The Right to Parent One's Biological Baby

Journal of Political Philosophy

Volumn 20, Issue 4, 2012, Pages 432-455

  Gheaus, Anca ^a  

^a ERASMUS UNIVERSITY ROTTERDAM   (Netherlands)

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EID: 84869085507     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2011.00402.x     Document Type: Article

References (45)

1. I should add 'and adopted'. I leave adoption out for now, for the sake of simplicity, but I will briefly discuss it in the last section of the article, after I give my positive account of people's right to parent.
2. Henceforth I use 'rights' without further specification to refer to moral rights.
3. For this interpretation, see the editors' introduction to The Moral and Political Status of Children, ed. D. Archard and C. Macleod (Oxford: Oxford University Press, 2002), pp. 1-15. See also Robert Goodin, 'Responsibilities for children's well-being', No Time to Lose: The Wellbeing of Australia's Children, ed. S. Richardson and M. Prior (Carlton, Vic.: Melbourne University Press, 2005), pp. 60-82.
4. Aristotle, 'Nicomachean ethics', The Complete Works of Aristotle, ed. J. Barnes (Princeton, NJ: Princeton University Press, 1984), 5. 6. 1134b.
5. Robert Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974), pp. 288-9, argues that John Locke's account of legitimate property acquisition by mixing one's labour in the creation of what is to be owned commits Locke to some sort of child ownership model.
6. Robert Nozick, The Examined Life (New York: Simon & Schuster, 1989), p. 28.
7. Susan Moller Okin provides an analysis of the relationship between parents and children entailed by Nozick's libertarianism as being necessarily one of property. See Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1989).
8. See, for example, the influential argument developed by Tamar Schapiro, 'What is a child?'Ethics, 109 (1999), 715-38.
9. Okin's Gender, Justice and the Family was meant as a (radical) criticism to libertarian philosophy in general, and hence also to the private ownership over children model. For more recent critical work on this, see Daniel Engster, 'The place of parenting within a liberal theory of justice: the private parenting model, parental licenses, or public parental support?'Social Theory and Practice, 36 (2010), 233-62. However, some contemporary philosophers, such as a Hillel Steiner, believe that parents have an (encumbered) ownership right over their biological children. See Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 237-48. Moreover, the conception of children as private property is still influential in everyday parental practices. For this last point, see Hugh LaFollette, 'Licensing parents revisited', Journal of Applied Philosophy, 27 (2010), 327-43 at pp. 341-2.
10. Samantha Brennan and Robert Noggle, 'The moral status of children: children's rights, parents' rights, and family justice', Social Theory and Practice 23 (1997), 1-25. Sarah Hannan and Richard Vernon, 'Parental rights: a role-based approach', Theory and Research in Education, 6 (2008), 173-89.
11. See: David Velleman, 'Family history', Philosophical Papers, 34 (2005), 357-78. For criticism, see Sally Haslanger, 'Family, ancestry and self: what is the moral significance of biological ties?'Adoption and Culture, 2 (2009), 91-122.
12. Sally Haslanger, Family, ancestry and self: what is the moral significance of biological ties?'Adoption and Culture, 2 (2009), 91-122.
13. Engster, 'The place of parenting within a liberal theory of justice', suggests that a child-centred argument for allowing parents to keep their biological babies is that otherwise pregnant women would put less effort into making sure their pregnancies go well. He also refers to some evidence that non-biological parents are more likely to abuse their children than biological ones.
14. And some philosophers, such as Matthew Clayton, explicitly adopt a 'dual-interests' view of parental rights, which relies on both children's interests in being parented and adults' interest in parenting. See: Matthew Clayton, Justice and Legitimacy in Upbringing (New York: Oxford University Press, 2006).
15. Ferdinand Shoeman, 'Rights of children, rights of parents and the moral basis of the family', Ethics, 91 (1980), 6-19. Harry Brighouse and Adam Swift, 'Parents' rights and the value of the family', Ethics, 117 (2006), 80-108.
16. Hannan and Vernon, 'Parental rights'. Brighouse and Swift, 'Parents' rights and the value of the family', also criticise Shoeman for failing to account for the way in which people acquire parental rights. According to this criticism, Shoeman does show that, once parents and children are in an intimate relationship, the state is not permitted to interfere and disrupt it; but he does nothing to show why a redistribution of babies at birth is wrong. I disagree with this particular criticism of Shoeman because, as I argue in this article, at birth parents already have an intimate relationship with the baby they have borne. Moreover, if my interpretation of the Brighouse-Swift account is correct, it also fails to give an account of how an individual or couple acquires the right to parent a particular child.
17. I often refer to 'better' or 'best' parents-which Brighouse and Swift manage to avoid-for the sake of simplicity. I use inverted commas to draw attention to the very problematic nature of establishing standards of excellence in parenthood, especially above the threshold of adequacy, and of identifying individuals who meet them.
18. Brighouse and Swift, 'Parents' rights and the value of the family', p. 81.
19. As is clear in their discussion of Shoeman, whose argument they find insufficient precisely because it does not account for the way in which the parent in question acquired the right to parent the baby in question. They hope their argument will address the issue missed by Shoeman's argument.
