Document Type

Article

Publication Title

UCLA Law Review

Publication Date

2-1993

Abstract

This Article examines two domains of family law, each of which seems to threaten or challenge (depending on perspective) traditional family values and structures. One of these domains involves the paternal rights of unwed fathers; the other involves the parental rights of parties to surrogate mother arrangements. Recent judicial decisions in both areas of family law recognize, but often oppose, shifts in society's understanding of family (of "mothers" and "fathers" and their relations to each other and to "children"). In large part, the decisions at issue here result from an essentially conservative effort to preserve, despite the frequent legitimization of change, a traditional domain of family. The decisions represent an attempt to keep the family separate from and unaffected by the world of money and work, unaffected that is by the market, including its often unremitting view of people as unconnected autonomous individuals. In the effort to preserve traditional families while assimilating patterns and possibilities that seem to constitute dramatic change, courts rely on and articulate, but also begin to alter fundamental assumptions about what makes families "families" and about what makes mothers "mothers," fathers "fathers," and children "children."' The result is curious. To safeguard treasured forms in the face of changing values and structures, courts have considered, and then sometimes shifted or defined anew, the key symbols through which families are discussed and understood. But, in consequence, the very effort to preserve traditional families, to preserve traditional notions of family, represents and provides new grounds for justifying the changes feared.

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