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…..