20. See Hannan and Vernon, 'Parental rights'. Instead, they argue, parental rights should be ultimately grounded in children's interests; if we allow parental interests to ground parental rights we run too high a risk of legitimising practices which contravene the children's wellbeing.
21. I also think, unlike Hannan and Vernon, that the account offered by Brighouse and Swift succeeds in showing that people's moral interest in parenting grounds very limited fundamental parental rights concerning childrearing.
22. Brighouse and Swift, 'Parents' rights and the value of the family', p. 87 n. 13.
23. For a reason why stigmatisation is so bad that it should sometimes prevent us to from defining people's rights in ways which invite stigmatisation (for example, defining rights to welfare provisions by appeal to special need), see Jonathan Wolff, 'Fairness, respect and the egalitarian ethos', Philosophy and Public Affairs, 27 (1998), 97-122.
24. Which neither Brighouse and Swift nor I regard as sufficiently convincing. But some people, including contemporary libertarians (such as Steiner, An Essay on Rights), who believe that we own our own genetic material, are likely to think otherwise. Note that, if one of these people argued that adequate fertile people have the right to parent babies, they will have to justify this as a right to keep one's baby because it is a biological child, not as a right to keep one's baby because one is an adequate parent and has a strong moral interest in parenting.
25. There might, of course be a practical problem with motivating the adequate infertile parents to contribute sperm and ova towards creating children.
26. That is, children's own interests and rights qua children, and everybody's interest in a fair society. For the second type of interest, see Harry Brighouse and Adam Swift, 'Legitimate parental partiality', Philosophy and Public Affairs, 37 (2009), 43-80.
27. Hawley Fogg-Davis, 'Racial randomization: imagining nondiscrimination in adoption', Adoption Matters, ed. S. Haslanger and C. Witt (Ithaca, NY: Cornell University Press, 2005), pp. 247-264, argues that racial randomisation in the adoption of babies in the USA would fight racism by advancing trans-racial adoption. This would stimulate critical thinking about race and challenge the stereotypes about race and inter-racial care-that is, the stereotype that black people are always in the position of providing care to white people.
28. For a recent analysis of the scale of sex-selective abortion and the ways in which it perpetrates and perpetuates gender injustice, see Anon., 'The worldwide war on baby girls', The Economist, 4 March 2010.
29. A strictly physicalist approach will say it results from oxytocin, a substance considered responsible for bonding and which is secreted during pregnancy. Whether one takes the phenomenological or the physicalist approach to analysing bonding during pregnancy might make a normative difference, but not in this context. A physicalist might argue, for example, that we should use oxytocin to help foster the emotional relationship between non-birth parents and babies. But this would not affect the present argument, which says that, one way or another, pregnancy itself fosters this relationship and hence taking babies away from their birth parents is morally wrong.
30. Amy Mullin, Reconceiving Pregnancy and Childcare: Ethics, Experience and Reproductive Labor (Cambridge: Cambridge University Press, 2005), p. 64.
31. Mullin's Reconceiving Pregnancy and Childcare gives a very vivid sense of the many physical changes undergone by pregnant women: 'in visual acuity, pigment of her skin, the onset of rashes, nausea, heartburn, raised blood pressure, increased congestion, difficulty catching her breath, swollen hands and feet'. (Reconceiving Pregnancy and Childcare, p. 39.) Many of these are relatively minor, but together they can entail significant pain and disruption of one's normal life.
32. Mullin, Reconceiving Pregnancy and Childcare, p. 67.
33. Mullin, Reconceiving Pregnancy and Childcare, p. 40.
34. Mullin, Reconceiving Pregnancy and Childcare, p. 43.
35. Louise Levesque-Lopman, 'Decision and experience: a phenomenological analysis of pregnancy and childbirth', Human Studies, 6 (1983), 247-277.
36. See for instance: Steiner, An Essay on Rights.
37. Since, as I noted already, the question of who should have the right to parent a particular child has to be an answer to an all-things-considered question.
38. Caroline Whitbeck, 'The maternal instinct', Mothering: Essays in Feminist Theory, ed. J. Trebilcot (Totowa, NJ: Rowman & Allanheld, 1984), pp. 185-198 at p. 191.
39. Shoeman, 'Rights of children, rights of parents and the moral basis of the family'. See also the discussion of this argument in Brighouse and Swift, 'Parents' rights and the value of the family'.
40. Although some philosophers believe we have property in our genetic material. See, for example: Steiner, An Essay on Rights.
41. Ann Oakley, The Captured Womb: A History of The Medical Care of Pregnant Women (Oxford: Blackwell, 1984).
42. But if there is significant bonding with the mother from the baby's perspective, this may ground a parental right to keep and raise that baby based on the child's interest.
43. Sarah-Vaughan Brakman and Sally Scholz, 'Adoption, ART, and a re-conception of the maternal body: toward embodied maternity', Hypatia, 21 (2006), 54-73.
44. Marilyn Friedman, personal communication, 10 July 2010.
45. I am grateful for helpful feedback to Daniel Engster, Sally Haslanger, Adina Preda, Ingrid Robeyns, Shlomi Segall, Adam Swift, Andrew Williams and Jurgen de Wispelaere. This research was funded by the Dutch National Science Foundation (NWO).