Files And Resources

In a Perfect World

An essay on what focusing on children, families, marriage and reproductive rights would do if enacted as a matter of public policy in the United States - and why we must focus on this in the coming months and years.

I often contemplate what we would have in this country if we paid attention to basic human rights, the concept of biological determination of roles and rules among the genders, and what children should have a right to expect.

That is, if I could throw out the rule book tomorrow and start with a blank page, what would be on that sheet?

First and foremost, we would recognize that the human species is unique among those on this planet, at least at our current level of understanding. We have a few characteristics that no other species has in combination:

The ability and desire to have sexual relations when fertility is impossible. Most species are either incapable of not interested in sexual intercourse when the female is infertile. There are exceptions, most particularly some species of primates.

The desire to have long, drawn out and intense sexual relations. This is unique to humans. Various primate species that "screw anything that walks" are both indiscriminate about their copulation and rather "quick" about it as well. Most interestingly, some of those species will spend hours combing through each other's hair (for mites and such) and yet spend just seconds "humping". So much for anything beyond blowing off sexual tension in these animals.

The unique ability to love. Not like - love. In fact, the Greeks had three different words for love, reflecting the different "kinds" of love (a differential we have lost in the English language).

The somewhat unique characteristic of human "exclusion" - that is, the method by which at an emotional level a bond between two lovers tends to intrude or impinge on that same emotional bond between either of the parties and a third person. This is why "polyamorous" relationships which are truly balanced (e.g.: there is no "primary" couple) are extremely rare throughout history and in the modern day, and those who attempt it often find that it is impossible to maintain them in a stable configuration.

Why, do you suppose, would our creator have designed things this way?

There can only be one explanation that makes sense: to bind together men and women in pairs, commonly called families, and to preserve the extension of that bond across generational lines.

But why would things be designed this way? What is it that makes this particular aspect of our human condition necessary?

There is only one rational explanation for this as well: This configuration of humans - into cells called families in which there is one man and one woman at the center, surrounded by the periphery of their families and offspring, is the most likely to succeed in bringing into the world a new generation which can take over from the old with aplomb and success.

And, in fact, that is precisely what history has shown us over the last one hundred years.

Once this is understood and accepted, everything else falls into place. The goal of any society should be to protect its succession - in fact, it must have this as a central goal, or the society in question risks ceasing to exist. A just society, in addition, seeks to infringe on as few rights and privileges as possible for all members in keeping with that primary mission.

When moral and ethical systems go into decline - when people start putting their own wants and desires ahead of the need to provide for a solid next generation - that society begins an inevitable downward spiral.

With these facts in mind we can design a social and legal system that defines gender roles, defines the role of parenthood, protects children, protects adults, and provides the maximum amount of self-determination and freedom consistent with the primary goal of turning out a new generation that is competent and able to take the reins from the old at the appropriate time.

The rest of our social policy with regards to men and women, marriage, and children is a logical extension of this basic principle.

Reproductive Rights and Responsibilities

Due to the legal status of abortion in this country, and the presence of a significant portion of the population that is opposed to abortion on moral or ethical grounds, reproductive rights are considerably more complicated than they would otherwise be. As such these rights must revolve around the declaration of belief regarding when human life vests in a fetus. This is necessary because there is no legal or moral congruence on the point at which killing an unborn child becomes the murder of a human.

We shall therefore define two positions which we label "Conception" and "Viability", for the two points that may be defined for when human life is believed to vest in a fetus, and at which point, therefore, abortion is unacceptable to that person.

We therefore arrive at the following matrix:

Male Female Time when Child Exists

Conception Conception At the point of fetal conception

Conception Viability At the point of fetal conception

Viability Conception At the point of fetal conception

Viability Viability At the point of fetal viability

Note that this matrix respects the most restrictive definition of fetal life; that is, if either party to a sexual encounter believes that life begins at conception, then abortion is considered unacceptable as a means of birth control.

