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This chapter investigates the common presuppositions we make about legal parenthood – for example, the assumption that biological parents are legal parents by default in most jurisdictions. Looking back at some of the ways in which legal rules of parenthood have shifted in recent history, I show that these rules are often more tightly knit with legal structures surrounding marriage and other kinship structures, than with biological parenthood, particularly for men. I examine the problems faced by unmarried fathers who either do not know they have biological offspring or discover this too late to claim legal parental rights. I also discuss the role of the principle of ‘the best interests of the child’ and the conflicts that arise when laws motivated by the best interests of children are broken for the sake of the best interests of a specific child. I then focus on the regulation of adoption and surrogacy in order to illustrate the fragility of distinctions between these practices, in which the difference between parenthood and a criminal offence sometimes hinges on a couple of pieces of paperwork.
In conceptually outlining the moral controversy surrounding the status of children and parents and briefly tracing the historical evolution of the legal status of children, this chapter provides a foundation for considering the numerous, more specific pediatric bioethical controversies discussed in this book. The chapter starts with a discussion of some common intuitions about families that find expression in our developed social norms. The tension reflected in competing moral understandings of the proper relationship between parents and their children bubbles to the surface in modern American law. Transparent recognition of the problems we face in socially constructing the optimal relationship between children and their parents nowadays disguises a historical tendency in American law to grant tremendous deference to parents in almost all family matters. Almost all pediatric bioethical controversies taken to the courtroom nowadays turn on an intractable disagreement about how best to understand the posited harm to the child.
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