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Childrearing and State Interference:
Toward a Critique of the Current (Im)balance
(The paper is part of my dissertation titled: "What Are the Legitimate
Boundaries for State Interference with Childrearing in a Liberal Regime?”)
Danielle Dalit Levitan1
This article discusses the moral basis for asserting that parents have a
presumptive right to rear their children based on considerations of autonomy,
privacy, and individual responsibility.2 I seek to show that a strong argument in
support of parental autonomy can be derived from the value of personal
autonomy, even in Western cultures in which children’s interests
supposedly take precedence. An obvious difficulty in any attempt to
ground parental autonomy is the involvement of a third party: the child. I
discuss this question, but resist the proposition that state intervention represents
an alternative family structure.3 I suggest that state interference in childrearing is
motivated less by the potential risk of danger to children and more by an
assumption that some parents make poor decisions regarding their children.4
1 Ph.D. in Law candidate at the Hebrew University of Jerusalem. Danielle.levitan@mail.huji.ac.il N.B. This is a preliminary draft. Please do not cite, circulate, or copy without permission of the author. 2 Ferdinand Schoeman, “Rights of Children, Rights of Parents, and the Moral Basis of the Family,”
Ethics, Vol. 91, No. 1. (Oct. 1980), 6–19. 3 Galston argues that two-parent families are best suited for raising children to be law-binding and independent members of their community who thus fulfill their duties as citizens. William A. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State, Cambridge University Press, 1991. 4 There is a presumption that parents act in their children’s best interests, see: Parham v. J. R., 442 US 584, 602. Most parents have the ability to make good decisions regarding their children, especially parents who have interests in and responsibility for the upbringing of their child. Parents should retain a substantial, if not a dominant role in decisions regadting their children, absent a finding of neglect or abuse. Also see: Troxel et vir v. Granville, 530 U. S. (2000) In affirming, the State Supreme Court held, inter alia, that §26.10.160(3) unconstitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it
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However, children do not have a right to best care: they have a right to adequate
care. When care is adequate but sub-optimal, children certainly have an interest
in receiving better care, but they do not have a right in this regard.5 Even if the
state could make better decisions than parents regarding minor children, this is
not what government should be doing.6 The right of adequate parents to parental
autonomy trumps the right of children to best care.
Many people share the intuition that government intervention in family affairs is
acceptable when the family is in crisis.7 Even those who support nonintervention
ideology often withdraw their objections when it comes to children, fearing
abuse or serious neglect. Concern for children is certainly reasonable: children
are vulnerable and must be protected. However, let us consider for a moment the
case of two parents enjoying an intimate relationship with their children who
decide to dissolve their spousal bond. This decision in itself, regardless of the
surrounding circumstances, exposes them to childrearing scrutiny and the
violation of their autonomy and privacy. Parents who only moments ago were
considered dedicated and devoted are now subject to intrusive intervention.8
Given this example, is the intuition that parents have a presumptive right to rear
their children contingent on marital or family status?
In previous centuries the normative model for state conduct regarding the family
was one of nonintervention. The husband was the juridical head of the family,
and as such was entitled to govern the wife and children. Women and children’s
property belonged to the husband and father, including wages and money
found that §26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child. 5 For a discussion about redistribution of children see: Harry Brighouse & Adam Swift, “Parents’ Rights and the Value of the Family,” Ethics 117 (October 2006); Anca Gheaus, “The Right to Parent One’s Biological Baby,” Political Philosophy, Volume 20, Number 4, 2012, 432–55. 6 See Galston’s position on state neutrality and family structure. William A. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State, Cambridge University Press, 1991, 285. 7 I shall argue that divorce or legal separation is considered a sufficient trigger to justify state intervention that would otherwise not be allowed. However, divorce case is merely an important example, the discurse here aimed at parental autonomy in general, divorce will be discussed separately. 8 The definition of state intervention in the family will be discussed below.
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earned. Sexual intercourse between the husband and wife was considered the
husband’s prerogative, as were the family’s living arrangements. In some
instances a father could even recover money from man who had sexual
intercourse with his daughter without his consent.9 None of these circumstances
incurred the involvement of the courts. Today10 many of the laws and policies
have changed 11 and international conventions and domestic laws provide
constitutional protection for children’s rights. States have adopted statutes
allowing courts to intervene with the family to protect the child.
The best interest of the child test is a legal standard usually employed in order to
decide what should be done for a child over whom a court has assumed
jurisdiction. One objection to the test is that by definition it completely ignores
the interest of the parents, despite the fact that they have significant interests at
stake when the state seeks to intervene. Robert Mnookin argues that the best
interest of the child standard requires predictions that cannot be made on a case-
by-case basis and necessarily gives judges too much discretion to impose their
own values in deciding what is best for a child. Any legal test that requires
reliance on the decision-maker’s own values, he argued, invites injustice.12 Two
arguments are raised regarding the best interest of the child test: firstly, that the
broad discretion of judges and welfare officials leads to injustice; and secondly,
that it ignores parents’ interests. The overriding desire to protect children can
ultimately defeat its purpose when applied by means of violating parental
autonomy and promoting interventionist policies. 13 However, this is an
instrumental claim; I argue that the violation of parental autonomy and the
promotion of interventionist policies harm the parent, not only the child. I think
9 Frances Olsen, “Myth of State Intervention,” Journal of Law Reform Vol. 18, 1985, 850. 10 Due to limitations of space, I will confine my discussion here to the developed countries. 11 Frances Olsen, “Myth of State Intervention,” Journal of Law Reform 1985, Vol. 18. 12 Robert H. Mnookin, “Foster Care – In Whose Best Interest” in Onora O’Neill and William Ruddick (eds.), Having Children, Philosophical and Legal Reflections on Parenthood, Oxford University Press, 1979, 179–91. 13 As John Locke writes, when children are born, the parents are, “by the law of nature, under an obligation to preserve, nourish, and educate the children they had begotten. Second Treatise of Government (1690) (Indianapolis, IN: Hackett,1980), Ch. VII, 43. I argue that parental autonomy includes to some extent the autonomy of the child, at least until maturity.
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the time has come to reset the boundaries of state intervention in childrearing
and parental autonomy.
My argument in this article proceeds as follows: in Section One I discuss the role
of parents, scope and content. By parents I refer to persons who have parental
rights and who become parents to the child without violating anyone’s rights
(see the exact definition below.)14 Section Two will be devoted to the argument
for the value of parental autonomy. This section examines what interest is
protected by the supposed right to parental autonomy. My inquiry will be
limited to the right of parental autonomy as it applies to certain personal life
choices and concerns. In Section Three I discuss the legitimate boundaries of state
interference with childrearing. I argue that children have no right to the best
care, but rather to adequate care. I examine the best interest of the child principle
and argue that the state is not entitled to give children “better care” (as long as
they are adequately cared for by their parents). I also discuss the difficulty of
having judges and state officials exercise a discretion grounded on their own
values.
