Parental Rights Defined and Defended
The sixth in a series
In his post-apocalyptic novel, The Road, Cormac McCarthy tells the gut-wrenching story of a father and his son, who set out on a journey to survive in a world that makes Thomas Hobbes’s state of nature look like a Club Med resort. McCarthy’s narrative reveals the natural relationship between a parent and a child, and, more particularly, the deep-rooted human passions that connect a father to a son. The story also demonstrates what a father will do to protect his son.
To that end, there is a horrifying scene in the novel when the man’s son is physically captured by a pedophilic cannibal, who threatens to slit the boy’s throat in the father’s presence. Without pausing, without thinking, without doubting, and without remorse, the father shoots the predator in the head. It was a simple and easy act.
Later in the day, as the father is washing the dead man’s brains and blood out of his son’s hair, his only thought is: “This is my child” and “[t]hat is my job.” That night as father and son are sitting around a campfire, the father says to the boy: “You wanted to know what the bad guys looked like. Now you know. It may happen again. My job is to take care of you. I was appointed to do that by God. I will kill anyone who touches you. Do you understand?”
The father’s question is our question. This is what we seek to understand in this essay.
This scene from The Road reminds me of a similar experience that I once had many years ago. In 1996, I was on a subway train in London. I was carrying my 8-month-old son in a baby backpack. The train was full of menacing and predatory football hooligans, who were clearly looking for trouble. I remember thinking to myself as though it were yesterday, “if you touch my son, I will kill you.” I might just as well have added, “because that’s my job.”
Implicit in that thought was the fact that this little boy was mine and no one else’s. Implicit in that thought was the fact that the little package on my back was the single most important thing in the entire world to me for which I was prepared to kill and with extreme prejudice. (Naturally, I was also prepared to die in an instant for this small creature, whose only known word to me at that time was “da-da.”)
Fortunately, no trouble was to be had that day, but I was later struck with the thought that the killing of another human being came so quickly and easily to me.
I am a peaceful man and I have never once in my life initiated physical violence against another person, but here I was at that moment ready to kill entirely without remorse and maybe even with some satisfaction.
Every now and then, I think about that moment and I wonder to myself: What was it that made me think I was capable of killing another human being? What made me think with the father in The Road that “I will kill anyone who touches you”?
These two simple stories reveal something important about the human condition that we need to understand.
Going forward, the questions that interest me are: What is the deepest source of this sentiment, and does it bear on the question of parental rights?
My Approach to the Fundamental Questions
My approach to this question differs from McCarthy’s in that I do not think that I was appointed by God to protect my children. I appointed myself, and my wife and I swore an unspoken oath to each other that we would protect, nurture, and serve our children no matter what.
My working hypothesis is that underneath this sentiment—the sentiment that says, “I will kill you if you touch my child because that’s my job”—rests an even deeper claim. This essay seeks to understand and explicate the meaning of a natural and elemental human phenomenon: the observable fact that parents everywhere and always have thought, said, and felt sentiments such as “this child is mine” or “this child belongs to me.”
In addition to thinking, saying, and feeling such things, parents have also acted on this claim throughout history. In the most extreme instances, they have killed or been killed to stake their claim. And even if they have not killed or been killed, they have been ready in an instant to do so.
I would contend that this mostly unconscious sentiment lies just below the surface in the human psyche. It seems to be an irreducible primary set on a taut trip wire.
It is also important to note here that we typically extend this personal claim beyond ourselves to others. Virtually all people everywhere treat this rights-claim (i.e., “this child is mine”) as reciprocal and universal. This is why in our day-to-day language, we typically speak of “your child” or “their child” or “his/her child,” and we do so with a certain kind of respect.
What is the meaning of all this? How and why do we use possessive pronouns and determiners in our language when speaking of children? What is meant by “mine,” “belongs,” “yours,” “theirs,” or “his/hers”? And what is the moral-legal meaning and status of these words?
We need to unpack the deepest meaning of these simple words and phrases because they bear in some way on the question of parents’ rights.
This kind of language—the use of possessive pronouns and determiners in our ordinary language—immediately suggests the idea of a possession (i.e., a possession that is contextually absolute and unalienable), but what could it possibly mean to suggest that a child is a kind of “possession”? If a child is the “possession” of a parent, does that not suggest the child is some kind of “property”? And if a child is “property,” does that mean the parents can treat the child in the same way that they treat other forms of property, e.g., cattle?
There is, of course, an immediate counterfactual to the suggestion that children are the “property” of their parents.
