States are quietly redefining the family

When people talk about the redefinition of the family, they’re usually referring to major, historic shifts like the Supreme Court’s redefinition of marriage in 2015, or the domino effect of no-fault divorce that began in California in 1969. And while they’re certainly right that these changes are catastrophic, quieter but equally insidious shifts have been taking place across the states—sometimes without so much as garnering a headline. Subtle changes in state laws on parentage, assisted reproduction, and marriage have been redefining the family and undermining children’s rights to their own mother and father for decades.

Them Before Us recently scored all 50 states and the District of Columbia on how well they do (or do not) protect children’s rights in the family. The results reveal shifts in state laws going back decades that put adult ideologies and agendas ahead of child well-being.

When a city endorses polyamorous marriages, it makes national headlines. But when an 80-page bill containing two lines allowing courts to decide that a child has three or more parents is signed into state law, people rarely notice. Ten states have now implemented laws doing just that. So-called “polyparenting” obscures the parent-child bond by adding a third, fourth, or even fifth adult and exposes children to the risks of having a revolving door of unrelated adults in and out of their homes.

An equally dangerous, novel category of parentage that has now been embraced by 28 states is “intent-based” parentage, typically seen in the context of assisted reproduction, which allows a legal parent-child relationship to be established without any biological relationship and without going through the child-protective vetting process required for adoption. These changes are dangerous for children, but we rarely hear about them until after a child has paid the price for terrible policy.

Sometimes it’s the absence of laws that creates dangers for children. The “wild, wild west” of assisted reproductive technology in the United States is a perfect example of this. Last summer, two surrogacy scandals rocked the news cycle within weeks of each other. First, a hotel-like mansion in Arcadia, Calif., gained attention for housing 21 surrogate-born children who, according to police reports, showed signs of abuse and neglect. The commissioning couple could prove legal parentage over each of them. Reports emerged that the two had been running their own surrogacy agency with themselves as the only customers, commissioning nearly two dozen babies close in age, and leaving the young children to be raised by nannies who engaged in harsh and abusive treatment.

Just weeks later, a viral tweet led to the identification of a registered sex offender in Pennsylvania who had used surrogacy to obtain a child, despite the fact that his crimes made him legally ineligible to adopt or even spend unsupervised time with a minor.

Surrogacy operates in a legal grey area in most states, without laws banning or explicitly allowing the practice. Those states that do have laws are highly permissive. While background checks, or at the very least a mental health screening, are often required for surrogate mothers, Virginia is the only state to require any sort of vetting for commissioning parents. Children born via surrogacy are almost never afforded the same protections as their adopted peers. Instead, they are exposed to the risks of unknown commissioning parents, an unaccountable industry, and the monetization of their birth.

The same is true for donor conception. Despite the fact that the majority of donor-conceived children will be raised in a home with at least one biologically unrelated adult—an arrangement that comes with a 50-fold increase in a child’s risk of fatal maltreatment—vetting, background checks, and home studies are not required. Additionally, states have quietly adopted artificial insemination statutes that prevent the birth certificates of donor-conceived children from reflecting their true parentage—costing them access to important medical history and making it harder to identify half-siblings living in close proximity.

Finally, marriage laws have long placed the preferences of adults over the needs of children, beginning with the establishment of no-fault divorce. Some states have gone even further and made it impossible to divorce on fault-based grounds—treating “falling out of love” as no different than abuse or marital infidelity. Post-Obergefell, 12 states have rewritten their marriage laws so that marriage is no longer between one man and one woman but a gender-neutral contract. Like the shifting language around “parentage,” these changes to marriage laws have been framed as mere “updates.” In reality, they are a clear message that the state no longer recognizes the one union that guarantees a child’s right to his or her own mother and father.

State “updates” to family law, both before and after Obergefell, are not only disregarding the best interests of children but have even put them directly in harm’s way. This isn’t a status quo we should accept. The good news is that we don’t have to accept this. We can do more than simply wring our hands at a vague concern about the destruction of the family. We need to confront every bad law and defend every good law, and I’d like to invite you to find out ways that your state can strengthen protections for children.