Children’s interests are important. However, this does not justify securing minor
gains in the child’s welfare at the expense of substantial losses in parental
welfare.15
Section One
The Role of Parents
Parents have moral and legal rights regarding their children.16 They are at liberty
to make decisions in the best interests of their children, and they have the right to
14 I adopt Richards approach that parents are persons holding parental rights without violating anyone’s rights, but I discuss the aspect of the bilogical tie and “birth parents.” Norvin Richards, The Ethics of Parenthood, Oxford University Press 2010, 27. 15 This paper is a part of a project. There are further chapters not encoded at this paper that engaged in neutrality and the case of divorce. For a good analysis of the best interest of the child principle see: Jon Elster, “Solomonic Judgments: Against the Best Interest of the Child,” University of Chicago Law Review, Vol. 54, No. 1 1987, 20.
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exclude others from such decision making. These rights decrease in strength and
scope as children acquire their own decision-making capacity, but until the child
reaches moral or legal competence their parents continue to exercise substituted
judgment and surrogate decision making.17 For the purpose of the present
argument, I adopt the following narrow definition of parents: Two persons who
undertake parental obligations by deciding to beget, bear or rear their child by their own
free will.18 Persons who choose to be parents have also to choose what sort of
parents they will be. If the main burden of meeting a child’s interests falls on
parents, then parents need to know which of their children’s interests they must
meet.19 There is no single set of childrearing rules: parenting approaches vary
according to personality, circumstances, the parents’ personal history, and life
choices. Nevertheless, there are clear parental obligations, 20 and there is a
connection between parental obligations and children’s prospects. A parent bears
a limited obligation to order her life around the welfare and development of her
child. The grounds for childrearing obligations (and to some extent parental
rights) cannot be biological alone, but it is far from clear what other specific
grounds can be quoted for holding particular persons liable to rear particular
children.
16 For the unique nature of parental interests see: Jean Bethke Elshtain, “Family, Politics and Authority” from the collection of Children, Parents and Policies edited by Geoffrey Scarre, , Cambridge University Press 1989, 58. 17 Ross, Lainie Friedman, 2002, Children, Families, and Health Care Decision Making, Oxford: Clarendon Press. 18 This is not to belittle any other kind of parenthood. I have adopted a relatively traditional definition of parents here merely due to limitations of scope. Many persons are parents to children whom they neither begot nor bore; adoptive, foster, step-parents, guardians, and others may acquire the rights and responsibilities of parents. However, I shall confine my discussion to the arrangement defined here. 19 The idea of caring for children and parental obligation is discussed at length in: Onora O’Neill, Having Children, Philosophical and Legal Reflections on Parenthood. Oxford: Oxford University Press, 1979, Chapter II, “Caring for Children,” 107–55. O’Neill and William Ruddick assert that parents have a legitimate standing in decisions affecting their children’s lives, and that in order for parents to ensure their child’s best interests, they must have room to maneuver. I adopt this position. albeit with some changes as I shall discuss below. 20 The principles with which I am concerned in this section are normative ones and do not necessary reflect psychological or pedagogic findings.
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In her book Having Children, O’Neil stated that becoming a parent entails an
obligation to prepare a feasible plan for the child’s adequate rearing. Parenthood
is not an unrestricted right: those who are unable or unwilling to rear a child
cannot reasonably choose to procreate, or at least to raise their children.21
Childrearing goes beyond the area of obligation: parents will encounter moral
dilemmas concerning their children that they should resolve. At the same time,
however, it must be noted that parents cannot meet all of their child’s interests;
accordingly, a crucial aspect of parenthood is an ability to know what and how
to choose.22 Parenthood obligations exceed doing whatever is minimally needed
in order for the child to grow and eventually assume an independent life, but
this should certainly be the initial goal. Parental obligations are unlike others in
that transferring or gaining release from the obligations may be harmful and
wrong. Even the child herself cannot waive her claims and release her parents
from their obligations. A very young child has no normative powers at all; even
later, as she gradually acquires such powers, she cannot release her parents of
their duties. The reasons for this include the value of the relationship between
the child and her parents, the emotional bond, the mental dependency, the
financial reliance, legal limitations, and so forth.23 The issue is not merely one of
dependence: the relationship is fiduciary and unequal. Children need parents.
Childrearing includes love, authority, nurture, feeding, educating, keeping
warm, and – I would argue – attempting to keep the child happy. Though many
21 For discussion of becoming parents see: Onora O’Neill, Having Children, Philosophical and Legal Reflections on Parenthood. Oxford University Press, 1979, 25–39. 22 I think that parents who consistently sacrifice their own interests to those of their children may develop a sense of disappointment and hence ultimately be less good parents. The subject of good choices will be discussed at length in the next section. 23 Children have rights protected by the U.N Declaration of the Rights of the Child (Adopted by UN General Assembly Resolution 1386 (XIV) of 10 December 1959). The declaration details material, physical, education, health, and other benefits, thought it is vague regarding the question as to who bears the corresponding duties. It is futile to discuss the best interests of the child without discussing the rights of the particular persons who are best to provide the child with everything she needs. Children I believe, have an interest in their parents being free to pursue other interests. See: Jeffrey Blustein, “Child Rearing and Family Interests” in Onora O’Neill, Having Children, Philosophical and Legal Reflections on Parenthood, Oxford University Press, 1979, 115–22.
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of these aspects can be found in animals, what sets humans apart is that we can
draw conclusions, plan ahead, and reason about what we should do.
