PSU Magazine Summer 1989

suggested that a better question might be "Who shal l have custody of the child?" Likewise, Margaret K. Rosenheim, an attorney and a professor of social welfa re policy at the University of Chicago, sug– gested that the real question is "Who con– trols the child and to what end?" For Rosenheim , whose experience is largely with the adolescent and the juvenile justice system, the central issue is how to achieve a balance in the interests and influence of the three main pl ayers: the child , the parent and the state. For Houlgate, the fascination lies in how soc ie– ty solves such ethical dilemmas as what defines good child-rearing and who should ensure that those minimum standards are being met. Of particular interest to Houlgate, who has pondered and written on the renowned Baby M surrogacy case, are recent con– troversies about custody of the newborn . "There used to be no question that the natural parents should be the custodians of their newborn infant ," he said . This posi– tion has been clouded by technological ad– vances such as artificial insemination and test- tube conception. Surrogacy contracts add a new legal dimension. Baby M was conceived when her biological mother, Mary Beth Whitehead , agreed to be artificially in– seminated with the sperm of William Stern and to carry the baby to term , in return fo r the sum of $10,000. The fi rst Baby M decision favo red the natural father and his wife but it was overturned in the New Jersey Superior Court , which declared the surrogacy contract illegal and restored parental rights to Whitehead , the "gesta– tional" mother. This "gestational preference principle" is common in family law and custody disputes, said Houlgate, but so is the prin– ciple by which the fi rst judge ruled - "in the best interest of the child." Tradition equates the welfare of the child with the preservation of the biological relationship, but Houlgate wonders if this equation is still legal ly and moral ly valid in an age of contracts and technology. "We need to play catch- up on some of these issues," said Rosenheim . "Techno– logical innovation has expanded so unbelievably that one is almost tempted to think it has outrun ethical and policy con– siderations." G iven the gestational mother's ap– parent rights, does she also have certain responsibilities to the developing fetus? This question particularly interested the symposium audience, many of whom were soc ial service practitioners. Houlgate maintained that a fetus is not recognized by law as a child with rights. "You can't sue on behalf of a fetus," he said . Rosenheim countered by citing the re– cent successful prosecution fo r involuntary manslaughter of a woman whose baby's death was linked to her abuse of cocaine during pregnancy. "There's been a tendency to blame the parent ," said Rosenheim . Moral neglect might, in fact, be the modern American parent's greatest failing, suggested Houlgate. State involvement in family matters seems to be increasing where the younger child is concerned , noted Rosenheim, while there has been a " retrenchment of legal authority and a considerable cutback in resources" in the sphere of the older child . Whenever the state does become in– volved, Houlgate said, it ought to have a clear ide_a of "what sort of minimum behavior it's going to expect of parents and guardians. But in order to do this, there has to be an ethical concept of what good child- rearing practices are supposed to be.." Child abuse statutes reflect the general societal consensus that children should not be physically or sexually abused and that their basic physical needs should be met, said Houlgate. But what about the gray areas of psychological abuse, educational or medical neglect, and non-conforming lifestyles of the parents? When is the potential harm of state intervention greater than the risks associated with lapses in good child- rearing? Houlgate bemoaned the lack of a na– tional fam ily policy that might guide parents and the state in making decisions about children. But he hurried to fill the gap. "Consider the following national policy," he said. "Every American child shall be reared in such a way that she or he shall have an equal opportunity to achieve the best li fe that he or she is capable of achiev ing, and to learn those moral principles... that are essential to becoming a member of a community." Moral neglect might , in fact, be the modern American parent's greatest failing, suggested Houlgate. After the brutal attack of a jogger in Central Poark by a pack of teenage boys, one of whom said he did it "for fun ," New York Governor Mario Cuomo referred to " the terrible possibility that we have by our failures produced young people who have learned to disdain simple principles of right conduct, prin– ciples so basic to our good order that we never contemplated their being rejected." Houlgate added , " If you couple this with recent statistics about the number of children who are being raised in poverty by teenage single mothers addicted to drugs, completely incapable of acting as custod ians of their own children, then you've got a real national crisis." interestingly, the philosopher and the lawyer had come to the symposium with the same key to unlock the ethical closet that children, families and the state fi nd themselves in . That key is the concept of community. "We might call the principles of 'right conduct' the principles of community," said Houlgate, "the principles of social cooperation that make community possi– ble." Rosenheim fo llowed up by asking, "How do we legislate principles of com– munity? It's a tough challenge to achieve a reuniting of a fabric of responsibility, of moral strength , of caring for one another in a society" as diverse, mobile and economically torn as ours. And yet this is just what we have to do, said Houlgate. "These are questions for the legislator, not the judge. 'Legis– lator' in a democracy means you and me. We have to settle these questions." 0 (Portland writer and photographer Cynthia D. Stowell has been a regular contributor to PSU Magazine.) PSU 17