Are Children Property? Surely We All Know the Correct Answer is “No”

Even though there is an awful lot of disagreement here, there are a handful of things I think we actually agree on.   So for example, we all agree that the well-being of children is important and should be one of the goals–if not the goal–of any legal system.   The problem, of course, is that as soon as we start to talk about what promotes the well-being of children all vestiges of agreement fall away.

In the same way, I think we all agree that children should not be treated as property.   Or at least, we all say we agree about that.   Practically what that means is that if you say to someone “but your approach treats children like property” then they have to defend against that charge.  They cannot say “yeah, and so what…..?”   

In any event, if you look between the superficial agreement that we shouldn’t treat children as property, you find all sorts of disagreement–much of it the rooted in the recurrent questions about the importance of genetics as a determinant of parentage.    I want to take a little time to explore this, not because I think I have answers, but because I think it might help clarify things.

To start with (and this may be all there is time for right now–I’m sitting at an airport departure gate), it seems to me there are a couple of ways in which (for better or worse) children might generally be treated as property.    Maybe this means the first questions are about whether this is necessarily a bad thing and, if it is, what we ought to do about it.

Here’s what I mean.   First off, think of the language we use–at least in English as spoken in the US.  If a child is careening around a park and running into things, people will say “whose child is that?” and someone will probably answer “Mine–that child is my child.”   Those words are words of ownership.  Both the questions “Whose child is it?” and the answers “mine” or “it is my child” are the same as what you would use if you were talking about a book or a toy or some other object that is clearly property.

There are actually other ways we could say what we mean.   One might ask “who is responsible for this child” and the answer might then be “I am responsible for taking care of and raising that child.”   It seems to me this removes the most property laden terminology, or at least damps it down and treats children like people rather than like things.

I don’t mean that this is conclusive or even that it proves anything.    Surely the formulation “that’s my child” is shorter and more compact.   But if we’re worried about treating children as property maybe we should at least think about the language we use.

The second point I’d make here is a bit more substantive but perhaps also somewhat obscure.   One of the key features of property ownership is the right to exclude other people from use of the property.    If I own land, one critical right is the right to determine who comes on the land and who does not.   (I do not teach property law but I think some people might say this is the most critical feature of ownership–one of the hallmarks of property.)

Surely this is reminiscent of a critical feature of parental rights–which is that the parents get to determine who the child sees and who the child does not see.  (This is the key to understanding the outcome of the case that was the subject of the previous post.)   I don’t think anyone would dispute that this power–essentially the power to regulate access to the child–lies at the core of parental rights.  If you do not have this right, you are not functioning as a legal parent.   (I don’t mean that occasionally there isn’t court-ordered contact with specific people.  In particular cases there may be such contact.   But even then we understand that as diminishing parental rights.)

What strikes me here is that there is at least a similarity between what it means to own something (to control access to it) and what it means to be a legal parent (to control access to the child.)   I’m not ready to say whether this is a good thing or a bad thing–for the moment I just want to offer the observation.

And now I’d best get on my plane…..



12 responses to “Are Children Property? Surely We All Know the Correct Answer is “No”

  1. Ah but we are not merely speaking of controlling access to a minor are we? No! We are talking about manipulating their identity, their legal kinship for the rest of their lives without their consent. When you are in fact related to someone as their sister and you have in fact crappy parents who lost custody of you both due to drugs and alcohol and you are adopted into different homes different families guess what you loose? The right to be legally recognized as sisters forever ! Just because your parents were idiots and loosers. The nice people willing to take care of you won’t do it unless they own you forever and take away your reality. Its absolute crap. Their control outlasts the limits of their actual authority over the minor it extends permanently into the person’s adulthood.

    • It’s true that we are talking about much more than just determining who children get to see, but I’m not sure I see how this observation fits in with my post. You use “manipulating” a child’s identity, which is a pejorative way of putting it, I think. I’d probably choose a more neutral term like “forming” a child’s identity. But I’d agree that the people who raise children (perhaps here I mean psychological parents?) do this. Indeed, I think this is a necessary part of raising a child.