Childrearing plays a part in shaping her character; accordingly, practicing good
habits from an early age contributes to the child’s personality and determines her
behavior. Parents are responsible for the development of the right kind of
character in the child. Their parental obligations include teaching good virtues
and developing sensibility and reason, independent thinking, tolerance, and an
ability to cope with whatever the child may encounter in later life. Parents are
not the owners of their children: they must be committed to assisting their
children in becoming persons who lead their own lives. Parenthood also includes
physical care, education, socialization, and the warmth and continuity of the
relationship children share with their parents. Preventing harm, abuse, and
neglect are certainly parental duties of care.24
In tackling this dilemma, we can best begin by formulating a parent-centered
perception that can establish childrearing rights. I rely on two arguments that
ground parental rights in the interests of parents and which, taken together,
seem to offer a broad parent-centered justification. The arguments are presented
by Ferdinand Schoeman,25 Brighouse & Swift, 26 and Anca Gheaus.27 Gheaus
claims that adequate parents have a moral right to keep and raise the baby they
have borne based on the importance of one kind of biological tie, as explained
below.28 Brighouse & Swift describe a right as fundamental if it is owed to a
24 In the United States, for example, various states have enacted statutes permitting the removal of a child from the custody of her (biological) parents in cases of gross neglect or abuse However, lesser infractions of parental obligations often result in state intervention. I argue that such intervention can be more harmful than the ill it seeks to remedy. 25 Ferdinand Schoeman, “Rights of Children, Rights of Parents and the Moral Basis of the Family,” Ethics 91, 1980, 6–19. 26 Harry Brighouse & Adam Swift, “Parents’ Rights and the Value of the Family,” Ethics 117 (October 2006). 27 Both Brighouse & Swift and Gheaus discuss the dilemma of child redistribution. Brighouse and Swift argue that the child-centered view may justify redistribution of children, if all that matters is that children’s interests are met. I object to this logic for many reasons, but due to limitations of space I will not discuss these here. 28 Gheaus, “The Right to Parent,” 432–55. For a discussion of the natural parent preference rule, see generally Donald T. Kramer, Legal Rights of Children, Second Edition, Vol. 1 (New York: Clark,
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person simply by virtue of their being a person, and its justification is grounded
in the benefits it will bring to that person and not to others. They argue that the
parent-child intimate relationship has a distinctive and unique quality.29 I agree that
a parent’s right to rear her child and to have an intimate relationship with her is
fundamental, even if it is conditional. Schoeman argues that a parent’s right to
rear her child in the context of privacy and autonomy stems from the importance
of intimate relationships in general. According to Brighouse & Swift, the essence
of the relationships is different: adults’ intimate relationships differ from parent-
child relationships, in which parents can claim a right. One of the significant
differences between parent-child and other adult intimate relationships is that a
child cannot exit the relationship unharmed. Brighouse & Swift argue that the
intimate relationship between a parent and her child makes a distinctive
contribution to the parent’s flourishing.30 Although Gheaus supports some of
Brighouse & Swift’s views and conclusions regarding the parent-centered
account, she offers a different rationale for their responsibility of care: biological
(birth) parents have a moral right to rear their child, contingent on their being at
least adequate parents. Gheaus rightly argues that biological parents form an
incipient intimate relationship with their child in the prenatal stage. She
emphasizes that pregnancy is a significant stage in forging this relationship, and
that being pregnant and giving birth involve a variety of costs that ultimately
substantiate parental rights. These costs, she asserts, include the actual pain of
Boardman, Callaghan, 1994), 73–8. According to traditional family law rules, children born during the course of a marriage are legally presumed to be the legitimate offspring of the married couple. To challenge this presumption successfully, state laws commonly require the husband to disown the child affirmatively and present evidence in court proving beyond a reasonable doubt that he is not the child’s biological father. Rabbinical courts for example will be reluctant to order paternity testing because of the consequences that may result from such test. A mother thought cannot disown her child born to her. Surrogacy then is not a simple matter, the surrogate woman is the birth “mother” thus, difficult to rule otherwise. 29 Harry Brighouse & Adam Swift, “Parents’ Rights and the Value of the Family,” Ethics 117 (October 2006), 87. 30 They also show that people’s moral interest in parenthing is not enough to ground childrearing rights. See Brighouse & Swift, “Parents’ Rights,” 96–9.
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childbirth, and for pregnant woman – reduced autonomy.31 Many prospective
parents form an intimate relationship with their fetus; if I understand Gheaus
correctly, she argues that this relationship is fostered by the parents’ willingness
to assume the costs of pregnancy and by their actual experience of its burdens.32
Such burdens include health risks, fatigue, nausea, and other common symptoms
that impair the mother’s ability to carry out her daily responsibilities and
diminish her ability to pursue other interests.33 But does it entail a right? Can we
assume that if you bear a cost this means you are entitled to something?
Conversely, if we imagine some technology that overcomes these experiences,
would this then eliminate the attending rights?
Gheaus argued that many mothers bear the difficulties of pregnancy and
childbirth in anticipation of the parenting experience that lies ahead. The
consolation enjoyed by pregnant women, she argues, is that becoming a parent is
worth all the pain and hardship. She concludes that the benefits of pregnancy,
such as the anticipation of the baby, are valuable given the assumption that
begetting suggests rearing, and that the positive aspects of pregnancy are
conditional on the expectation that, at the end of that pregnancy, one will become
a parent.34 Gheaus, if I understand her correctly, describe two related features of
pregnancy that define the birth parents’ rights: a) the physical and emotional
burden and b) the formation of an intimate relationship between the birth
parents and the fetus. Gheaus does not argue that genetic reasons alone sufficient
31 I would emphasize this concept of reduced autonomy as it strikes at the heart of my thesis. I do not consider the mother’s autonomy to be reduced during pregnancy, but rather inclusive, and this inclusion continues throughout childrearing. In other words, from the moment a woman becomes pregnant with a child that she wishes and hopes to rear, she no longer thinks only of herself. Her choices affect both herself and her child and there is something fused about this unique condition. 32 See Onora O’Neill, Begetting, Bearing, and Rearing, in: Onora O’Neill and William Ruddick (eds.): Having Children, Philosophical and Legal Reflections on Parenthood, Oxford University Press, 1979, 124–38. O’Neill argues that the right to bear a child is not unrestricted but depends on having or making some feasible plan for their child to be adequately reared by themselves or by others (25). 33 Anca Gheaus, “The Right to Parents One’s Biological Baby,” Political Philosophy, Volume 20, Number 4, 2012, 447. 34 Anca Gheaus, “The Right to Parents One’s Biological Baby,” Political Philosophy, Volume 20, Number 4, 2012, 448..
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grounds for parental rights. Rather, given a fundamental right to parent in
general, she argues that these two aspects establish a right to raise one’s birth
baby.35 In the next section I discuss the question of an unfettered individual right
to parental autonomy.
Section Two
Parental Autonomy is of Intrinsic Value
Hegel wrote:
“In substance marriage is a unity, though only a unity of inwardness or
disposition; in outward existence, however the unity is sundered in the two
parties. It is only in the children that the unity itself exists extremely, objectively
and explicitly as a unity, because the parents love the children as their love, as
the embodiment of their own substance”36.
