Professor Nancy Dowd

PHILADELPHIA (WOMENSENEWS)–Family law used to be limited to divorce, custody and adoption issues, but at a recent conference here, lawyers wrestled with a new slate of domestic conundrums born of dramatic technological developments and social shifts.

Gay unions and marriage, surrogate parenthood and fast-moving reproductive technology have presented family lawyers with heavy caseloads but few precedents to guide them and, according to some lawyers, an ill-prepared judiciary.

“How the law constructs what family is often is at odds with what we see,” said Nancy Dowd, a law professor at the University of Florida. “The law is usually behind” when it comes to the day-to-day realities and unfolding social trends.

Dowd addressed last weekend’s family law symposium at the University of Pennsylvania Law School. U.S. Supreme Court Justice Sandra Day O’Connor also delivered a speech, which was not open to media coverage. The symposium was sponsored by the Pennsylvania Bar Institute as part of its continuing education program.

The legal system still works from the traditional, hidebound family model of man, woman and children, while American households increasingly have different structures and compositions, Dowd said.

Look at Strengths in Single Parenthood, Not Just Problems

For example, nearly one-third of all American families have a single parent. Dowd noted that 40 percent of women “can expect to be single parents for some period of their lives.” For African-American families, the single parent rate is nearly 60 percent.

“Many of these families have affirmative qualities,” said Dowd. “When they function well, we should be asking what it is that they do differently?” But, Dowd said the legal system tends to regard single parenthood as a problem requiring correction. She called for “a model of support or, at minimum, a model of tolerance,” adding that the law should “support children in the families that they have.”

Dowd said the stigma attached to single-parent families is assigned to the adults but do the most damage to children. Dowd is the author of “In Defense of Single-Parent Families,” which notes that many one-parent households run smoothly based on division of labor, a cooperative work ethic and heightened appreciation for the custodial parent.

That includes the children of gay and lesbian couples, said Nancy Polikoff who teaches law at American University in Washington, D.C. Although Polikoff cheered advances in the legal status of homosexuals, she said the nation’s laws are woefully lacking in fairness to gays. “It would be a mistake to think that those days gone by were the Dark Ages, while today we have arrived at a more enlightened moment,” she said.

Polikoff decried the recent spate of state laws and initiatives banning gay marriage, adoption by gays and the extension of benefits, like health care coverage, to gay partners. Legal cases involving these issues confound the courts since they often entail advanced reproductive science–sperm or egg donation, in-vitro fertilization and other techniques that complicate custody cases.

One View: Traditional Marriage No Guarantee of Better Kids Than Gay Unions

Marla Isaacs, a psychologist at the University of Pennsylvania, told the conferees that courts often ignore psychological factors involved in domestic cases for want of a single standard. “They’re searching for a legal basis for making decisions that affect people’s lives in the most dramatic ways,” said Isaacs. “Americans really like to think everyone belongs in a category.”

While Polikoff said she is encouraged that more mainstream law firms are taking gay rights cases, she expressed disappointment that laws continue to intrude upon the privacy of homosexual households by challenging their fitness as parents through an array of restrictive social policy, practices and laws.

“I think we should be as concerned about heterosexual parents who raise children who turn out to be tortured adults,” she said.

But a Utah law professor insisted the law and courts should champion the traditional family, calling it “the child-rearing ideal.” Lynn Dennis Wardle of Brigham Young University praised his state for passing a law that forbids adoption by non-married couples–a de facto ban on gay adoptions since homosexual marriage is not allowed in Utah.

“It is in the best interest of all children to be raised by a mother and father who love them and each other,” said Wardle. “The child-rearing ideal should be maintained because children matter and because our vision matters.”

Not so, argued philosophy professor Linda Hirshman of Brandeis University. She assailed as discrimination against women Wardle’s elevation of the nuclear family as the best prescription for everyone, and his assertion that marriage is “the seed-bed of democracy.” Hirshman also took issue with Wardle for criticizing mothers who work outside the home and claiming that they warehouse their children in day care centers for the sake of their careers and personal interests.

“Radical” Idea: That Women Are as Important as Children

“If Wardle is right about the dreaded day care centers,” Hirshman said, “then, when women win, children lose.” In a session titled “Vision of the Future,” she called for new social policy whereby “women will say that they matter as much as children do”–a notion Hirshman described as “radical.”

Hirshman would also remove marriage as the linchpin of family life. Instead, she said, a more enlightened domestic law would focus on care taking as the most important cog in the family wheel. Hirshman argued that all social services and the law’s protections would be aimed at the member who cares for the family’s young, old and disabled.

U.S. Rep. Chaka Fattah (D-Pa.) told the group that improving family life should be a priority of the new 107th Congress, with education and health care reform topping the agenda.

“I believe that it’s time for the federal government to set some standards,” Fattah told the lawyers, “to step in and be a referee on behalf of families and children.”

Fattah said that years of small advances have been helpful, but American families are eager for major changes. “We can either be put through changes or direct the changes,” the Congressman said. One thing Fattah would do is turn public school buildings into veritable community social services, recreation, civic activities and continuing education centers after regular school hours–a kind of one-stop shopping mall for the family.

“We should center our interaction with families where the families are,” Fattah said.

Deborah Mathis is a Shorenstein Fellow at Harvard, a syndicated columnist and a former White House correspondent for Gannett News Service in Washington.