Parental Rights and the Importance of Being Parents (original) (raw)
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The right to parent one’s biological baby
This paper provides an answer to the question why birth parents have a moral right to keep and raise their biological babies. I start with a critical discussion of the parent-centred model of justifying parents’ rights, recently proposed by Harry Brighouse and Adam Swift. Their account successfully defends a fundamental moral right to parent in general but, because it does not provide an account of how individuals acquire the right to parent a particular baby, it is insufficient for addressing the question whether and why there is a right to parent one’s biological child. The existence of such a right is important, because, in its absence, fairness towards adequate prospective parents who are involuntarily childless may demand a ‘babies redistribution’; moreover, in societies with entrenched histories of injustice there may be reasons of fairness in favour of baby shuffling amongst all recent parents. I supplement the Brighouse-Swift account of fundamental parental rights by an account of how adequate parents acquire the right to parent their biological babies. I advance two arguments to this conclusion: by the time of birth, the birth parents will have already shouldered various burdens in order to bring children into existence, and are likely to have formed an intimate relationship with the future baby. Denying birth parents, who would make at least adequate parents, the right to keep their baby would be unfair to them and would destroy already formed parent-baby relationships. These, I assume, are intrinsically valuable.
Columbia Human Rights Law Review, 2015
This article advances an interpretative account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them. This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property. The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments. The later portion of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.
Fairness in Allocations of Parental Responsibilities, and the Limits of Law
Canadian Journal of Law & Jurisprudence 33(2), 397-433, 2020
When families dissolve, familial burdens and benefits as marital property and the burden of child support should be distributed. These allocations, sometimes made by courts and sometimes through private negotiation, are better to be fair. Also requiring allocation is the right and duty to take ongoing care of one’s children. Current legal schemes of allocation either ignore the allocation of caregiving while distributing property and support duties; or alternatively take the allocation of custody into account by seeing it as an extra burden inflicted on the custodian, hence seeing the custodian as entitled to exemption from the duty of support or even to a bigger share in the marital financial resources. Yet caregiving might be regarded as a benefit rather than a burden, at least when both parents genuinely desire to provide caregiving. Shouldn’t we lean the allocation of property and support in favor of the non-residential parent, as a counterbalance? In order to evaluate this suggestion, the paper first undertakes a long list of simplifying assumptions, attempting to provide the best possible defense for such line of argument. Through these assumptions, the discussion abstracts from other relevant considerations as the best interest of the child, gender-justice considerations, various confounding contingencies and the obstacles for legal implementation. The paper then drops these assumptions, one by one, considering their effect on both the principled requirements of fairness and the appropriate legal regulation, thus carefully evaluating the argument and its limits. It then considers its ramifications on the general appropriate legal norm, on the legal norm that applies to private ordering, and on the moral norm that applies to the contracting parties, exploring the anti-Holmesian idea of assessing the law from the perspective of the good person.
Childhood Bads, Parenting Goods, and the Right to Procreate
Harry Brighouse and Adam Swift, together with many other philosophers, think that adults' interests in raising a child can give them a moral right to parent when they will be adequate parents. We consider whether the same interest could give such adults a moral right to procreate, as a means of acquiring a child to raise. We argue that the interest in parenting cannot support a right to procreate, because the features of childhood that make parenting uniquely valuable for adults are bad for children. Adults may have a right to procreate, but they do not have that right due to their interest in a parent-child relationship.
