Carolyn McLeod is Professor of Philosophy and Affiliate Member of Women’s Studies and Feminist Research at Western University in London, Ontario, Canada. She researches mainly in applied ethics (especially reproductive ethics), feminist philosophy, and moral psychology. Her current work includes a monograph on conscientious refusals in reproductive health care (under contract with OUP), an interdisciplinary project called “Paying for Parenthood” about government funding for assisted reproduction and adoption, and research on parental licensing. She has recently published Family-Making: Contemporary Ethical Challenges (OUP 2014) with Françoise Baylis, and a series of papers about parental licensing and adoption with Andrew Botterell. An adoptive parent (with Botterell) of two beautiful boys, Carolyn also does advocacy work on adoption and chairs the Board of Ontario’s Adoptive Parents Association.

Discriminatory Biases in Parental Licensing

Carolyn McLeod

Philosophers who write about parental licensing ask whether we should license parents, the way we license drivers and professionals such as physicians. But this question is the wrong one to ask. At the very least, it’s misleading. For we already license some parents, namely adoptive and foster parents. So philosophers should be asking instead whether our current practice of parental licensing is justified. My work on parental licensing with Andrew Botterell centres on this question. Right now, we are consumed with how to construct a system of licensing that is an improvement on our current system in that it minimizes the effects of discriminatory biases on who is subject to parental licensing and who succeeds in getting a license.

Some background is in order before explaining what Andrew and I are up to and also how discriminatory biases are a problem with parental licensing. Such licensing is similar in many respects to other types of licensing. Like them, it involves restrictions imposed by the state on people’s ability to perform an activity—in this case, parenting—even though they may never have performed it badly. The state requires them to show they are competent before being permitted to engage, or continue engaging, in the activity. Moreover, the purpose is to decrease potential future harm (i.e., to children). Thus, the licensing focuses on whether applicants will continue to meet a certain standard of performance, not simply whether they currently do so (i.e., whether they will treat their children well or will at least not mistreat them; LaFollette 1981, 181).

But parental licensing is also different from other types of licensing. For example, since it often occurs before one has had the opportunity to parent a child, it often predicts future performance in parenting based not on present performance, but rather on whether one possesses certain capabilities, such as emotional or financial capabilities, that show (or are meant to show) that one will parent at the desired level in the future. With many other forms of licensing, by contrast, applicants must actually perform the relevant activity at the desired level before getting a license. For example, one has to drive a car well for an assessor before obtaining a driver’s license, or have given competent patient care during a residency before being licensed to practice a particular form of medicine. The fact that parental licensing typically involves only an assessment of capabilities deemed to be relevant to the performance of the licensed activity (parenting) may not make it unique compared to all forms of licensing. All the same, this aspect is important and explains some of the controversy surrounding parental licensing.

As I’ve indicated, in many jurisdictions, adoptive and foster parents are now licensed. Though they tend not to receive an actual license to parent, similar to a driver’s license, what they undergo is still properly called ‘parental licensing.’ They are prevented from parenting a child unless or until they complete (among other things) a home study, which involves criminal background checks together with assessments of one’s financial situation, physical and mental health, home, neighbourhood, family history, and so on. If prospective adoptive or foster parents have parented a child before, then an evaluation of their success at doing so will be part of the home study, although of course many of them, particularly adoption applicants, have never had this experience.

The status quo on parenting licensing is that licensing is required for foster care and adoption—more specifically, for family-member adoptions (e.g., stepparent adoptions)—but not for (assisted or unassisted) reproduction. It is safe to assume that the status quo privileges biological connections to the child who will be parented. If one is biologically related to the child or is the spouse of someone who is biologically related to her (unless one is a same-sex spouse and lives in a jurisdiction where same-sex spouses do not count as family members for the purposes of adoption), then one will be spared the intrusion of a home study. One will be able to become a parent without anyone trying to ensure that one is competent to do so.