Those who have ever been a parent or been around parents and their children know another truth about the parent-child relationship: it is akin to the master-servant relationship described by Aristotle in The Politics, but not in the way you might think. The parent-child relationship may be more properly described as a relationship in which the child is clearly the master and the parent is clearly the servant.
This strange, paradoxical fact can be likewise observed every day. Just go to your local park where children are playing or go to the grocery store. Better yet, go to a birthday party with a tribe of five-year-olds. Every boy is treated by his mother as though he were the dauphin, and every boy treats his mother as though she were his personal maid. Every girl is treated by her father as though she were the dauphine, and every girl treats her father as though he were her personal valet.
Virtually every parent I have ever known is a full-time, indentured servant to their child. And like indentured servants, parents serve a fixed term of service to their child that is usually double, triple, or quadruple the standard seven-year term of indenture. I have even known, as I am sure you have too, parents who are serving a life-time indenture to their children. In fact, with some parents, indentured servitude does not adequately describe the relationship. A much stronger term that shall not be named may be necessary to accurately describe the relationship of parents to their child.
As you can now imagine, all of this becomes complicated and unsettling very quickly.
Obviously, we need to sort out this conundrum if we are to understand how the principle of “rights” applies to parents. Before we go any further, though, it is important to recall that the principle of “rights” is a moral-legal concept that requires two or more people to be operative. Rights denote relationships. We are not talking about parents or children in the abstract; we’re talking about real people and real relationships.
In what follows, I shall attempt to elucidate what the rights of parents are, where they come from, and how they stand relative to their child and to third parties, including the government. Specifically, we want to explore what it could possibly mean for a parent to say, “this child is mine.”
With these questions in mind, I will be offering a naturalistic account of the source, nature, and meaning of parents’ rights and responsibilities.
Do Parents Have a “Property” Right in Their Children?
To begin, let’s start with a few simple but demonstrably true and universally accepted facts: first, the procreative act between a man and a woman results in a fetus; second, with the birth of a child, the parents claim certain exclusive rights to and over that which they have created; and third, the natural relationship between the parents and their child (i.e., the ensuing rights and responsibilities of both) is an of extension of the procreative act and the claim to possession, which means the rights and responsibilities of parents are grounded in nature.
More to the point, all parents everywhere have said to others or thought to themselves, “this child is mine” or “this child belongs to me,” which means that no other person has a legitimate claim on this child. Other than Plato and a few other philosophers and theologians, who has ever denied this right?
These simple facts and rights of nature are grounded in the human condition and have no doubt been replicated billions of times throughout history. Parents have needed neither governments nor philosophers to know these facts or to assert these claims. Biologically and historically speaking, these facts and claims are the deepest source of all human laws.
Central to this essay is my claim that parents have certain rights to and over their children. A parent’s right to his or her child is a morally and legally recognizable claim relative to other people or to the government and it says something like, “this child is mine and not yours.” A parent’s right over his or her child is a morally and legally recognizable claim relative to the child and it says something like, “I have a right over how I shall raise my child.” This distinction between a right “to” and a right “over” shall provide the logic and structure for my argument going forward.
Before I proceed, though, I would like to address an alternative account of parental rights and responsibilities.
One common way to think about the moral-legal relationship between a parent and a child is that of a guardian and ward. The role of a guardian is to exercise authority over his or her ward for the child’s benefit. The guardian-ward relationship can be understood in legal terms by what’s known as a trust, wherein the guardian is morally and legally obliged to promote the ward’s wellbeing. The child is, as it were, “held” in trust by the parents or guardians.
There is, I think, a good but only partial case to be made for viewing the parent-child relationship through the lens of the guardian-ward relationship. The content, language, and meaning of trusteeships and guardianships is, in my view, thin gruel. It can’t adequately explain or encompass the deepest natural source and the meaning of the moral law of nature that defines the parent-child relationship.
The real and proper relationship between a parent and a child is more than just a trusteeship. It is a deeper and thicker relationship. Biological parenthood is a bond that cannot be fully captured or explained by the guardian-ward relationship. The parent-child relationship transcends neutered legal categories. (I don’t know with certainty, but I suspect that the adoptive parent-child relationship can, with time, approach the psychological depth of the biological parent-child relationship.)
The Source of “Mine” and “Thine”
A parent’s proprietary right to their child is, in part, grounded in the fact that they have created and brought into existence this new human being. Two people—a man and a woman—have, in Lockean terms, literally mixed their labor with each other to create a new human being—a being that shares the parents’ DNA. The parents have both a moral and what might be called a “genetic” investment in their child. In fact, the parents are, in some real sense, a part of that child.
