The idea that individuals have rights springs from the vulnerability of every human being in the face of stronger forces. Our Declaration of Independence and Constitution are based on the idea that the purpose of government is not to protect the elite, nor to facilitate greed or self-interest nor to promote a religious group’s agenda. Its purpose is to guarantee certain inalienable human rights for all people including our nation’s posterity… our young citizens.
Most of us presume that parents have rights that give them exclusive power over their children, especially newborn babies. But the need to specify those rights only arises when things go wrong in families and in child-serving institutions. Unfortunately, the emotionally charged issue of parental rights arises quite often today. Parents compel state intervention when they neglect and abuse or dispute custody of their children. Minors give birth. Too many child-serving institutions are overburdened and unable to function effectively.
Even defining who is a parent can be complicated. With surrogate birth and artificial insemination, defining a mother and a father can be complicated. By eliminating the ambiguous term “natural parent” from its rules for establishing a legal parent-child relationship, the Uniform Parentage Act encourages courts to focus on the precise relationship a female or male has to a child. Is the relationship of each mother and father: 1) genetic, 2) birth (mother only), 3) functional, 4) stepparent, or 5) adoptive? A single child could have as many as nine different persons legally recognized as a parent by adding 6) foster, 7) step, 8) surrogate and 9) sperm or egg donor.
Because of their obligations to their children, parents need rights or prerogatives to protect and fulfill the human rights of their children. Unfortunately, contemporary talk about human rights usually emphasizes the rights to benefits and overlooks the responsibilities that accompany those rights.
In the past, children have been treated as the personal property of their parents. Under Roman law, the patria protestas doctrine gave fathers life and death power over their children. To this day, the popular presumption is that children belong to their parents.
In contrast, since The Enlightenment of the Eighteenth Century, parenthood in Western cultures has been seen as a contract between parents and society by philosophers and evolving legal codes. Parents are awarded rights in exchange for discharging their responsibilities.
John Locke in the Seventeenth Century and William Blackstone in the Eighteenth Century held that parental rights and powers arise from their duty to care for their offspring. They recognized that no society can survive unless its children grow up to be responsible, productive citizens. Children also have the right to be raised without unjustified interference by the state. Taken together, these rights are called the right of family integrity. Both Locke and Blackstone held that, if a choice is forced upon society, it is more important to protect the rights of children than to protect the rights of adults.
Every man and every woman has a natural and Constitutional right to procreate. This principle could be reasonably applied when the onset of menarche was between sixteen and eighteen. Now that menarche appears on average at the age of twelve, we must ask if every girl and boy has a natural and Constitutional right to procreate. In the light of this question, the need for careful thought about parental rights and responsibilities is intensified.
The Child-Parent Relationship
James Garbarino, professor of psychology at Loyola University Chicago, points out that parental rights are influenced by personal and public views of child-parent relationships. Are children:
• the private property of parents,
• members of families with no direct link to the state, or
• citizens with a primary relationship with the state?
Children as Private Property
Parental rights have become the most protected and cherished of all Constitutional rights. They are based on the natural right to beget children and the likelihood that affection leads parents to act in the best interests of their children. The Fourth Amendment’s protection of the privacy of the home and the Fourteenth Amendment’s due process clause are interpreted to give parents legal and physical custody of their children. The popular presumption that children are the property of their parents therefore is understandable.
In the 1995 Congress, a Parental Rights and Responsibilities Act was introduced. It would have created a Constitutional amendment specifying absolute parental rights. It didn’t gather support because the legal system already respects parental rights. It also would have made protecting children from neglect and abuse more difficult.
In spite of strongly held beliefs to the contrary, the legal system no longer considers children as property. There even is a genetic basis for the legal position that parents do not own their children. The genes we give them are not our own. Our own genes were mixed when they were transmitted to us by our parents. Our genes are beyond our control. We really do not own them. They extend back through previous generations and potentially forward into future generations. We are only the temporary custodians of our own genes and of our children.
Mary Lyndon Shanley, professor of political science at Vassar College, holds that an individual’s right to reproduce and a parent’s wishes cannot be the primary foundation of family law. The primary focus must be on children’s needs and interests. The parent-child relationship is one of stewardship. Parental authority involves responsibilities beyond the parent’s own wishes.
What’s more, our legal system is based on the principle that no individual is entitled to own another human being. Guardians of incompetent adults are agents, not owners, of those persons. In the same way, the childrearing rights of parents consist of 1) the guardianship right (legal custody) to make decisions on behalf of a child and 2) the right to physical custody of the child. These rights are based on a child’s interests and needs rather than ownership of the child. We certainly do not own our children.
Children as Family Members
Children are generally regarded as family members with no direct link to the state. The concept of parental rights sprang from traditions and Constitutional precedents that endow genetic and adoptive parents with special rights.
Parental rights are legal prerogatives based on the moral and civil rights of children to be nurtured and protected. They are based on the assumption that parents can best decide how to raise a child without undue interference by the state. Without a voluntary or involuntary forfeiture of parental duties, the state cannot permanently remove children from their parents’ custody to seek a better home for them unless there has been a legal termination of parental rights.