Parental Rights and Responsibilities

Stephen Gilmore

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351555036
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This volume represents key scholarship on the issue of parental rights and responsibilities, selected from a dense forest of literature. The collection offers an overview of the subject and covers topics such as: underlying rationales of who or what is a parent; legal concepts ofparent and their linkage; the legal parent - accommodating complexity; the nature and scope of parental rights; shared parental responsibility; and parental rights and the state.

Part I:
Who or what is a parent? Underlying rationales

1
The Origin of Parental Rights

Barbara Hall

The remarkable growth of reproductive technology is steadily unhinging a Pandora's Box of questions and difficulties regarding the essential nature of human procreation. Moral and legal dilemmas regarding the liabilities and entitlements associated with procreation seem inevitable. How are we to characterize the relationship between the procreator and the reproduced?

In a less technologically advanced time the above question could only have been understood as an inquiry into the nature of the parent/child relationship. Today the makeup of the parties is more ambiguous. Perhaps the relationship contemplated by the question would be the one between the sperm donor and fetus, the surrogate mother and newborn, the divorcing couple and the frozen embryos.

In this paper I examine the relationship of parent and child. I do so because, ultimately, how we judge the rights and responsibilities associated with these newly emerging sets of procreational relationships will be a reflection of our beliefs about the privileges and obligations of the prototype parent/child relationship.

Every culture has certain assumptions about what parents can and cannot do with and to their progeny. In our own culture these ideals are given constitutional protection. For instance, parents have the right to the physical possession of the child, including the day-to-day care and companionship of the child; the right to discipline the child, including the right to inculcate in the child the parents' moral and ethical standards; and the right to prevent adoption without parents' consent.¹

These are just some of the benefits to which most of us believe that parents as such are entitled. They are not absolute; and there are undoubtedly others. But, are these beliefs morally justified in addition to being legally sanctioned? What is the moral basis of the tie that binds the procreator to the begotten? Is the right relevantly like a property right? How tenuous is it? How immutable?

The issue of what specific moral rights parents have vis-a-vis their progeny is itself a matter of controversy. However, it is not necessary for our purposes to broach this topic. The fact is that we do think, all things considered, that biological parents should have the original charge of children. By "original charge" I mean the initial legal and moral claims to and responsibilities for their progeny. What is it about the biological parents (versus the rest of the world) that fuels the intuition that they have initial entitlement to a child?

One feature distinguishing the parents from everyone else is that they (and no one else) have acted distinctly in begetting the child. Perhaps it is these unique actions that yield them special rights. Let us explore what these actions might be and how they could generate rights.

John Locke in his Theory of [Just] Acquisition² offers an explanation of how it is that an individual may come to rightfully acquire or possess a thing—to have rights over and above the claims of anyone else to that thing. According to Locke, an individual's actions vis-a-vis Thing X generate his rights to that thing. Specifically, when one acts to mix one's labor with X (X being unowned) one justly obtains X.³ Moreover, Locke says, "[J]ustice gives every man a title to the product of his honest industry."⁴ Can this "labor theory" provide an adequate explanation of the basis for parents' rights to children?

Lawrence Becker succinctly outlines the basics of the "mixing" argument. The initial premise upon which Locke rests his conclusions is that everyone has a right in his own person that no other person can claim.⁵ Given this, the labor he produces with his body also belongs to him. Locke mentions only labor in this context, but presumably whatever a body generates is "from that body" (i.e., of that person). Thus, a smile, an idea, or a chemical secretion can be described as things being "of" or from a person's body and, therefore, things belonging to that person.⁶

Locke's theory of property rights is based on the presumption that a person, by mixing his labor (what he owns) with an unowned thing, comes to own that thing to which the labor has been attached. This "leap" Locke makes is not without its critics.⁷

Putting aside the problems associated with the idea of "mixing" labor with a thing, let us assume that we are indirectly and retroactively afforded protection for our labors when we are allowed property rights to the thing on which we have labored.⁸ Can we argue that the reason that parents have "first dibs" on the children they produce is that they have labored to bring these children into existence?

Perhaps it should be stated here that Locke himself did not use his theory of property rights to justify parental rights. Parental rights were not akin to property rights. Parents were charged with the care of their children only because of the latter's imperfectly developed faculties of reason.⁹ Commentators have argued that Locke's attempt to distinguish between property rights and parental rights is unsuccessful and contradictory.¹⁰

A critical assessment of Locke's theories of parental and property rights may indeed lead one to the conclusion that his theory arbitrarily distinguishes between children and vases.¹¹ But the question is simply whether the relationship between parents and children, however it is conceived, rests on the notion of a begetter's privilege which is tied to a Lockean notion of property rights requiring labor as a necessary condition.