More importantly, once the fetus is brought to term and becomes an independent being through birth, that child is now morally and legally claimed as the exclusive possession of its parents, unless the parents transfer their right to a third party who then becomes the child’s adoptive guardian. In other words, the child is theirs. Neither the hospital, nor the government, nor the community has a natural claim to this newborn.
It is an observable fact that one or both parents claim the child as theirs, nay, more: sometimes they even act as though they have some sort of limited and temporary “property” claim to their child. This is what they mean when they say this child is “mine.”
This may strike some as a strange if not a troubling claim, but its real-life validation is quickly and easily seen any day of the week in the maternity ward of a local hospital. Just try to take a baby from a new mother’s arms and you will find out very quickly to whom the child belongs by right. It’s also important to note, however, that parents treat this “property” right, unlike all other forms of property, as strictly limited and circumscribed by the rights of the child.
But what could it possibly mean to say that parents who have created and given life to a newborn may claim an absolute and exclusive right—a right of possession sanctioned by law—to said child? More to the point, can it be said in any way that parents have some kind of temporary and limited “property” right to their child?
The Rights of Parents To Their Children
If the answer to these questions is “yes,” or even a qualified “yes,” then the explanation might go something like this.
An individual’s right to his or her child must stand alone in a category entirely different from all other forms of property, including the property right to his house, his land, his car, or his pets. Children are not and cannot be owned or treated, unlike other forms of personal property, as though they were chattel.
The legal status of children relative to other forms of property must be recognized as a totally separate category in the law. In ways limited and circumscribed by the child’s fundamental right to life, parents may and certainly do, however, claim an exclusive dominion to control and direct the affairs of their children as minors.
A parent’s right to his child is defined morally and legally by the principle of exclusivity.
A newborn child belongs exclusively to one set of parents and to no other. This first and fundamental right bars any third party—including, if not most especially, the State—from claiming the child as its own and seizing it by force. The parents’ right to their child means a right of non-interference from others.
In a free society, the doctrine of the State as parens patriae relative to children is, as we shall see, fundamentally totalitarian in nature and therefore hostile to the principles and practice of a free and just society. Children belong to their parents and not to others or to the State.
As creators of the child ex nihilo, there is a very real sense in which parents have a limited liberty right and therefore a limited property right—limited in duration and scope—to that which they have created.
Let us be clear in what we mean here. Parental rights must be understood contextually. The “ownership” claim of a parent is contextually absolute in relation to third parties, but, as we shall see momentarily, it is relative in relation to the child given that the child is also a rights-bearing person.
In this sense, the right of a parent to their child serves as a fence protecting the parents’ right against any form of what the nineteenth-century Abolitionists once referred to as “child stealing.” No third party can assert a claim to someone else’s child.
Our point is illustrated through the following simple but all-too-real hypothetical.
If a government official from the Department of Social Services accompanied by an armed police officer were to turn up at your home unannounced and with no justifiable cause, knock on the door, and say, “We’ve come to take your children, turn them over,” it is entirely natural and proper for you to reject their demand by saying: “No, you can’t have them; they’re my children,” or you might say something such as, “You will take my children over my dead body,” or you might even use considerably stronger language.
In a very real and proper sense, your child is indeed yours and no one else’s. Historically, parents the world over have claimed this right as an absolute vis-à-vis all other parties. This right is not only absolute relative to third parties, it is also inalienable as long as the parents do not act in such a way so as to violate the child’s own rights.
Parental Property Rights Over Their Children
The nature of a parent’s rights to their child must be viewed now from a different perspective. The right no longer serves as a fence to protect as it did relative to all third parties, but instead it now serves as a license giving said parents the freedom to act in a certain context—a context defined by both the interests and rights of the child.
This means we’re now concerned with the relationship between parent and child. We are not concerned with the parent’s right to their child relative to third parties, but with their rights over their child relative to the child’s rights. Since this is a complex topic that mixes rights with responsibilities, I shall have considerably more to say about the rights of children in succeeding essays. For now, though, we say this: parents have rights over their child, but they also have corresponding responsibilities.
Our task is to determine how the parents’ rights-based authority over their child stands relative to the child’s right(s).
Given the rights of parents to their child, their rights and discretionary authority over their child are, and must be, quite broad but not unlimited. The parents’ prerogative authority over their child is defined not only by the procreative rights of the parents, but also by the fact that infants, toddlers, and young children do not have the means to survive on their own. They are completely dependent on their parents or guardians for their survival. Parents therefore have a broadly defined right to determine how they will fulfill their responsibility to nourish and protect their child.