The actual decision to have or not have an abortion, however, remains as it does today - solely with the woman who is carrying the pregnancy. A woman who terminates a pregnancy when the man has declared a conception stance, however, commits a tort against the man involved (for which he may recover by civil suit at law). To prevent liability for abortions where the mother's life may be in real danger, an affirmative defense to such a suit is that two medical doctors have certified that the mother was at least twice as likely to die from the pregnancy and/or childbirth, using all available technological means to prevent said death, as the mean statistical average risk of death from proceeding with the pregnancy.

We next turn to the issue of reproductive responsibility - that is, if a child shows up, who is responsible for its care, nurturing, feeding, education and welfare? Again, we look to the matrix for our answers:

A partner who has declared a definition of fetal life at Conception accepts full, joint and several responsibility for any child that is conceived. That is, any child that is conceived by the couple is declared to be wanted. Said partner has a legal right to 50% custody and 50% financial responsibility, and may discharge that responsibility as they see fit either in person or by proxy (i.e.: personal time spent with the child including provision of food, clothing, voluntary payment of child support, voluntary substitution of another person for that parent, etc.). If the partner fails to discharge that responsibility (e.g.: abandons the child) or is adjudicated unfit for that responsibility by a court (e.g.: is found to be abusive, drug dependent, etc.), then and only then is the state empowered to step in and enforce, using mandatory child support laws, the extraction of sufficient funds to pay a surrogate party to parent said child.

A partner who has declared a definition of fetal life at Viability must take a further, affirmative and positive step before joint and several responsibility attaches to that person. For a woman this step is obvious and clear - the failure to procure an abortion, which has been declared to be a viable procedure by this person, is that affirmative step. For a man a notarized document accepting paternity is required. This document may be individually produced for a particular pregnancy, or it may be produced ahead of time in expectation of pregnancy (e.g.: as a component of a marriage license or certificate.) Absent said affirmative and positive step, a person who has declared Viability as the test is not legally responsible for the production, rearing, or support of a child. The key here is that once parental responsibility has been declared for a specific fetus or child it may not be revoked, and the provisions of the above paragraph apply to that partner.

Once a partner has accepted responsibility for a given fetus or child (and thus become a parent) no proceeding may revoke that responsibility and the rights that come along with it except by a finding of manifest unfitness in a court proceeding. Valid grounds for such a finding, which break the parental bonds and render the parent bound to the responsibilities but bereft of the rights, include:

Proven abuse, defined as the infliction of physical or sexual trauma or abuse upon the child, the exposure of the child to a traumatic or immoral lifestyle, or the exposure of the child to unnecessary and serious medical or physical risk. The presence of controlled substances or their metabolites in the blood of a child at birth, or the presence of birth defects conclusively attributed to the abuse of any substance, legal or illegal (such as tobacco, alcohol, or prescription drugs) shall be deemed conclusive proof of said abuse and all children shall be tested for same at the time of their birth. Included in this definition is the infliction of trauma as a result of malicious or unjustified allegations of abuse which require investigation by medical personnel, with said abuse being chargeable against the parent making the false allegations.

Proven abandonment, defined as willful and intentional removal of the parent from the child's financial, emotional and/or personal life for a period of at least 90 consecutive days or more than 180 days within any four-year period without a documentable agreement between the parents for alternative temporary arrangements for that child's support and rearing.

Attempted or actual kidnapping (or "removal") of the child from the domicile or metropolitan area in which the child was born and being raised, where said removal is intended to or does continue for a period of more than 30 consecutive days without prior documentable agreement between the parties. Removal shall be conclusively indicated where either parent moves with the child without first informing the other, or where any said move creates a physical distance that makes it unreasonable for both parents to continue to share a full parental relationship with the child.

Proven neglect, defined as the willful failure to provide for the child's basic needs, including healthful food, reasonable shelter, reasonable and necessary medical care and reasonable and necessary supervision of the child's activity.

Any petition alleging these facts must be brought in juvenile court and is entitled to expedited hearing and procedure for the benefit of the child or children involved.