My supposition is that parental autonomy can be derived from the value of
personal autonomy.37 I shall assume that there is a moral (and, to an extent, a
legal) right to individual autonomy, and thus attempt to substantiate a strong
argument in support of what I alternately refer to as parental autonomy and
parental freedom.38 This is not a case of splitting hairs: there is a distinction
between autonomy and freedom, childrearing and parenthood. Individual
autonomy refers to the capacity to be one’s own person, to live one’s life
according to reasons and motives that are perceived as one’s own and not those
35 Anca Gheaus, “The Right to Parent,” 446. For further discussion of parental rights based on genetic reasons see: Hillel Steiner, An Essay on Rights, Oxford 1994 (Blackwell publication). 36 I would argue that this passage applies equally to the relationship between one parent and her child. Georg Wilhelm Friedrich Hegel, Philosophy of Right, T.M. Knox, trans. (Oxford University Press 1967), 117. 37 Parental autonomy is problematic in the sense that there is a third party, the child. When family is in crisis, it can be argued that if two parties fight for the child and they equal normative force then it follows that somebody has to decide who will be the custodian. If this is indeed the case it follows that we could use the welfare of the child as the primary criterion for it. This is a part of a project and will be addressed separately in a chapter devoted to the issue of divorce. 38 David Archard argues that both parental rights and responsibilities are embodied in parental autonomy. See: Archard, David, 1990, “Child Abuse: Parental Rights and the Interests of the Child,” Journal of Applied Philosophy 7, 2004, 183–94, and Children: Rights and Childhood, 2nd ed., New York: Routledge, 2010. See also “The Obligations and Responsibilities of Parenthood,” in Archard and Benatar, 2010, 103–27.
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of others. Parental autonomy is grounded in the values of individual autonomy
and argues that intervening in childrearing involves interference with the parent
and her choices. The presumption in favor of liberty, as Feinberg posited,
requires “that whenever a legislator is faced with a choice between imposing a
legal duty on citizens or leaving them at liberty, others things being equal, he
should leave individual free to make their own choices.”39 Having established
this principle, it remains undeniable that power can rightfully be exercised over a
parent in order to prevent harm to their child. Parental autonomy assumes
certain mental and physical abilities and the availability of an adequate range of
options; it may also be regarded as positive freedom.40 A person is autonomous if
she determines the course of her life by herself. When the person is a parent, her
“course of life” includes (as a vitally important component) the lives of her
children, though this inclusion is conditional and limited rather than absolute.
My goal in this work is to delineate the borders of the spectrum within which
parents have a moral claim to be at liberty, that is, free of legal and moral
coercion. 41 The concept of parental autonomy goes beyond the negative
obligation of non-interference. Others should refrain from coercion or
manipulation. If they wish to help, they can secure the background conditions
that enable a person to be autonomous. Insofar as childrearing is concerned,
parents should be “self-governing.” This includes such aspects as inner cognitive
capacities and stability; the capacity to form personal attachments and maintain
intimate relationships; and an adequate range of options from which to choose.
Their choices may not always be good ones, but autonomy is blind to the quality
of the selected options. Those who object to parental autonomy or support the
doctrine of state intervention may argue that choosing a bad option worsens the
parent’s life and that of her child. Accordingly, preventing bad options may deny
39 Joel Feinberg, “Harm to Others,” Oxford University Press 1984, 9. 40 I follow Raz’s doctrine of autonomy. Perfectionism and forms of neutrality are significant to this project and will be discussed in greater depth in the following chapters of the entire project. See Joseph Raz, The Morality of Freedom, Clarendon Press 1986, 369–431. 41 I will follow Feinberg’s idea of a “liberty-limiting principle.” Feinberg, Harm to Others.
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the parent valuable autonomy, but protects the child (and perhaps also the
parent) from bad and potentially harmful choices. When parents fail, it is
reasonable for the state to protect the child from abuse or serious neglect.42 It is
acknowledged that such policies constitute state intervention in childrearing, but
this intervention is perceived to be justified. Some even assert that when the
family relationship has broken down, so has any reasonable claim to family
privacy43 (I discuss the boundaries of state interference in Section Three).
There are two opposing kinds of theories of childrearing accounts that include
parental rights and responsibilities: a) child-centered and b) parent-centered. The
position presented by Brighouse & Swift, and more forcefully by Ferdinand
Schoeman, argues that parenting is a project with goods that cannot be obtained
through other activities.44
I associate parental autonomy with individual wellbeing, and the value of
childrearing as more than utilitarian interest. I assume that a desire to be
involved in or contribute to something “larger or more important than oneself”45
is a quality needed for and often developed by parenthood. Most normative
parents, I believe, act in a way that will benefit their children, albeit not
necessarily in the optimum manner; at least, they believe themselves to be acting
in such a manner.46 Susan Wolf analyzes a view of a meaningful life, an aspect I
would argue many parents attribute to the parenthood experience and/or to the
42 Raz writes about something of value: “the fact that the state considers anything to be valuable or valueless is no reason for anything, only its being valuable or valueless is a reason.” A similar principle applies, I would argue, to the concept of “bad decisions.” Raz, The Morality of Freedom, 408–12. 43 Frances Olsen, “Myth of State Intervention,” Journal of Law Reform Vol. 18:4, University of Michigan 1985, 840. 44 Ferdinand Schoeman, “Rights of Children, Rights of Parents and the Moral Basis of the Family,” Ethics 91, 1980, 6–19, and Brighouse and Swift, “Parents’ Rights,” 80–108. 45 Susan Wolf discuses the concept of a meaningful life and offers an interesting view of human motivation for personal fulfillment or a fulfillment life. See: Susan Wolf, Meaning in Life and Why It Matters. 46 This invites the obvious objection that thinking you are acting in your child’s best interest is not the same as acting in her best interest. I argue that a poorer parental decision is not enough to justify the violation of parental autonomy.