Parents have a moral and a legal responsibility to feed, clothe, and shelter their child, but they may do so as they choose so long as they do not endanger the life of the child. If a parent chooses to feed their child whale blubber, dress them in reindeer skin, and shelter them in an igloo, they may do so by right; if they choose to feed their child crocodile meat, dress them in a loin cloth, and shelter them in a tree house, they may do so by right: and if they choose to feed them foie gras, dress them in Versace, and shelter them in a mansion on the French Riviera, they may do so by right—and in all instances the rights of these parents must be respected.
As a corollary to their right to determine how they will provide sustenance for their child, parents also have the right to restrict the actions of their child in all kinds of ways and the right to compel them to act in various ways. Parents even have a right and an obligation to control and regulate the freedom of their child. In fact, parents have a limited right to use coercion against their child in order to prevent some harm to the child or to bring about some good for the child.
Parents, for instance, may and must regulate the child’s freedom of action in all kinds of ways. Parents have a right to dictate what, when, where, and how a baby, a toddler, or a young child will eat, dress, or play, what books they shall read, and which movies they shall watch. They have a right to control when, where, and with whom their children will associate. Young children are “forced” by their parents everyday around the world to do many things they do not want to do (e.g., going to bed or eating their broccoli), and they are prevented from doing many things they might want to do (e.g., playing on a busy street, near a river or lake, or with a neighbor’s pit bull). Parents of infants, toddlers, and young children use this kind of benevolent and gentle coercion every single day of the year virtually from the moment the child wakes up in the morning to the time they go to sleep at night.
As their children get older, parents have a right to dictate how a child is to be educated morally and intellectually, whether they will or will not go to church, what sports the child will or will not play, and the kind of music they will listen to in the parents’ home. If the parent says, “you shall only listen to classical music in our home” or “you shall only listen to bagpipe music in our home,” the child must accede to the parents’ wishes. If the parent says, “you shall not listen to Elvis Presley, Def Leppard, or Edele in my home,” the child must accede to the parent’s wishes.
It is not the case, however, that parents have an absolute, arbitrary, or unlimited power over their children to do with them as they please. A parent’s temporary jurisdiction over their child is not and must never be absolute or tyrannical.
Parental rights (as well as those of children) must be understood contextually: they are absolute in a certain context and relative or conditional in another. A parent’s right to and over his or her child is absolute relative to the State and to other individuals so long as the parent does not violate the rights of the child. The parent’s right to and over his child is, however, relative to the child and its nature (i.e., to the child’s rapidly changing physical and cognitive context and to the child’s rights).
A parent has a right to limit the child’s liberty in all sorts of ways, but they may not limit or violate the child’s right to life, which is absolute and unalienable. Furthermore, a parent’s right to direct and limit a toddler’s freedom of action is, for instance, virtually all-encompassing when it is six months old but diminishes over time relative to the cognitive and moral growth of the child.
A parent’s right to and over their child does not and must not, however, include the right to physically or cognitively abuse a child. Parents may not inflict lasting physical damage to a child (e.g., maiming or mutilating), nor may they cripple or damage a child’s cognitive processes as in the case of feral children held in confinement.
As I established in my essay on “Education and the Rights of Children and Parents,” there is no right to violate rights.
In sum, the child’s right to life stands paramount over and against the parents’ temporary and limited property right over their child. Parental control of their child is thus limited in both time and scope by virtue of the fact that the child is himself or herself a rights-bearers.
In this regard, parents can only claim temporarily (i.e., until a defined age of majority) and in a defined and limited context (i.e., relative to the rights of the child) the child as a possession relative to all other third parties but a possession of a very peculiar kind, one that bears rights of its own that must not be violated by the parents.
Put somewhat differently, it may be more appropriate to say that parents assume a kind of temporary but conditionally absolute guardianship or jurisdictional authority over their child. To be more precise, the parents have a right—a conditional property right—to be the guardians of the child’s rights. They are the first line of defense in protecting the child’s right to life.
Should the parents fail to protect, or, worse, should they infringe upon the child’s right to life, the parents’ property right in the child is forfeited and may be ceded to or assumed temporarily by the government until a private home or orphanage can be found for the child.
Next week, I shall examine much more closely the rights and responsibilities of parents as they relate specifically to the education of their children.
 This idea was first suggested to me by a former student, Mr. John Lewis from Ohio.