      Perhaps we have a broad difference here–I think identity (which is itself a very complicated and multilayered thing) is formed in some complex way, not just delivered to or attached to a child, and I think it apparent that the people raising the child must have something to do with how that is formed. I teach my children about their religious identity, for instance.

      It also seems to me that while it is true that this done without the consent of the children involved, the absence of consent seems necessary. Infants don’t consent to anything–they are, I think, incapable of consent. Same with young children. Is your point here that in denying infants the right of consent we treat them like property? Perhaps we do. And that is really the point of this post–the language we use and some of the ways we actually treat children does suggest property, at least some of the time. I offer this as an observation–and I think as an observation it is independent of what test one uses for legal parentage. It’s more a point about the general construction of the parent/child relationship.

      • You are confused about what identity is. Identity is not something people choose for themselves – that’s called an assumed identity and its a crime. Identity is not something parents choose for their children – they name them sure, but it does not change who their child is in terms of being their offspring – their first or third child or the grandchild of their parents etc etc. They would be that whether they were named David or Charles or hank. Choosing a child’s name is the closest a parent gets to forming the identity of their child. Even if they don’t choose a name or choose not to name their child the child will be identified as the child of the people identified as parents and if those people are not the two individuals the child originated from the child’s identity has been manipulated altered from medical scientific fact. They are in fact the relative of other people then their identity has been manipulated. Our identity starts with who we are and are not related to as genetic kin and then moves on to who we are and are not emotionally and socially connected to like whose friend we are whose customer whose student whose spouse whose girlfriend or boyfriend whose employee whose fan whose taylor or bookkeeper,etc. Whose child we are is essential critical in identifying us and if we are misattributed to the wrong people as their child when that relationship should be identified as either social or contractual then its manipulation and a false identity. Its bad when people assume false identities of their own free will, but its really a violation of enormous proportion to have someone else provide you with a false identity when you are so young that you cannot stand up for yourself and say yes or no. Then you get stuck with it and nobody will allow you to go back and live the truth because it’s been too long and they are too lazy to redo their books.

        • There is one way an adopted person can go back to their real identity without getting un adopted. When they are in reunion their parent has their real birth record. They change their name back to their real name through a normal legal name change and then they just start using their real birth certificate instead of their fake one. It’s easier than having the real parents adopt their own child which is ridiculous. I’ve read about people doing that and was able to talk one reunited family out of doing it – so much easier to just have the adopted person change their name to the name they originally had.

  2. I’m not sure about that interpretation. Surely it’s a parents duty, not right, to protect a child from undesirable contact.

    If your mum doesn’t like one of the friends you bring home and tells you not to be friends with them any more, you’d say they were being a bit unreasonable perhaps but not behaving in a way that treats their child as property. They are trying to protect them from bad influences.

    Sometimes parents try to restrict access to a child as a way of getting revenge on or maintaining control over an ex partner. That to me is an abuse of their duty of care.

  3. Still shocked by this astonishing case – treating a child as a means, par excellence. Glad the woman has been jailed.

    • Something like this happened years ago in the US but it was the stepfather who was the biological father – they used a syringe so he argued it wasn’t assault since he never had sex with her. It was a failed defense, and he and the mother (who had a hysterectomy, hence the whole plot) went to jail, and the girl, who said she “hated” the baby, gave it up for adoption. Sad to see something like that happen again.

      • what a ridiculous claim. as if it matters whether it was sex or not, it was still an evil assault which by any other name stinks as much.

    • Also, seems like that sperm bank needs better regulations. The bank I purchased from let me buy whatever I want, but unless my doctor sent in authorization, they would never have shipped it and I would have had to keep it stored there, unusable.

      • Yes, I thought that too. The only thing that gives me pause is that the sperm from Cryos is properly tested; the mother in this case started off by using a donor who came to the house, with all the attendant risks for her daughter. God forbid they used a ‘natural donor’.

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