Upon a finding of parental misconduct or abandonment the rights of the parent so involved are to be permanently terminated and said parent is to be assessed child support at a level which will provide at least one half (50%) of each child's basic needs, plus an incremental amount equal to 10% of that parent's disposable income in excess of the poverty level for a single person, to be allocated across all children which have been begat by that person (whether subject of a support order or living with the person assessed.) Said awards shall terminate when the child reaches 18 years or is emancipated, which ever comes first, and shall be adjusted for the cost of living, changes in salary and the poverty level every four years or upon petition from either parent alleging a significant change in circumstance.

This structure protects both men and women in reproductive matters, and it further protects the children of such reproductive matters from interference and meddling by either parent, irrespective of their desire to marry, divorce, or otherwise change their lifestyle and its conditions.

Marriage, Families, and Children Within Them

Marriage is the sole province of one man and one woman, and needs to be ensconced in law in this regard. The reason for this should be clear from the previous narrative and the top-level discussion previously outlined - it is through marriage that family units are bound together, which has been proven time and time again to be the best and most-stable format for raising kids. This is the only legitimate use for marriage under the law, and the only basis under which differential policy regarding married and unmarried parties can be defended.

There are many people who wish to challenge this view of marriage. Chief among them are homosexual individuals who claim they have a "right" to marriage, and they have enjoyed limited success in the courts. An amendment to the US Constitution needs to be passed to prevent these erosions, and to define the central purpose of marriage in terms of children and raising the next generation.

It is interesting, however, that all of these challenges have been brought not from the standpoint of the bond that marriage cements between two people, but rather from the privileges - most of them economic - that people claim to "enjoy" as a consequence of being married. This pretty clearly documents how far astray from the true purpose of marriage we have come as a society!

Those who argue for the "right" for same-sex marriage are curiously silent on that same "right" for other nontraditional marriages. If the argument is that "any adults have a right to marry", then by that logic a woman may marry her son, a man his daughter, a man his son, a woman her daughter, three men may marry each other, six women may marry each other, etc. The clear abhorrent reaction that such a stance would evoke in society as a whole is why these folks never argue that point - but it is precisely the point that you must argue if you want to claim that marriage is a "fundamental right".

We do need to make serious changes to our current marriage format and structure. Today marriage is both too easy to contract and too easy to get out of. Towards this end the law must be defined to include the following:

Marriage is defined under the law as a contractual union between one man and one woman.

Before contracting marriage, each party must be made aware of and consent to be bound to that contract. They must, as part of their application for marriage, declare and define their stance not only on fetal life (as defined above) but also, in the event they declare for "Viability", their intention for children as either "accept parenthood of all children born" or "reserve parenthood".

Marriage is to be defined as existing for the explicit purpose of promulgating and protecting children and ensuring a healthy next generation.

Marriage, as a contract, must be enforceable. That is, while "no fault" divorce is permissible in the event both parties want to divorce, it is not permissible in the event that either party objects! A divorce sought over the objection of one party must be on the basis of grounds and fault.

Each couple contracting marriage must declare and define conduct that breaks the marriage contract and constitutes fault in areas where such conduct is contestable. The specific issue here that must be defined as a "standard" is marital fidelity (e.g.: adultery). The existence of abuse or substantial mental incapacity (e.g.: drug dependence) should be sufficient grounds for "fault-based" divorce in all cases, but other specific grounds may be included at the request of the couple and incorporated into their marriage filing. The state may provide a "standard" contract which it will accept, but must provide a means of determining prior to a marriage license being granted whether the terms of a custom agreement will be acceptable - and once accepted by that state, such an agreement must stand and be honored in its entirety. The provisions of this agreement may include property division, ownership of assets, both joint and non-joint, and for the custody and care of any children produced during that marriage.

In the event of fault-based dissolution of a marriage the handling of division of property and/or other damages shall be handled as with any other tort action, including the possibility of a finding that malice was the gist of the action (which would render any judgment non-dischargable under bankruptcy law).

In the event of a no-fault dissolution of marriage, unless otherwise provided for in the agreement filed with the license, all "marital energy", and the results thereof, are deemed community property and each party is entitled to a 50/50 distribution of same, with the proviso that any party that intentionally dissipates or expends that property for their sole benefit may have that portion of the marital estate assessed against them during the division of assets and liabilities.

