Abstract
Perhaps the greatest determinant of individual and societal welfare is who raises children and with what degree of discretion. Philosophers have endeavored in myriad ways to provide normative justification for ascribing a right to be a legal parent and to possess particular legal powers as a parent. This Article shows why they fail and offers an alternative theoretical framework for delimiting parental rights. The prevailing tendency in philosophical writing on the topic is to begin with observations and intuitions specific to parent-child relationships. Against that tendency, this Article demonstrates the need to begin with principles at a high level of generality, covering a broad range of human relationships. This yields a much more limited moral right in connection with parenthood than do accounts that fail to generalize.
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Notes
See Matthew H. Kramer, ‘Refining the Interest Theory of Rights’, The American Journal of Jurisprudence 55 (2010) pp. 31–39, 32. Most statements of the Will Theory have also taken the position that the right holder must be the person to whom duties are owed.
Harry Brighouse and Adam Swift, Family Values: The Ethics of Parent-Child Relationships (Princeton, NJ: Princeton University Press, 2014), p. 88.
Ibid.
Cf. Henry Sidgwick, The Methods of Ethics, 7th edition (New York: Macmillan and Co., 1907), p. 380 (explaining that the Generalization Principle creates a presumption in favor of the most general articulation and application of an operative principle and ‘throw[s] a definite onus probandi’ on anyone who would exclude some situations from a general normative principle).
Cf. Charles E. Caton, ‘In What Sense and Why “Ought” Judgements are Universalizable’, Philosophical Quarterly 13 (1963) pp. 48–55, 55 (‘A statement involving “ought” or a moral “ought” is logically a statement of the kind for which reasons can be expected; but this sort of reason is never a matter of only the particular case at hand but rather of it and of any not dissimilar case’.); A. K. Rogers, The Theory of Ethics (New York: The Macmillan Company, 1922), pp. 191–192 (noting that when one aims to ‘show definite reasons, that a reasonable being is bound to admit, why the principle applies in the one instance and not in the other... the reasons must be themselves general ones’.); Shelly Kagan, The Limits of Morality (New York: Oxford University Press, 1989), p. 14 (explaining that if one cannot provide explanation for an asserted moral distinction, it ‘hangs free of the rest of his moral theory, and considerations of coherence give him reason to reject the distinction as morally irrelevant, as well as repudiating the intuitions that turn on it’).
Cf. Marcus G. Singer, ‘Generalization in Ethics’, Mind 64 (1955) pp. 361–75, 367 (‘The statement of a reason… must imply a rule or general proposition. ... [Otherwise] it is not the statement of a reason at all, but merely the re-iteration of the assertion’.).
None of the authors with whom I engage in Part III explicitly adopts a Particularist methodology.
Caton, supra note 5, p. 55 (‘the logic of the notion of a reason or a justification is such that, if a person puts forward certain considerations as reasons for an “ought”-judgment, he must also be prepared to put forward the same reasons for the same judgment about a different but not dissimilar case-he must, that is, on pain of unintelligibility’).
See, e.g., Brighouse and Swift, supra note 2, p. 95 (‘No child has a right to be parented by the adult(s) who would do it best, nor do children as a whole have a right to the way of matching up children and parents that would be best for children overall. Both scenarios could leave perfectly competent parents missing out on the goods of parenting’); Liam Shields, ‘Parental rights and the importance of being parents’, Critical Review of International Social and Political Philosophy 22(2) (2019): pp. 119–33, 121 (‘the parental interest must be weighty enough to counter-veil the supra-threshold improvements in terms of the child’s interests’).
‘Basic’ distinguishes a right arising from an interest in having a desired thing from an equality right against arbitrary discrimination in affording persons opportunity to be considered for the desired thing.