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actual existence of their children.47 Regarding the concept of meaningfulness,
Wolf explains that two conditions must be met: “a) the subject finds fulfillment
and b) contributes to or connects positively with something the value of which
has its source outside the subject.”48 Parenthood may at least partly be associated
with both these conditions, though more so with the second. When done
“properly,” parenthood embodies individual flourishing and success.49 It does
not necessarily embody pleasure, though this may certainly also enter into the
equation. It is worth highlighting two distinct features of parenthood in the
context of the creation of an obligation: 1) parenthood is unexpected; 2)
parenthood is about someone else – the child. Normally, when a person
undertakes an obligation, she has a fairly clear idea of what she is committing
herself to and whether she can fulfill that obligation. Parenthood is unexpected
in that it is difficult, if not impossible, to anticipate the extent of both the
responsibility and the gained personal value in advance. Other things being
equal, parenthood should be selfless but not self-sacrificing, generous but not
devoted exclusively to the child’s interest. Parents can and will make poor
decisions and such decisions may harm the child. However, subsequent
interference may not only cause even greater harm to the child (an instrumental
and child-centered claim) but also harms the parent. In her article “Mothers,
47 Wolf uses the myth of Sisyphus as an opposite example to a meaningful life. I am not sure that I agree with this analogy, but her idea of meaningfulness is interesting therefore will be discussed with regard to parenthood. I must emphasize, however, that meaningfulness cannot be a condition in the justification of non-interference. Susan Wolf, Meaning in Life. 48 For “The larger-Than-Oneself View and the Bipartite View,” see: Susan Wolf, Meaning in Life, 20. 49 For the notion of parental flourishing and success see Brighouse & Swift, “Parents’ Rights,” 95: “Through exercising these capacities in the specific context of the intimately loving parent-child relationship, a parent comes to learn more about herself, she comes to develop as a person, and she derives satisfactions that otherwise would be unavailable. The successful exercise of this role contributes to, and its unsuccessful exercise detracts from, the success of her own life as a whole. This explains why “success or failure in the task [of parenting], as measured by whatever standards we take to be relevant, is likely to affect profoundly our overall sense of how well or badly our lives have gone.”
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Citizenship, and Independence,” Iris Young suggests that we distinguish two
meanings of independence (primarily with respect to parents): autonomy and
self-sufficiency. Autonomy she argues, is the ability to make choices about one’s
life and to act on those choices without having to obey others, meet their
conditions, or fear their threats and punishments. Self-sufficiency means not
needing help or support in meeting one’s needs and carrying out one’s life
plans50. This distinction is important; this is not a case of merely acknowledging
moral values, but rather one of protection. The state ought not to interfere with
parental choices and opinions simply because it can.
In the next section I discuss the moral and legal boundaries of state interference
with childrearing.
Section Three
The Conflict Between Authority and Parental Autonomy
“There is the deep-felt conviction that it is not within the rights of any person to
use the machinery of state in order to force his conception of the good life on
other adult person,” writes Joseph Raz.51 The anti-perfectionist principle claims
that the promotion of ideals of the good, thought worthy in themselves, are not a
legitimate matter for governmental action.52 Wolff stated that a state is a group of
persons who have and exercise supreme authority within a given territory or
over a certain population.53 One of the questions raised in this context is whether
there is a limit to the range of affairs over which a just state has authority.
Childrearing, I would argue, is a classic example of an affair that lies largely
beyond the state’s purview. Before discussing the affinity between the state and
50 Iris Young, “Mothers, Citizenship, and Independence: A Critique of Pure Family Values,” Ethics 105, 1995, 549. 51 Raz, The Morality of Freedom, 110. 52 The doctrine of political neutrality is relevant to my project, yet the scope of this paper is limited. A chapter in my project is devoted to anti-perfectionism and the idea of a minimal state. Robert Nozick, Anarchy, State and Utopia, Basic Books, Inc. 1974. 53 Robert Paul Wolff, In Defense of Anarchism, Harper Torchbooks, 1970.
15
the family (and the concept of “family” as distinct from the “parent-child
relationship” deserves separate discussion), it is worth adding a few words
regarding the justification of authority.
The notion of authority is legitimate only if there are sufficient reasons to accept
it, that is sufficient reasons to follow its directives regardless of the balance of
reasons on the merits of such action.54 The metaphor of the “surrender of
judgment” used by many political philosophers regarding the justification of
authority is explained by Raz as an acceptance on the part of the subjects that
they should obey even if their personal belief is that the balance of considerations
in the specific instance leans against performing the required act.55 Acceptance of
authority, he explains, can be an act of identification with a group because it can
regard as expressing trust in an institution in authority and a willingness to share
the fortunes of the group that are to a large extent determined by an authority. A
factor mitigating against the acceptance of authority is the intrinsic desirability of
a situation in which people lead their own lives by their own choices. Legitimate
authority requires that the state have the power to compel those subjects who do
not wish to acquiesce. To say that a state has authority in the normative sense is
to say something normative about the relationship between the state and its
subjects. This is the kind of relationship I will concentrate on in what follows.56
In democratic states, the government implements laws that have been commonly
agreed upon. It possesses rightful authority guided by moral principles in its
lawmaking. Authority is granted to those who occupy official positions, such as
54 For the justification of state authority, see Raz, The Morality of Freedom, 39–40. 55 See: Joseph Raz, Practical Reasoning, Oxford University Press, 1974; Richard E. Flathman, The Practice of Political Authority, Chicago 1980, 90; R.B. Freidman, “On the Concept of Authority in Political Philosophy,” Richard E. Flathman (ed.), Concepts in Social and Political Philosophy, Macmillan, NY, 1973. See also H.L.A. Hart, Essays on Bentham, Jurisprudence and Political Theory, 1982. Oxford University Press, 253. 56 It may be worth adding a comment regarding my reluctance with state authority. I can see Wolff’s point that, in states, a voluntary submission of people to institutional arrangement can be directly contrary to their interest. I am not sure that anarchism and neutrality is the way to go, but it is worthy of discussion. I follow Raz’s view on authority and justified power as I argue below. See: Wolff, In Defense of Anarchism, and Robert Nozick, Anarchy State and Utopia, Basic Books Inc., 1974. See also Joseph Raz, The Morality of Freedom, Chapter 3.
16
judges and social workers (those in semi-official positions such as teachers and
kindergarten nurses can also be included). The basic idea behind the democratic
conception of legitimate authority is that when there are disagreements among
persons about how to structure their shared world together, the way to choose
the shared aspects of society is by means of a decision-making process that is fair
to the interests and opinions of each of the members. Ann L. Alstott’s view of the
role of parents in a fair society is interesting in that it regards parenthood as a
public concern rather than a personal endeavor. Alstott claims that parenthood is
not a private project that some individuals within society choose to participate and
others reject, but rather the legitimate subject of state regulation. She emphasizes
that society is indebted to parents for providing their children with continuity of
care; their responsibility commands “do not Exit.”57 In other words, every child
needs a parent who will never leave. Alstott’s view, as I understand it, is that
childrearing is a public good that serves society. Society seeks to protect the life
chances of every person and therefore cannot be indifferent to the conditions of
childrearing. The responsibility ought to be shared by each member. Parents
should be responsible for costs that reflect their personal choice in childrearing,
but the childless should bear some responsibility for ensuring that each child has
access to the publicly defined conditions of autonomy. Although I regard
childrearing as an intrinsic good, I am not sure I agree with this account; at the
very least, I believe it should be limited. This reasoning may not concord with
the argument for parental autonomy and freedom from state intervention.