To protect the rights of "nontraditional" couples (e.g.: homosexual couples) marriage as an institution shall be de-coupled from other matters under the law to the extent that such coupling applies only to the adults in the relationship. The IRS, for example, must remove the concept of "married" from its tax forms and tables. Employers and health insurance companies may not discriminate against or for someone based upon their marital status, and the offering of coverage of insurance may not be linked to one's marital status.

Since it is a desirable social policy goal to encourage responsible families and the production of children within those families, the offering of tax credits and other incentives only to persons with children inside an intact marriage, is permissible and should be encouraged.

That is, if there is to be a "dependency exemption" for children, said exemption should apply only to children being raised inside of a marriage, and denied to all other "alternative" arrangements (including single-parent households).

Adoptions and Legal Renunciations of Parenthood

Adoption, as currently defined, creates more problems than it solves. Remembering that the child has primary rights in these situations, the following changes with regards to adoptive law would be passed.

No parent may "adopt out" a child. That is, a child you create is irrevocably yours. Remember, you had your options available to you before the child came into place - you can't change your mind ex-post-facto!

A parent may, however, voluntarily relinquish guardianship for either a definite period of time or permanently. A permanent relinquishment of guardianship is irrevocable by the grantor, but may be revoked by the guardian who accepted it either through their voluntary action or involuntary circumstance (e.g. their death).

Guardianship agreements must be submitted to the juvenile court and certified acceptable. Once certified acceptable by the court full faith and credit must operate to prevent their challenge at a later date, absent later-proven lack of consent, false statement or fraud.

No parent may cause, through such a guardianship transfer, the rights of the child to the other parent in their life to be abridged or infringed. No guardianship application may be made without the written consent of the other parent, or certification that said parent is either deceased or unable to be found. Should such a statement be made falsely or the parent later resurface, said parent may void the guardianship agreement and take custody.

Biological parents have an absolute right of first refusal before any guardianship application, unless said parent has previously been found unfit. A parent seeking to grant guardianship status to a third party must first offer sole custody to the other parent if that parent can be located, and said parent has a continuing right to revoke a guardianship agreement and assume custody of the child or children involved if they have not consented to it prior to its filing with the court. The only means to prevent such a challenge is affirmative consent from the parent(s) to the guardianship agreement.

Children which have neither parent surviving may be placed for adoption, since the parental rights have been extinguished by death. Any arrangements made in the wills of the parents, however, must be honored unless it is found that such expressed desires are manifestly dangerous to the child's welfare.

Educational Requirements

All schools shall required to educate students, starting at an age predating the first appearance of puberty in the student population, of the provisions of these principles and rights. It would be a continuing requirement in education for each grade forward from that point, up to and including high school graduation, as non-elective subject matter. In order to graduate from High School all students would be required to demonstrate proficiency in and knowledge of these provisions and requirements by written exam.

It goes without saying that a person who is illiterate cannot pass this examination, and thus cannot graduate from High School.

Minor's and Parents Rights and Emancipation Events

A minor, by definition, is a citizen of the United States and as such is entitled to all protections under the law granted to any citizen with the exception that their exercise of those rights may not obligate their guardian(s) or parent(s).

As such, parents shall have the right to:

Appropriately discipline and restrict movement of their children. The boundaries between discipline and abuse shall be set by clear statute and published widely within the state.

Define the medical treatment options open to their children and be empowered to accept or reject any elective procedure, as the parents are the guarantors and obligors of any expense so incurred. This includes the use of abortion services and prescription birth control by minor children.

Determine the religious upbringing, if any, of their children.

Determine the method by which education shall be provided to their children, provided that such education may be required to meet minimum state and/or federal standards. Enrollment in state-provided public schools shall be conclusive evidence of meeting this requirement.

Parents shall also have the responsibility for their minor children from birth until emancipation, including financial responsible for any torts or other material harm their children may commit. Where the parents are biological or an adoptive married couple, said responsibility shall be joint and several.