Austin and Liao face this further difficulty: They begin with the plausible empirical premise that intimate association in general is a fundamental human interest, but then provide no intelligible basis for insisting one must enjoy every type of intimate association to fulfill that interest. Austin claims people have a moral right to ‘each significant and distinct means of satisfying a fundamental interest’, Michael W. Austin, Conceptions of Parenthood: Ethics and The Family (New York: Routledge, 2007), p. 80, but his only support for that claim is that ‘a state of affairs containing more liberty and diversity in our pursuit of the satisfaction of our fundamental interests is preferable’. The move from a state of affairs being personally preferable to its being an entitlement is left entirely mysterious. Liao begins with the premise that a life cannot be good without any of ‘the basic activities’, which include parenting, then concludes without further explanation that persons have a right specifically to this one particular basic activity--parenting. Neither considers the implications of their reasoning for adult intimate relationships. Austin and Liao also move without explanation from a right to pursue relationships, a plausible negative right, to a right against the state that it affirmatively place one in a parent-child relationship, which is a positive-right claim. See S. Matthew Liao, The Right to be Loved (New York: Oxford University Press, 2015), p. 158 (asserting a ‘right to the fundamental conditions for pursuing biological parenting’), p. 159 (including in ‘fundamental conditions’ a legal ‘power to exclude others from trying to be the primary providers for one’s biological child’). And both would, even if successful at establishing a need to be a parent, have to provide a reason for thinking there is a need for more than one child, or else concede that as to most children no one will have a right to parent them, and assigning them to the best available parent is morally permissible and perhaps obligatory.
See, e.g., Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (National Conference of Commissioners on Uniform State Laws, 2017) (UGCOPAA), § 309; New York Mental Hygiene Law § 81.19(g)(3) (‘Upon consideration of all factors bearing on the best interests of the incapacitated person …, the court may appoint, refuse to appoint or revoke the appointment of any person as guardian’); 755 Illinois Consolidated Statutes 5/11a-12 (‘the paramount concern in the selection of the guardian is the best interest and well-being of the person with a disability’). Even where a once-competent person executed, while competent, a designation of someone to be their guardian in case of incapacity, a court will override that choice if it now appears contrary to the incompetent person’s welfare. See, e.g., 755 Illinois Consolidated Statutes 5/11a-6 (‘If the court finds that the appointment of the one designated will serve the best interests and welfare of the ward, it shall make the appointment in accordance with the designation’.); 231 Pennsylvania Code Rule 14.6(b) (‘the court shall appoint the person nominated … except for good cause shown’).
This intuition is at the heart of the most prominent scholarly defenses of prohibitions on contracting for sex at least since Kant.
See, e.g., Thomas Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2003), p. 4 (stating that reasonable individuals ‘have reason to insist … on basic rights, which give them important forms of protection and control over their own lives’); W. Quinn, Morality and Action (Cambridge: Cambridge University Press, 1993), p. 170 (‘A person is constituted by his body and his mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them... In giving him this authority, morality recognizes his existence as an individual with ends of his own – an independent being’.); John Locke, Second Treatise of Government, (1690) (Indianapolis: Hackett, 1980) Section 27 (‘every Man has a Property in his own Person. This no Body has any Right to but himself’.). Significantly, slavery and coverture both entailed denial of the separate personhood of the objects of the rights they entailed – that is, slaves and wives.
Cf. Judith Jarvis Thomson, ‘A Defense of Abortion’, Philosophy & Public Affairs 1 (1971) pp. 47–66.
See Susan Greene, ‘Through the Guardianship Looking Glass: A Personal Perspective on Conflicting Commitments’, Elder Law Journal 28 (2020) pp. 1–38, 3–8.
Brighouse and Swift, supra note 2, pp. 86, 88–91; Harry Brighouse and Adam Swift, ‘Parents’ Rights and the Value of the Family’, Ethics 117 (2006) pp. 80–108, 100.
For Brighouse and Swift, a second necessary condition for a moral `right to rear’ is that would-be parents are able and inclined to ‘discharge[e] the parental role adequately well’. supra note 2, pp. 86–87. Indeed, they argue persuasively that the parental interest can be fulfilled only if the parenting is at least adequate.
A prominent exception is Brighouse and Swift’s Family Values, and Shields explains why their approach prevents them from justifying the widespread intuition (which I reject) that it would be wrong to assign newborns to parents based solely on who would make the best parents for them. Shields, supra note 9, pp. 122–23.
Liao writes, for example, that ‘the human rights account explains the value of biological parenting in terms of the power to create and shape a new life, the life of a right holder, using one’s own genetic material. This distinguishes biological parenting from other kinds of activities that do not create and shape a new life’. Then Liao concludes: ‘Given this, … the human rights account has the resources to explain why one has the right to parent one’s own biological child’. Liao, supra note 11, p. 163. The connection between ‘it is unlike any other activity’ and ‘one has a right to it’ is left unexplained.
See David Archard, Children: Rights and Childhood (3rd edition) (New York: Routledge, 2015), pp. 160–66.
