widows’ children would do much worse than children of divorce—since someone under six feet of dirt is more definitively gone than someone who’s moved to another address. But widows’ children do vastly better, with, for instance, no more likelihood of dropping out of high school. Divorce stats, in other words, may tell us that having one parent ripped out of your life hurts (surprise!)—but they can’t help us decide whether or not children need to start with both a male and a female parent.