In previous work I have done with Andrew (referenced below), we aim to show that the status quo is morally unjustified. We focus on adoptive parents and canvass all of the possible reasons for licensing them but not people who become parents through assisted or unassisted reproduction. Our conclusion is that none of these reasons are good ones. In our view, the status quo discriminates against adoptive families as well as foster families. It reinforces what some call the “biological bias” or “biologism,” that is, the privileging of families formed through biological reproduction compared to families formed in other ways. We contend therefore that the status quo needs to change.

But we have yet to say how the status quo should change. In future work together, we will try to figure this out. Although our personal experience with adoption licensing has left us skeptical about the value of parental licensing, we doubt that just anyone should be able to adopt a child (or, for that matter, access fertility treatments, especially government funded ones) without having to undergo some kind of background check. All the same, we hesitate to recommend a particular system of licensing, largely for fear that it would be implemented in ways that are biased against minority groups, including (among others) the poor, LGBT people, and people with disabilities. This practical concern is a live one in adoption practice. Any adequate proposal in favour of parental licensing needs to take it seriously.

Proposals in philosophy generally fail to do so, however. For example, in his classic paper, “Licensing Parents,” where he argues that all parents should be licensed, Hugh Lafollette responds to objections about what he calls the “unintentional misuse” or “intentional abuse” by administrators of tests used to determine who would be an acceptable parent (1980, 192). He says “there is no reason to believe” that unconscious and conscious biases will be more of a problem in the administration of parental licensing than in other forms of licensing that we already accept (192). Yet I doubt that is true. For consider how many stereotypical images of minority groups target, directly or indirectly, their ability to be a good or decent parent (and how relatively few concern their ability to be, e.g., a decent driver). Examples include images of Black women as matriarchs or welfare moms (Hill Collins 2000), of gay men as pedophiles, of indigenous people as lazy or violent, and of people with disabilities as helpless and vulnerable. The result is that discriminatory bias is more of a worry with parental licensing.

Consider as well that the testing for a parental license is arguably more subjective than the testing is, say, for a driver’s license. Often, there is no test of present performance and so the evaluators do not get to see whether the person can parent at the desired level; rather, they have to make a judgment based on whether this person possesses capabilities that are thought to be relevant to good or decent parenting. Biases can enter at various stages: deciding which capabilities are relevant, at what level the applicant needs to possess them, and whether the applicant does indeed possess them at this level. Although testing for other types of licenses can certainly be biased too, we strongly suspect that there is less opportunity for bias with them than with parental licensing.

Overall, philosophers need to pay more attention to how discriminatory biases will affect who receives a parental license and who does not. In all likelihood, parental licensing carries the risk of promoting such biases. And while this risk may be worth the cost of not being proactive when it comes to child abuse and neglect, an argument needs to be made for this view. But so far no such argument exists in the philosophical literature. We hope to contribute one in the future. 

References

 

Botterell, A. and C. McLeod. Forthcoming. “Licensing Parents in International Contract Pregnancies,” Journal of Applied Philosophy. Published online August 2015, DOI: 10.1111/japp.12143.

 

—. 2015. “Can a Right to Reproduce Justify the Status Quo on Parental Licensing?” In Permissible Progeny. Ed. R. Vernon, S. Hannan, and S. Brennan. New York: Oxford University Press. pp. 184-207.

 

Hill Collins, P. 2000. “Mammies, Matriarchs, and Other Controlling Images.” In her Black Feminist Thought. New York, NY: Routledge. pp. 69-96.

 

LaFollette, H. 1981. “A Reply to Frisch,” Philosophy & Public Affairs 11(2), 181-183.

 

—. 1980. “Licensing Parents,” Philosophy & Public Affairs 9(2): 183-97.

 

McLeod, C. and A. Botterell. 2014. “’Not for the Faint of Heart’: Accessing the Status Quo on Adoption and Parental Licensing.” In Family-Making: Contemporary Ethical Challenges. Ed. F. Baylis and C. McLeod. Oxford, UK: Oxford University Press. pp. 151-167.