In the next few pages I will argue that labor is neither a necessary nor a sufficient factor in the attribution of rights to biological parents. Hence, Locke's labor theory cannot justify our notion that initial parental rights belong to the biological progenitors.

Consider the following. Suppose a woman, Gertrude, agrees to serve as a surrogate mother. That is, she agrees to gestate and give birth to a child for the couple with whom she contracts. Should Gertrude have any parental entitlement to the child? If the contribution of labor is the determining factor in the allowance of parental entitlements, then Gertrude should have parental rights. Certainly, the amount of labor she expended in gestating and giving birth to the child exceeds that expended by the couple for whom the baby is delivered. What if the child is genetically unrelated to Gertrude?

There are essentially two ways in which a woman may provide surrogacy services for a couple wishing to have a child.¹² One, she may agree to have her own ovum artificially inseminated by the male, then surrender the child upon its birth to him. His wife, who (typically) is infertile, then legally adopts the child. This has been the customary scenario for surrogacy arrangements. In the United States, courts have held that the surrogate mother and the biological father are the natural parents of such children.¹³

These rulings have undoubtedly given pause to infertile couples who might wish to choose the surrogacy option. They hold that no surrogate mother can contractually be compelled to abrogate her maternal rights, nor can she receive money for her services as a surrogate mother. (It would be tantamount to selling her child. She may, however, donate her services.¹⁴) These rulings have protected women who decided, upon giving birth to a child, that they did not wish to give up their rights to that child.

The courts' holdings do not seem out ot accord with our moral intuitions. Why? Is it because the labor of the surrogate perhaps warrants her having some maternal rights? Now, consider a second, more problematic scenario.

The surrogate, in essence, agrees to make a loan of her womb. She is implanted with the ovum of the prospective mother (donor female) which is fertilized with the prospective father's sperm either in vitro or in vivo.¹⁵ Here, the surrogate is not genetically related to the child she carries. The courts, however, still maintain that the surrogate is the natural mother of the child in these cases.¹⁶ Again, the surrogate might seem to deserve rights to the child given that she has labored more than the intended mother in the gestation and birth of the child. But when we consider the biological father's labor in producing the child we can see that he has labored no more (and probably less) than the intended mother in donating her genetic material.¹⁷

If we are ascribing parental rights by the amount or type of labor expended in the reproduction process, then, perhaps, the child's parents ought to be the surrogate mother and the donor female. After all, the latter went through the uncomfortable labor of having her ovum extracted while it is doubtful that the prospective father experienced such discomfort in contributing his sperm. Certainly, it is not obvious that the biological father deserves more rights than the donor female. Yet she is not considered to be the natural mother, while he is deemed the natural father.

If it seems unfair that the sperm donor has presumed legal rights to the child but the ovum donor does not, it is because intuitively we believe that labor is not truly the determining factor in the ascription of parental rights. It is not the actions or labors of the natural parents that warrant their entitlement to their children, but something more fundamental. If Gertrude gives birth to a child that is the genetic progeny of Roger and Sally, and that has no genetic affiliation to herself, the child seems to be Roger's and Sally's, even though, legally, Gertrude is considered the biological mother and Sally must adopt the child.

The fact that the child represents a genetic part of its parents is what fuels this intuition. Parents are entitled to their children for the same reasons that they are entitled to anything that is a part of themselves. Thus, it is ultimately a belief in the notion of self-ownership or self-integrity that fuels our presumption in favor of a natural parent's entitlement to her child. If the concept of self-ownership is valid, then certainly whatever is constitutive of a person's body and self belongs to that person.¹⁸

Earlier I stated that the notion of self-ownership buttressed Locke's labor theory of acquisition: if a person owns himself, then he owns his labor. When he expends his labor, he is mixing something that he owns with some other thing and that is why he comes to acquire that other thing. Here, my claim is not about ownership of our labor, but about ownership of our genetic material. As I stated previously, labor turns out to be neither a necessary nor a sufficient condition for establishing parental rights. But, perhaps, the reader is not yet convinced that this point is correct. So, consider the following two scenarios:

Scenario 1

Zerba, an evil but ingenious scientist, invents a device that can extract people's body parts unbeknownst to them. Zerba does not steal vital organs such as hearts and brains, but he does have a rather lucrative business selling misappropriated kidneys and lungs. He is soon discovered by the Filched Organ Police. He has a stockpile of unsold kidneys and lungs. Who, legally and morally, should be entitled to claim these organs? Justice seems to require that the unwilling donors be entitled to reclaim the organs or at least to receive compensation for them should they so desire. Why? Becaus...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• Part I: Who or what is a parent? Underlying rationales
• Part II: Legal concepts of 'parent' and their linkage
• Part III: The legal parent – accommodating complexity
• Part IV: The nature and scope of parental rights
• Part V: Shared parental responsibility
• Part VI: Parental rights and the state
• Index