Any child may petition the court to be declared emancipated, and upon acceptance of such a petition shall be granted the full rights and privileges of adulthood. Emancipation is a permanent act and cannot be revoked, and upon granting of such a petition all obligation of the parent(s) shall cease.

A petition for emancipation shall be granted if the court finds by clear and convincing evidence that the child is able to care for their his or her own affairs.

Any child may also petition the court to transfer guardianship from their present parents to other parents of their choosing by a joint proceeding of relinquishment and guardianship. The court shall grant such a request if it finds that the child in question is competent to make such a request, is at least 13 years of age, and the proposed guardian parent or parents are otherwise qualified under these social policies and code of law.

A child who voluntarily withdraws from school upon their own signature, is expelled as provided for under state law, or who is charged as an adult for any criminal offense may be involuntarily emancipated by their parents upon petition to the Juvenile Court. Conclusive evidence that the child has voluntarily assumed the responsibilities of an adult by terminating their education or committing an offense that leads to being charged as an adult shall operate as binding upon the Juvenile court as conclusive proof of said minor reaching adult status in such proceedings.

Procedures to Enact The Above Rights and Responsibilities

In order to promulgate the above it will be necessary for people to be able to register their reproductive stance vis-à-vis fetal viability or conception. This is a potentially abuse-ridden area, in that the ability to query a central database could be used for purposes that would be grossly in violation of individual civil rights.

As such the following statute would be enacted to present both a foolproof method of verification of a person's election, as well as a means to prevent reproductive fraud by any party in the United States:

A person's initial election of reproductive freedom status would be made by their parent(s) when their social security number is applied for.

Each person's social security card would contain the following notations:

Their reproductive election ("Viability" or "Conception")

When that election was last changed (the month and year)

A change in election would not take effect for one year after being made. That is, if you submitted a change of your elective status in January of 2000, it would take effect in January of 2001. This would prevent you from changing your election and having it take effect during a pregnancy.

Your current elective status would appear on your tax forms each year that are mailed to you, along with any pending change and the date of your last change, if any.

A person who has never elected a status would by default be assigned "Viability". This is a status that is consistent with the majority opinion in the United States today as well as that which is consistent with preserving the maximum of individual rights.

A minor may make their own election and override their parent's original selection, but the act of doing so shall be deemed an act of emancipation and parental rights and responsibilities shall terminate upon the acceptance of same. In order to make such an election as a minor said person shall have the burden of proof of their ability to be self-supporting, and upon grant of leave by the court they shall be given all the privileges and responsibilities of adulthood.

A person having sexual relations with another would be solely responsible for ascertaining (by request) the status of another person's election before engaging in that encounter.

The forgery or otherwise fraudulent misrepresentation of a person's status would be both a felony as a federal civil rights violation and a tort which would subject the person committing the misrepresentation to civil suit at law for both compensatory damages in the amount of any material harm (e.g.: child support) as well as punitive damages for their intentional misconduct.

General Provisions

As the raising of children, and their eventual contribution to society is inherently an interstate matter the laws dealing with these matters will all be adjudicated and construed by the Federal Government. No state may preempt any of the protections or responsibilities assigned under this legislation. While marriage and other actions related to same are inherently a state and county matter, the protections afforded individuals and couples shall be administered and overseen by the US Federal Government, and application for relief may be made to any US District Court for enforcement of the provisions herein.

Any party found to have intentionally infringed upon any of these rights and responsibilities shall be assessed the full cost of prosecution of a defense of these rights and responsibilities, including but not limited to legal fees and court costs.

Goals - Or, More Succinctly, "Why We Must Do This"

These proposals are radical, to be sure. They would upset over a hundred years of usurpation of the rights of both parents and children, would completely "undo" the work of a number of special-interest political groups, and would rock society.

But the intended result of these laws and policies would be clear.

For children, we would bring the following benefits to our society:

We would no longer bring into this world children that are wanted for any reason other than their existence. No longer could a child be used as a human shield or a pawn in an adult game of power and money.

