In the March issue of Pediatrics, the publication of the American Academy of Pediatrics, an article called “Marriage and the well-being of children” appeared that considered the role of marriage in child outcomes. In a short statement, the authors dismissed the body of data on marriage and child outcomes as inconclusive. The authors went on to argue “even if empirical support for its claims was strong, the argument is morally insufficient for denying state recognition to other types of relationships.”
It is certainly noteworthy and ironic that an empirical research journal would dismiss the role of data in forming public policy and it raises some interesting questions about the use of empirical research in formulating law.
This tension between research and law is debated in a new book from New York University Press called What is Parenthood? While the primary focus of the book is the legal relevance of biology and gender in an age of modern families, the question about the use of empirical data in forming family law looms large.
The state is thoroughly entrenched in the business of declaring who is and isn’t a parent. In the years ahead, as the use of reproductive technology grows and family forms become more diverse, this will continue to become an important legal question. While a strong argument can be made that family law is preoccupied with the dissolution of families, many legal theorists see the law as a proactive agent in shaping the future of families. The principles on which these legal reforms are based are of central importance.
Two schools of parenting thought
The first significant challenge for the books’ editors Linda McClain, professor of law at Boston University School of Law and Daniel Cere, associate professor of religion, law, ethics and public policy at McGill University, is to frame the material into two perspectives. They present the Integrative Model of family that coalesces around biological reproduction and the social institution of marriage that binds parents to each other and to children. This model focuses on biological connection and sex difference, and champions the right of children to know their biological parents. Though there are diverse views within this model, proponents often engage empirical data on family structure to bolster their arguments.
On the other side of the spectrum is the Diversity Model that emphasizes family function over family form in embracing various family arrangements. Proponents here promote the right of children to experience healthy parenting over claims to biological connections. McClain writes, “[t]his model embraces family law’s gender revolution away from hierarchical, fixed gender roles for spouses and parents and toward equality as a basic norm. It de-emphasizes the significance of sex difference and gender complementarity and is skeptical of claims that every child needs a mother and a father for optimal development.”
While some proponents of this model engage empirical research to support their claims, the book presents several authors who support this model who deemphasize the role of empirical data when considering the legal aspects of parenthood.
Empirical research and theory derived from research is prescribed in three broad ways in What is Parenthood. First, research is used to speculate on why humans form the type of family groups we do, particularly from a biological perspective. Daniel Cere explores attachment theory and evolutionary kinship theory and reviews epigenetic research and biological anthropology to make the case for the importance of bonding among biologically linked individuals.
Second, empirical research is used to consider relational outcomes. Margaret Brinig of Notre Dame Law School argues for the legal recognition of the husband/wife and parent/child. She examines the behavioural data to observe how family life experience impacts relationship formation rather than evaluating cognitive outcomes such as IQ or education measures.
An essay penned by Judith Stacey of New York University presents observations from the Mosuo people of southwestern China who have formed a matrilineal culture. Unlike Brinig, Stacey theorizes about a broader vision of parenthood, though she rejects the use of empirical data in defining parenthood under the law.
Finally, empirical research is used to evaluate child development outcomes, including cognitive outcomes. Elizabeth Marquardt of the Institute for American Values touches on this in support of the integrative model as does Fiona Tasker of Birkbeck University of London writing in favor of the diversity model in her chapter on lesbian and gay parenting.
Does empirical research matter?
But the use of empirical research in this debate has its detractors. Some authors dismiss or downplay the data on family structure as inconclusive. Judith Stacey argues that both models presented in the book are rooted in other values and only supplemented by research. Susan Frelich Appleton of Washington University School of Law argues, “Even if empirical findings purport to show that the normative one-mother/one-father configuration serves most children well, such data do not justify enshrining this arrangement in a law applicable to all children.”
Frelich Appleton argues that family law has undertaken an “equality project” since the 1970s that serves as the main principle informing law. In her view, empirical data holds little relevance to law making.
Empirical data and resulting theories are often applied by those who support the integrative model to determine the best interest of children and in conversations about children’s rights. The late Don Browning of the University of Chicago argued that the best interest of the child has most frequently been interpreted as continuity of relationships during separations of marriages. In his essay he argued that this use is far too thin.
Others, like David Meyer of Tulane University Law School ask whether children’s rights have been used to block family diversification. He argues that children have diverse rights and often have competing interests not to mention that other players also have rights when forming families that should be considered. He argues that empirical research should be considered in concert with evolving social consensus and the circumstances of each family.
Cere concludes that with the depth and complexity of empirical evidence and resulting theories, those involved in scholarship and professional committees should adopt a posture of caution. He suggests that more research from various disciplines should be explored.
Certainly, it is true that there are limitations to what can be concluded from empirical data. Furthermore, there is still much we don’t know about the rapid changes in family formation. Yet research should be weighed and considered among other factors. Sometime data reveals uncomfortable findings, but adopting a cautious but committed approach to empirical data on child well-being and family formation will ultimately better inform family policy.
Peter Jon Mitchell is Senior Researcher at the Institute of Marriage and Family Canada. His article is reproduced with permission.