Surgical abortions have slowed, but pills and chemicals are reaching more homes—and killing more babies
One hot August day in 1902, a farmer was walking beside the Iron Mountain Railroad in Washington County, Mo. He paused when he heard the #4 approaching Big River Bridge, and when the clatter and rumble of the train had passed, he heard a weak wailing from the river. Climbing down to the bank, he noticed a “telescoping valise,” a kind of long squared suitcase, washed up in the shallows. The sound was coming from inside. It turned out to be a baby boy, about 5 days old, bruised and dented from his 50-foot fall off the train, but not seriously injured.
The farmer took this unique baggage home, and in time he and his wife legally adopted the boy they had named “Moses.” William Moses Helms, who never outgrew his notoriety as the “Iron Mountain Baby,” went on to live a productive life that owed its beginnings to a Providential interception, an assumption of his value, and a simple, straightforward adoption process.
Imagine the story updated, with a newborn left in the dumpster behind an office building after hours. The janitor finds her and takes her home. A court appoints him and his wife guardians, pending the appearance of lost relatives. Four years pass, and the couple have begun formal adoption procedures when the child’s father makes a sudden appearance, having learned about the baby long after the fact. DNA testing confirms his paternity. He wants his daughter, but the little girl has naturally bonded with her adoptive parents. To make the situation more emotionally charged, the father is black and the foster parents are Hispanic. Who gets the child?
With the rise of cohabitation, same-sex parents, and declining legitimacy, things get complicated.
The law formally defines “quasi”-parent as “a person not a legal parent who nonetheless has greater rights in a contest with the legal parent than does any other party.” That would include grandparents who care for the child of a wayward daughter, a husband who forms an attachment to the children of his wife’s previous relationship, a foster parent, or any combination of extended family. Quasi-parenting, and the need for it, has always existed. For example, a friend of mine, now 88, was adopted out of a large family by her childless aunt and uncle, who raised her as their own even though everyone knew their biological relationship.
With the rise of cohabitation, same-sex parents, and declining legitimacy, things get complicated, to a point where state courts are increasingly in the family-planning business. The Supreme Court has ruled on a quasi-parent situation only once, in Troxel v. Granville, where it confirmed the right of a widow to limit the time her children spent with their paternal grandparents. The legal parent’s right to make such decisions was “fundamental,” ruled the court, but the justices failed to set standards for application. As a result, lower courts have cited Troxel to come to opposite conclusions.
Historically, Supreme Court cases involving parental rights tend to favor the parent—a good thing generally, but not always. Especially when the rights of a biological mom or dad clash with the best interests of the child. Rights are fundamental; “best interests” less so.
The problem, according to some legal experts, is that courts favor the “nuclear family” model that Americans are rejecting. Only about 59 percent of children live with both of their biological married parents. The others grow up in single-parent, stepparent, foster parent, or extended-family households. Among low-income African-Americans, “informal adoption” sometimes fills a gap. In Hispanic communities, extended family plays a much larger role in child-rearing. Many same-sex couples long to adopt children. Shouldn’t judges be more open to alternative family models?
Sometimes, yes. But a deep inconsistency lies at the heart of family law ever since the Supreme Court ruled that the right to abortion was also “fundamental.” Before, humans in the womb were understood to have rights; after, they only had best interests that could be trumped by adult interests even after birth. That decision, in essence, threw the baby off the train. As long as it stands, family law will remain muddled and inconclusive.