According to Alstott, a fair society ought to take measures to lighten the
autonomy burden of childrearing from their parents. 58 That is, considering
childrearing and perhaps parenthood a public affair. I acknowledge that there
ought to be state assistance concerning the wellbeing of children, there is near-
57 Continuity of care according to Alstott is an intensive, intimate care that humans need to develop their intellectual, emotional, and moral capabilities, a care that is expected of parents to continue until the children reach maturity at the age of eighteen. Anne L. Alstott, “What Does a Fair Society Owe Children -- and Their Parents?” in her book No-Exit, Oxford University Press, 2004. 58 Anne L. Alstott, “What Does a Fair Society Owe Children -- and Their Parents?”
17
consensus on children’s need for continuity of care, but I reject the idea of
communal responsibility, public duty or something of the sort. Childrearing I
argue is more of a private affair. My objection to Alstott’s argument is only partial.
I agree that parents have a non-exit duty towards their children, but the
inviolable nature of the relationship, for many parents, may include the
unconditional love a parent feels and receives from her children (especially in the
early years), the absolute trust, intimacy and pride a parent takes in her child. For
some parents it gives a sense of continuity. I object however, to the idea that
society ought to share parental responsibility for two reasons: 1) Demanding
state assistance (by each member of society, though I am not sure to what extent)
with childrearing regardless of the circumstances may violate parental autonomy
2) the role of parents is not only to produce good citizens. While the latter
assertion requires further discussion and goes beyond the scope of this article, I
agree that children must be prepared for the rigorous demands of democratic
citizenship by the moral and intellectual instruction provided by their parents,
“the first and foremost educators in any society.” 59 There is a public interest that
children will not become criminals nor helpless, dependent on state welfare.
However, parents have and raise children for personal reasons, and the
“territory” of parent-child intimate relationship should remain private.60
It is accepted that parents have moral and legal rights with regard to their minor
children. Assuming that parents rightfully exercise authority over their children,
and that parents have a right to parental autonomy, the question is: to what
extent? And do parental failings justify automatic and immediate state
intervention? American courts have held that the state has a “sovereign power of
59 Eileen M. Hunt, “The Family as Cave, Platoon and Prison: The Three Stages of Wollstonecraft's Philosophy of the Family,” The Review of Politics Vol. 64, No. 1: 81-119. Hunt reviews Mary Wollstonecraft (1759-1797) interesting view of the family and the role of parents. Wollstonecraft wrote about the role of parents in the society in which they ought to educate their children towards a democratic citizenship. She acknowledged hierarchy but also reciprocity in the parent-child relationship and argued that it is in the child’s best interest to obey her parents. 60In the introduction to her book “In Their Best Interest? The Case Against Equal Rights for Children,” Laura M. Purdy cites Jean Bethke Elshtain, who notes liberals’ discomfort with the apparent implications of their view: “They sought to justify contractarianism in the public realm and engaged in discursive maneuvering to avoid its implications in the private.”
18
guardianship” over minors under the doctrine of parens patriae. Justice Frank
Murphy61 argued that the state is concerned not only with the immediate health
and welfare of children but also with “the healthy, well rounded growth of
young people into full maturity as citizens…” Parents may be free to become
martyrs themselves, but it does not follow that they are free in identical
circumstances to make martyrs of their children. In a different case, the US
Supreme court ruled in favor of Amish parents against their children’s right to
education, which is compulsory in the state of Kansas. The US Supreme Court
upheld the Wisconsin Supreme Court’s ruling that the compulsory school
attendance law to the Amish parents violates their interest in determining the
religious upbringing of their children. The parents’ rights outweighed the claim
of state in its role as parens patriae.62 Feinberg claims that both parents and the
state shoulder a similar burden of care for children, that is requiring the same
sorts of reasons for interference. He argues that the task of protecting children
rests jointly on the state and the parents as cooperative partners. I disagree. The
good of children should be at their parents’ discretion: parents should be
responsible for the interests whose fulfillment will constitute the child’s own
good. A parent should be free to transmit her own values, ideals, morals, and so
forth to her child. She is entitled to shape the environment that will influence her
child, subject only to minimal standards of humanity. 63 The state should
intervene only when parents fail to protect their children. The substitution of the
state for the parents’ runs the risk of being self-defeating.
Although the law presumes to uphold the family, it has in modern times
increasingly intervened between parents and children. State interference in
childrearing started with the abolition of child labor and continued through
compulsory education and health care within schools. The state reduced the level
61 Prince V. Massachusetts, 321 US 158 (1944), at 168, 170. 62 Wisconsin v. Yoder, et al. 406 US 205 (1972), 209–16. 63 Joel Feinberg, “The Child’s Right to an Open Future,” in: William Aiken and Hugh LaFollette (eds.), Whose Child? Children’s Rights, Parental Autonomy and State Power, Littlefield: Adams & Co. 1980, 124-154.
19
of cruelty to children and raised the general level of physical health and
intellectual attainment. If children arrived at school showing signs of harmful
behavior, parents were likely to suffer punitive consequences. 64 Yet some
political philosophers argue that the law has ironically become one of the
instruments that have broken the institution of the family.65
Modern family law is enforced through threats of legal consequences: 66
substantial sanctions will be imposed on parents who act against their child’s
best interest. The use of legal coercion by society requires justification. The
problem is not abuse and neglect that children must be protected from, but
rather the indeterminacy of the best interest of the child standard. Parents have a
moral duty to refrain from harming their children even if there was no
equivalent legal duty. State intervention in childrearing based only on what is
considered to be in the child’s best interest is unjust. William Ruddick suggests
that family law derives from attempts to remedy parental failings.67 The question
is not whether it is morally justifiable to enforce parental behavior as such, but
which morals may be enforced.68 Let us suppose that the kind of morality it is
justified to enforce relates to certain rights enjoyed by children. This could refer,
for example, to Joel Feinberg’s concept of children’s rights-in-trust: a child’s right
to an open future. That is, a right to have future options kept until the child is
64 The question of whether the enforcement of morality is morally justified cannot be pursued here. I assume that a law that prohibits abusive behavior towards children is morally justified. For further discussion on the enforcement of morality see: H.L.A. Hart, Law, Liberty, And Morality, Stanford University Press, 1963. 65 For an interesting survey of state intervention within families, based on economic and marriage status since the early nineteenth century, see: Bertrand Russell, Marriage and Morals, Liveright Press, 1970. 66 For a discussion of law as coercive order see: H.L.A. Hart, The Concept of Law, Clarendon Press, 1994, Chapters II and IV. 67 Onora O’Neill and William Ruddick, Having Children, Philosophical and Legal Reflections on Parenthood, Oxford University Press, 1979, 123–38. 68Rousseau, for example, contends that the father “owes” care to his children. John Locke claims that parents are “under an obligation to preserve, nourish and educate the child they had begotten” and in this century, Schoeman refers to the “moral basis” of the family, and Susan Moller Okin argues that the distribution of rights and responsibilities within families should be guided by the moral ideal of justice. See: Laurence D. Houlgate, “What Is Legal Intervention In the Family? Family Law and Family Privacy,” Law and Philosophy 17, 1998, 141–58.