Children who were born by "accident", but to someone who has a strong aversion to abortion, would be placed with one or two guardians. The ultimate responsibility for said child, however, would continue to rest with his or her biological parents. That child would have at least one person who loves them for themselves and is willing to voluntarily accept the rights and responsibilities of parenthood in all cases.

The perverse incentives of the last 30 years to bring kids into this world for the purpose of obtaining welfare in all of its forms would be destroyed.

The perverse incentives that give either party to a marriage a reason to divorce and attempt to pit the children against the other parent would be removed.

The multi-billion-dollar agencies that currently chase 'deadbeat parents' would be gone, since there would be few true deadbeats left - parents would be parents by choice, not by force. With the money we save, we can fund assistance programs for the truly needy kids (regardless of their family situations) in America. For every billion dollars spent currently on enforcement, we can give one million real children $1,000 worth of direct cash assistance in their lives. The Federal Government alone spends many billions on this issue - when the state government spending is included, the annual total is well over 10 billion dollars - or 10 million kids we could help instead. That thousand dollars is the difference between basic needs - food and clothing - and the lack thereof.

Children would finally have the right to a relationship with any biological parent who (1) has indicated a desire for it, and (2) has not been found manifestly unfit under due process of law. No other person - including the other parent - would have the ability or right to interfere. The sole exception would be for a parent proven to be unfit through abuse, abandonment or neglect, and in those cases that person's legal rights would be immediately severed - giving the child the maximum potential for continuity in the remainder of their childhood.

The percentage of children growing up in two-parent homes would rise dramatically, a scenario that all responsible sociologists accept as the optimal set of conditions under which to raise children.

For adults, we would also find substantial benefits as a society:

Adults of both genders would, for the first time in this country, enjoy reproductive rights and responsibilities that are equal and balanced.

It would become impossible for a person to commit reproductive fraud upon an adult. Each adult would be responsible for knowing the intentions of their partner for any potential children that may be produced, and those intentions would be legally enforceable in the event that a pregnancy occurred. It would no longer be necessary to be sterilized to be able to choose whether or not to be a parent.

No person of either gender would be forced to bear a child they did not want or to parent a child against their will. As a result the incidence of child abuse and neglect should drop precipitously, a benefit not only for adults but also for children in this country.

Persons with strong moral or ethical convictions about abortion, on either side of the debate, would find legal enforcement of their beliefs and options available to them. We would solve the "abortion debate" without having to outlaw abortion! For those who are morally opposed to the procedure, they would now have the ability to determine in advance whether or not they were in a relationship with someone who shared their views. Fraudulent misrepresentation on this point, or the willful destruction of a child under these conditions would carry the ability for redress by the aggrieved party. Likewise, for those who are strongly of the opinion that abortion is a viable option, they would be able to determine that their partner shared their view and could not infringe on their rights - before a potential child exists.

Marriage would for the first time be treated as a true contract. The parties to a marriage would expected to spell out what conditions would be a violation of the agreement and lead to liability and what would not. They would be expected to indicate their intentions for children, and be held to those statements as well. A married person who had their partner run off on them or commit adultery would be able to sue for damages - and all of the marital property - and get it.

No more "snatching of kids" - ala the "Baby T" case - would be possible. A parent ruled unfit would lose parental rights immediately and permanently. Their responsibilities would never terminate, but they could delegate those responsibilities to any other willing (and able) party, yet still be held accountable should that delegation fail. The standards of misconduct that would cause the loss of your parental rights would be clear, convincing, and without ambiguity in interpretation. Forewarned is forearmed; the woman who smokes crack cocaine during pregnancy is on notice that she will lose custody of her baby at birth - permanently - no ifs, ands or buts.

No more custody wars would be possible, with the horrifying dissipation of time and assets that they involve. The standards would be clear - and if you violate them then your parental rights are gone. No repatriation, no second chances, no ifs, ands, buts or maybes. Again, forewarned is forearmed. No "free passes". Its time that we started putting kids first and said that abuse in all of its forms is absolutely unacceptable, and that there are no conditions under which we will allow it as a society.

Isn't it time we stopped playing fast and loose with our responsibility to kids?

Karl@denninger.net