Melissa Moschella, To Whom Do Children Belong?: Parental Rights, Civic Education, and Children’s Autonomy (New York: Cambridge University Press, 2016), pp. 51–56. For a similar argument, see Michael Cholbi, ‘How Procreation Generates Parental Rights and Obligations’, in J. Ahlberg and M. Cholbi (eds.), Procreation, Parenthood, and Educational Rights: Ethical and Philosophical Issues (New York: Routledge, 2017), pp. 15–36.
See Gopal Sreenivasan, ‘Duties and Their Direction’, Ethics 120 (2010), pp. 465–494, 484.
Millum extends this idea to a continued relationship right later in a child’s life based on past parental investment in raising the child, also without considering how this supposed reason for ascribing a right would apply to other relationships, such as marriage. See Joseph Millum, ‘How Do We Acquire Parental Rights? ’, Social Theory & Practice 36 (2010) pp. 112–32.
Anca Gheaus, ‘The Right to Parent One's Biological Baby’, Journal of Political Philosophy 20 (2012) pp. 432–55, 435, 449–51.
Id., pp. 446–449.
Norvin Richards, The Ethics of Parenthood (New York: Oxford University Press, 2010), pp. 11–13. His rationale for this appears to be that ‘social engineering’ by the state would involve the state too heavily in determining by what values children are raised. This rationale falsely presupposes that biology-based legal parentage is not ‘social engineering’ and/or that biology-based state parentage decision making does not entail the state’s favoring particular values. Any parentage law amounts to the state’s deciding who will raise particular children, and it necessarily reflects value choices – e.g., that biological relationship is of great importance, that adult interests or rights are more important than children’s welfare, that it is morally permissible to sacrifice children’s welfare to some degree (as opposed to other sacrifices that might work) to serve collective interests like value diversity or limited government. Richards also falsely assumes that to choose, from among persons who want to parent a child, those who would be best for the child on the whole, means ‘to take the child to be the only person with interests in play’. In fact, potential parents’ interests would be served, and given all the consideration they are due, by their having a right to choose to be available for the role, or not.
Id., pp. 25–26.
Matthew Clayton, Justice and Legitimacy in Upbringing (New York: Oxford University Press, 2006), p. 58.
E.g., Ferdinand Schoeman, ‘Rights of Children, Rights of Parents, and the Moral Basis of the Family’, Ethics 91 (1980) pp. 6–19.
See, e.g., Brighouse and Swift, supra note 2, pp. 51, 121; Colin MacLeod, ‘Parental Competency and the Right to Parent’, in Sarah Hannan, Samantha Brennan, Richard Vernon, eds., Permissible Progeny?: The Morality of Procreation and Parenting (New York: Oxford University Press, 2015), pp. 227–46.
Even worse is to characterize it as a matter of parents’ ‘autonomy’, as if control of a child’s life were a matter of the parent’s self-determination. In popular and philosophical discourse, ‘auto’ in ‘autonomy’ refers to both the source of the ‘nomos’ and the scope of its application. Thus, if a husband claimed a right to confine his wife to the home as a matter of ‘husband autonomy’, we would say he misuses the word. Likewise if a pro-lifer defended his restraining pregnant women from entering abortion clinics as an exercise of his autonomy.
See UGCOPAA, §§ 313–315; Greene, supra note 16, pp. 9–11.
Cf. Virginia Code § 8.01-6.3 (requiring that complaints filed in court to recover from third parties who harm a person under guardianship or conservatorship should clearly indicate the person filing does so as fiduciary for the ward).
See Sreenivasan, supra note 23.
See, e.g., William Galston, ‘Parents, Government, and Children: Authority over Education in A Pluralist Liberal Democracy’, Law & Ethics of Human Rights 5 (2011) pp. 285–305, 294 (arguing for protection of parents’ ‘expressive liberty’ to shape a child’s life in accordance with the parents’ belief system, because doing so ‘is a precondition for leading a complete and satisfying life’); Eamonn Callan, Creating Citizens: Political Education and Liberal Democracy (New York: Oxford University Press, 1997), p. 145 (‘We should want a conception of parents' rights in education … that will do justice to the hopes that parents have and the sacrifices they make in rearing their children’.); Edgar Page, ‘Parental Rights’, Journal of Applied Philosophy 1 (1984) pp. 187–203, 195 - 96 (‘the ultimate justification of parental rights lies in the special value of parenthood in human life’); Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978), p. 152 (‘[T]he right to form one's child's values, one's child's life plan and the right to lavish attention on that child are extensions of the basic right not to be interfered with in doing these things for oneself’.).