Bargaining or biology? The history and future of paternity law and parental status
Cornell journal of law and public policy, 2004
Paternity suits make good headlines, 1 but they often make bad law. The headlines are news, no doubt, because people care as much about the tangential question, who was sleeping with whom, as they do about the ultimate question, who is the father? This article will suggest that whatever the allure of examining peoples' sex lives, the law should abandon its interest in determining biological paternity. The legal rights and duties of fatherhood should emanate from commitment and contract, not from sex or genes. Currently, fatherhood is a status that brings with it rights and obligations. For the most part these rights and obligations attach regardless of whether one meets or exercises them. They attach, at least according to paternity doctrine, by virtue of one's blood connection to the child. This article challenges that law of parental status at two levels. First, it demonstrates that often, notwithstanding paternity doctrine, blood has little to so with one's status as father. What matters instead is one's relationship with the mother. More specifically contract, or private bargaining between individuals, often tells us more about who the law will consider a father than does blood. Second, this article suggests that thinking about fatherhood as a fixed status is Bargaining or Biology? 2 problematic. One's status as father (or mother) should depend on whether one exercises the rights and fulfills the obligations of parenthood, not on whether one has a blood connection. This second level challenge, to the idea of fixed fatherhood, is a logical outgrowth of the first challenge, to paternity law, because it is the logical outgrowth of thinking about parenthood as contract. If one fails to meet the obligations of a contract to parent, one can lose the rights that the contract provides. By the same token, if one promises to perform the obligations of parenthood, or performs them in a context in which a promise to do so can be inferred, then one can be bound in contract, not because of one's status, but because of one's deliberate acceptance of fatherhood. The argument begins in Section I with a brief historical and contemporary explication of the paternity suit. Section I then demonstrates just how little the law actually cares about biological paternity by examining those cases in which the law rejects biology as a basis for paternity. The last part of Section I analyzes potential rationales for holding a biological father 2 This idea is not new. Martha Finem an endorsed a m other-focused family that elim inated all notions of fatherhood almost ten years ago. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 228-233 (1995). This article does not go nearly as far. It endorses a fam ily structure in which m others hold initial rights and obligations, but in which those rights and obligations are alm ost always shared with fathers. See infra Section III. 3 examines how contracting for parental rights fits the reliance and will theories of contract, the consideration theory of contract and relational theories of contract. Section III then scrutinizes the entitlements and obligations that are actually exchanged in these contracts. It suggests and defends two ideas that are likely to be controversial. First, a gestational mother holds all initial rights and obligations to a child. 2 With some built-in limitations, parental rights and obligations are the mother's to contract away as she chooses. Second, the obligation to support a child can be limited temporally, so that the paternal obligation reflects what was bargained for in the agreement between mother and father, not a static notion of fatherhood. Section III concludes with some examples of how the contract regime would work in practice. Section IV explores the relative costs and benefits of embracing this contract model. Among the benefits is the elimination of the current distinction between how parental status is determined for parents of children born by virtue of reproductive technology and how parental status is determined for parents of children born by virtue of sexual intercourse. Also eliminated is the distinction between how parental status is assigned to straight and gay parents. The partner of a gestational mother (or one who contracts with that mother) acquires parental rights and obligations by virtue of an agreement with the mother, not by virtue of genetics. More important, the proposal offered here recasts fatherhood as a truly volitional status, a set of rights and obligations that one willingly agrees to. It does so, in part, by severing the the legal link between sexual activity and reproduction, as medicine now routinely does, and as is necessary in order to bring the law of parental status up to date with contemporary mores and the contemporary law of sexual activity. The proposal also makes clear that if one does not fulfill the obligations of fatherhood, one can lose the status of father, and if one enjoys the rights of fatherhood, one can become a father. Bargaining or Biology? 3 See infra notes 169-174 and text accompanying.
Philosophy in Review, 2013
These three books bring a variety of philosophical perspectives to bear on issues of family and intimate association in contemporary western societies. Whatever their different approaches, none of these authors aspires to offer universal, acontextual approaches to these most personal of relationships. Brake and Overall contend that their topics-respectively, the sort of institution that marriage should be in a politically liberal society and the reasons for having children-are 'philosophically undertheorized' (Brake 1). Ramaekers and Suissa maintain, by contrast, that while parenting has much been theorized of late, it has been theorized in the wrong way, and that more helpful and appropriate ways of thinking about the parent-child relationship are urgently needed before these distorting perspectives do yet more damage. Following in the footsteps of Mary Wollstonecraft, Harriet Taylor, and John Stuart Mill, Elizabeth Brake subjects the institution of marriage to careful scrutiny and stern criticism without concluding that it should be abolished. She explores what liberals should make of contemporary marriage and inquires as to what sort of institution, if any, they should defend. Brake recommends a revised version of marriage, in which the state protects the freely chosen and just caring relationships of its adult citizens.