20
fully formed adult, capable of deciding.69 Even if these rights may conflict with
certain parental rights, parents are nevertheless responsible for ensuring their
application.
I examine these foundations in the following two parts of this section. The first
part considers the argument for the best interest of the child standard. I reject this
approach on the ground that while children deserve the best care, they do not
have a right to this. Parents who provide adequate care, even if this falls short of
“best parental care,”70 should be protected from wrongful intervention71 in
childrearing. The second part explains the argument that the use by judges and
state officials of discretion grounded in their own values may constitute an
unjustified violation of parental autonomy. Russell made a good point regarding
the long-term effect of the involvement of state officials.72 He argued that
administrators of institutions for children regard human beings not as ends in
themselves but rather as material for some kind of construction. They appreciate
uniformity and leave no room for those who cannot conform yet have the
greatest potential for personal growth and development.
The Best Interest of the Child
When the best interest of the child test is applied, the conflict is typically between
the parents’ right to childrearing in keeping with their own values, on the one
hand, and the child’s (protected) personal interest of health and welfare or
autonomous rights, on the other. The nature of this conflict is changed when the
interest of society or the child is represented by the state. There is a great deal of
uncertainty surrounding the assessment of the best interest, whereas the damage
69 Feinberg, “The Child’s Right.” 70 In California, for example, children are removed from their home and can be held in detention hearing and state custody for weeks waiting for petitions to be filed and judicial review to be made due to policeman’s “reasonable cause for believing” the child is neglected. See Cal. Welfare & Institutions Code Sec 625, 631 and 632. Needless to say no form of neglect or abuse can fall under what I refer to as adequate care. 71 State intervention means that the state enforces by law a particular moral judgment that it has made about parental behavior in families. 72 Bertrand Russell “Marriage and Morals,” Liveright Press, 1970, p 218.
21
done to children and their parents by litigation or the intervention of state
officials are hardly open to doubt. The role of judges in deciding what is best for
a child means putting themselves in the position of the “wise, affectionate and
carful parent”73 at best. This test is applied when a decision regarding what
should be done for a child over whom a juvenile court has assumed jurisdiction.
Indeed, it is sometimes used to decide whether jurisdiction should be assumed.
Nevertheless, in recent years, the best interest of the child approach has come to
dominate the public realm. Schools, kindergartens, and other institutions base
their activities on what they refer to as the child’s best interest. The negative side
of the expansion of the best interest concept is that laws that should be used to
hold parents or legal guardians liable for deliberate or malicious conduct
towards their children have mutated into guidelines on education and
childrearing policies and decisions based on the personal values of those in
official and semi-official positions. To say that the state intervenes means that the
court enforces by a specific family law a moral judgment that it has made about
ideal parent-child relationships. In justifying their professional opinion, officials
and semi-officials often explain that their decision/recommendation is in the
child’s best interest. For example, when a child is disruptive in kindergarten
class, the teacher can demand that the parents undertake an ADHD test. Even
when such recommendations lack a binding legal character, parents are likely to
acquiesce due to their fear of being found negligent. Neglectful parents are
neither fined nor punished by the court, but are deprived of the degree and kind
of control over their child that they had prior to the court-ordered disposition. 74
This is the loss of parental autonomy. It seems to me that institutions sometimes
treat parents and children in the same way as legal arbitration. They cannot force
parents to accept their “recommendations,” but in the spirit of the best interests
73 Justice Benjamin Cardozo in Finlay V. Finlay, a decision involving a dispute between parents over who should have custody of the children. This test is applied today in all sorts of children related proceedings. 240 N.Y. 429-433, 34, 148 N.E. 624, 626 (1925). 74 Laurence D. Houlgate, “What Is Legal Intervention In the Family? Family Law and Family Privacy,” Law and Philosophy 17, 1998, 141–58.
22
of the child, parents are “forced” to comply. The difference is that the element of
“agreeing to be bound” found in arbitration is in this case not based on consent
and good faith, but rather on fear of the outcome: fear that the institution will
report the parents to social services. Although parents are responsible for their
children, intervention policies become normative policies. Wrongful failure to
intervene in the family can result in an injured child. There are reasons for state
intervention, but this does not necessarily mean that it is always justified.
In cases of family conflict, for example, the ability of courts to make judgments
regarding parental fitness when both parents are deemed equally good is limited
(Decisions in neglect and abuse cases rightfully focus on the child rather than on
the parents’ legal rights. This obliges the judge to find out as much as possible
about the child’s circumstances and the parents75). The benefit for the child from
being with one parent rather than the other is rarely substantial. But the pain
created by the intervention process is devastating regardless of the consequences.
These are not however lines of reasoning that have been much followed. Instead,
courts and state officials apply their interpretation of the best interest of the
child, as minimal (if at all) as its benefit may be, often disregarding the parent’s
personal morality. The best interest of the child is the value guiding government
decisions. Concern for parents is rarely acknowledged in family disputes: the
best interest and rights of children are primary and only concern. For example, in
some cases of custody disputes the judge may lean towards one parent. But even
if she is confident that the benefit for that parent is greater than the loss for the
child, custody will be awarded to the parent who better serves the best interest of
the child. The judges’ decision must accord with the child’s best interest rather
than those of her parent. My argument is that the interest of parents should not
be a secondary consideration. It is important to note two key features of the test
of the child’s best interest. Firstly, this principle is unjust toward the parents.
75 For a careful analysis of the best interest of the child test in cases of child placement (removal from parental custody) see: Robert H. Mnookin, “Foster Care – In Whose Best Interest?” 43 Harv. Educ. Rev 599, 1973.
23
Children do need special protection, but their interests do not trump those of
their parents (the state is not entitled to guarantee better care.76) Secondly, judges
and state officials exercise discretion on the basis of their own values. Since their
values may differ from those of the parents, this constitutes an unjustified
violation of parental autonomy.77
The devotion of parents toward children is treated far more lightly given the
present notion of the best interest of the child as principle enforced by the state.