See, e.g., Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 881–89 (1992) (invalidating a state-law provision requiring mere notification of a husband of a woman’s intention to obtain an abortion, and rejecting the contention that a husband has some right at stake in the abortion decision).
This is theoretically possible. A confluence of two or more general principles, each applicable to a range of situations, could distinguish parent-child relationships from other relationships, even though each might also apply to some other relationships. Or there could be a single principle applicable to the parent-child relationship and to no other actual or conceivable relationship, but applicable also to non-relationship situations. I am unaware of anyone attempting to show either.
Cf., Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 266–67, 285–87 (1990) (rejecting argument by parents of adult in persistent vegetative state that they had a constitutional right to decide whether to terminate her life support, and stating that only the daughter herself had any rights in the matter); New York Mental Hygiene Law § 81.20 (defining the role of guardian for an incompetent adult in terms of powers, authority, and duties, including a duty to ‘exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person’, with no reference to any right or entitlement of the guardian).
See Sreenivasan, supra note 23.
See, e.g., Emily Buss, ‘Parental Rights’, Virginia Law Review 88 (2002) pp. 635–83, 649.
See, e.g., Stephen L. Carter, The Culture of Disbelief (Basic Books, 1993), p. 174 (arguing that parents should be entitled to remove their children from certain components of public school education, such as sex education, to which they have religious objections, because this will help preserve ‘epistemological diversity’ in our society).
I am not endorsing here a regime that allocates power over children’s lives on the basis of what is best for society. I am just pointing out the illogic of arguing that parents have rights because that guards against loss of collective goods.
There might be exceptions, including situations in which persons’ voluntary behavior gives rise to a duty on their part to accept a relationship with another person, but the rationale for such exception obviously would not support ascribing to birth parents a right to form a relationship with a newborn. No theorist has argued that young children have a duty on this or any other grounds that could be a basis for ascribing to any adult a right to be their legal or social parent.
See UGCOPAA §§ 302, 309. In some jurisdictions, a statutory presumptive-priority list, based on assumptions about what the incompetent person would most likely choose if able, guides the court’s judgment. Any such statutory prioritization, or even a prior designation by the ward before becoming incompetent, however, is subject to override based on a best-interest finding. See id. § 309(c). And if two or more persons are at the same level of priority, the court must choose the one it thinks best qualified. Id. § 309(b).
Id. at § 206.
See Joan Heifetz Hollinger, Adoption Law and Practice (New York: Lexis, 2012) § 4.01[1].
As with appointment of a guardian for an incompetent adult, the best-interest standard can be indeterminate in some cases. That indeterminacy does not change the would-be parents’ moral position, such that an entitlement to priority then arises for any one of them (e.g., based on their stronger desire or lack of other children). It is unnecessary for present purposes to determine on what other basis the proxy might resolve the indeterminacy. In many cases – for example, where birth parents have a serious history of child maltreatment or a chronic addiction to seriously disabling substances, it will be clear enough that choosing someone else who seeks parenthood would be better for the child.
My discussion presupposes that normally constituted children need parents per se, rather than institutional placement or ‘congregate care’, because of the well-established, profound developmental importance of secure attachment (a need the profundity of which renders pointless philosophical efforts to ‘justify the family’ by appeal to parental or societal interests in addition to children’s welfare).
To the concern that such characteristics are likely to be the product of social injustice, I would respond that such background circumstances are morally as irrelevant to proxy decision making for a child as they are for autonomous adults’ choosing intimate partners (which typically also takes into account other persons’ mental health problems, addiction, lack of education, criminal history, etc.) and for courts selecting a guardian for an incompetent adult.
I mean to distinguish here self-protection from desire to make another’s life comport with one’s conception of the good. We might individually or collectively have some moral rights grounded in self-protection regarding how other people manage their own or their children’s lives – for example, that they endeavor to achieve self-sufficiency and law-abidingness.
See, e.g., Matthew H. Kramer, ‘Some Doubts about Alternatives to the Interest Theory of Rights’, Ethics 123 (2013) pp. 245–263.
See UGCOPAA § 313(a), (d), (e); New York Mental Hygiene Law § 81.20.
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Dwyer, J.G. Deflating Parental Rights. Law and Philos 40, 387–418 (2021). https://doi.org/10.1007/s10982-021-09406-w
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DOI: https://doi.org/10.1007/s10982-021-09406-w