Children have an interest in being adequately reared, but this does not mean that
children have a right to every aspect that is in their interest. Parents’ obligation is
to provide their children with an adequate care. This cannot be founded upon
fear, prohibition, and state interference. Caution must be exercised in imposing
sanctions on parents regarding the rearing of their children. One of the important
features of the parent-child relationship is respect for parental autonomy
together with intimacy. Children’s rights rhetoric that isolates children’s interests
as the most morally valuable fails to recognize the validity of parent-child
intimate relationships and parents’ autonomous childrearing interests. States
define the family and sets roles within the family. Law regulates marriage and
the rights of parents with respect to their minor children are minutely
76 Jon Elster, “Solomonic Judgments,” and Mnookin, “Foster Care-In Whose Best Interest?” Both Elster and Mnookin attack the principle of the best interest of the child, arguing that this concept is far too vague to determine legal decisions. For an opposing view see: Joseph Goldstein, Anna Freud, Albert J Solnit who wrote three volumes on the subject. They recommend that custody disputes be decided swiftly, irreversibly, and without granting court-imposed visiting rights to the noncustodial parent: Vol. I, “Beyond the Best Interest of the Child,” The Free Press (1973); Vol. II, “Before the Best Interest of the Child,” The Free Press (1979) and Vol. III, “In the Best Interest of the Child,” The Free Press (1986). Volume II is most relevant to our discussion, though all three volumes discuss child placement. 77 I borrow the following examples of parents’ complaints of wrongful interventions from Laurence D. Houlgate in his paper “What Is Legal Intervention In the Family? Family Law and Family Privacy,” Law and Philosophy 17, 1998, footnote 21: Complaints of a parent whose children have been removed from her home by court order because she is a single mother living with her boyfriend or a lesbian living with her lover in the presence of her children. Reaction to state intervention in the family is also seen in complaints of parents who do not want their children taught certain subjects in school. Houlgate described a group called the Coalition for Parental Responsibility whose attempting to get state legislatures and the US Congress to strengthen the rights of parents to control their children’s education. Their proposal is called the Parental Rights Amendment. It reads: “The rights of parents to direct the upbringing and education of their children shall not be infringed.”
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determined. There are three kinds of interest, those of the parent, those of the
child and those of society. The law regulates who is married to whom and who
shall be considered the child of whom. Family law is any law that concerns a
person by virtue of her status as a family member. It is when the state enacts and
enforces specific family laws that we say that it has a policy of state intervention
in the family. Intervention means that the court enforces by a specific family law
a moral judgment it has made about ideal parent-child relationships.78
Adequate Care versus Best Care
Parents are empowered by the state. The state directly authorizes parents to act
in the name of the child. Hence, it is reasonable for the state to promote
particular ends and goods (including some in the sphere of family life and child
welfare). However, it is wrong for the state to encourage, for example, particular
forms of families and discourage others on the grounds of the child’s best
interest.79 As noted at the beginning of the paper, children have a right to
adequate care. When care is adequate but sub-optimal, they have an interest in
receiving better care, but they do not have a right of that kind. Even if the state
could make better decisions than parents regarding minor children, this is not
what government should be doing. Iris Young argues against the position of
Galston80 that favors two-parents families over other kind of families. The state,
she asserts, can properly intervene in or punish particular actions or inactions
within families, especially violent and serious willful neglect, but this is quite
different from punishing or favoring families based on their composition
alone.81According to Galston two-parent families are best for children, while
78 Laurence D. Houlgate, “What Is Legal Intervention In the Family? Family Law and Family Privacy,” Law and Philosophy 17, 1998, 141–58. 79 This argument is similar to the redistribution of children argument that has been discussed much in the literature. The fact that better parent are available for a certain child, does not justify taking that child from her adequate biological parents. The best interest of the child is a) cannot justify such action and b) better parents does not necessarily mean better life for the child. 80 William Galston, Liberal Purposes, Cambridge University Press, 1991 (Chapters 1-7). 81 Iris Young, “Mothers, Citizenship and Independence: a Critique of Pure Family Values,” Ethics, 105, 1995, 535–56.
25
children raised in separate homes are liable to suffer poverty. He even cites Karl
Zinsmeister,82 who blames separate parents raising children for drug abuse, the
education crisis, teenage pregnancy, and juvenile crime among children.
Needless to say, I agree in principle with Young’s position: single parenting (or
divorced parents raising children separately) is not the reason for child
detritions: family or other crisis is.
Even responsible parents do not always do what is right, but they should not
abandon the attempt to ascertain what is right. Wolff argued that being able to
choose how to act makes a person responsible; merely choosing is not in itself
enough to constitute taking responsibility for one’s action. Assuming
responsibility involves attempting to determine what one ought to do.83 The
important aspect, I argue, is that parents themselves must be the judges of such
moral constraints. Parents are not subject to the will of others, with the exception,
in certain cases, of their child.
State officials’ discretion and the use of personal values
Reliance on the individual value judgments of state officials is dangerous and
invites injustice. At the very least, such decisions cannot be consistent since they
are based on the personal values and morals of different individuals (judges,
social workers, and so forth). Moreover, these judgments may be inconsistent
with or even diametrically opposed to the parents’ moral premises. The decisions
of state officials regarding childrearing introduce personal values into the
process and leave considerable scope for class bias. Judges’ attitudes can affect
the result of court proceedings.84 State officials holding “educational authority”
with respect to children can judge parental behavior as immoral based on their
own prejudice. They can decide that a certain conduct is wrong without any
inquiry into damage or potential harm to the child.85 Judges and social workers
82 Karl Zinsmeister, “Raising Hiroko,” The American Enterprise 1,2 1990. 83 Wolff, In Defense of Anarchism, 12. 84 Robert H. Mnookin, “Foster Care – In Whose Best Interest,” 191. 85 Re Anonymous, 37 Misc. 2d 411, 238 N.Y.S. 2d 422, 423 (Fam. Ct. Rensselaer County, 1962).
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can declare children neglected because they reject the parents’ lifestyle. A social
worker visiting a home due to divorce proceedings and an accompanying
custody dispute may make her decision as to whether or not there is neglect,
based on her own set of values, and these may differ radically from those of the
parents. In practice, the standard of the child’s best interest is often based on the
state officials’ own value of the family and what they consider should set a moral
example for children. The problem is that these are not their children. Parents
should determine moral standard for their childrearing. As we have seen in this
article, legitimate and vital concern for children’s welfare has expanded into a
level of interference in parenting that is morally questionable and raises more
dilemmas than it resolves. The definition of neglect cannot be “a different moral
standard.” Further study and inquiry are needed as we seek to redress this
imbalance.
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