This is the continuation of a train of thought about treating children as property. You might want to start with the last post, which I just linked to. The long and short of it is that we generally agree that we shouldn’t treat children as property (and there are good reasons for this agreement.) At the same time, though, there are aspects of the way we talk about and treat children that are just a tad property-like. I think this is a good starting point because it suggests that while we all agree that we ought not treat children as property that simple agreement masks an awful lot of complexity.
Perhaps the most obvious thing we agree we do not want to do is buy/sell children. This is related to but not exactly the same as treating children as property. There are forms of property that cannot be bought/sold (Some will say cannot be commodified.) Many people with much deeper understandings of property law and theory have written about this. I’m not going to seek to match or replicate or even repeat their work here. Instead, I want to make essentially the same observation I made earlier–although we agree we do not want to buy/sell children, we do not agree on when we are doing that.
What really got me started on this topic this time is the implicit assertion made by commenters here that using genetics as a test for legal parenthood isn’t treating children as property, while using other tests (the main ones being intent and function) amounts to treating children as property. I say implicit assertion because I don’t think it has been stated explicitly but I think it necessarily lies behind the critique being offered. I mean, if you say “genetics is better because using function treats children as property” I think it is fair to assume you also mean to say “genetics does not treat children as property.”
This perplexes me because I think there is a fairly obvious argument that using genetics as a test does treat children as property. After all, the key question is this: Why should the person who provides genetic material necessarily be a legal parent of the child?
I can think of several answers here and not all of them lead to the children=property point. (So for example, you could argue that genetic parents will be the best legal parents for children–meaning the outcomes for children will be the best– and thus the choice is justified by our overarching desire to do what is best for children. That’s not treating children as property, but you are going to have to convince me that genetic parents will, on the whole, be the best parents for children.)
But there’s another point I’ve seen quite a bit here which has to do with the fact that the child is actually formed from the materials produced by the genetic parents. Your sperm/your egg=your child. This looks a great deal like a property-based argument to me. Doesn’t this amount to “your materials were used, therefore you have a claim to it?” To say that children made with your gametes are necessarily yours seems like an argument for ownership (consistent with property) rather than parentage.
I know that it doesn’t look that way to everyone, which is why I’m raising it here. It’s not so much that I’m trying to persuade anyone (right here right now) that I’m right and you’re wrong. Rather what I am thinking is that we are all subject to the assertion that we are treating children like property. And perhaps this is because there are aspects of how children are treated that are a bit like property. (Hence the previous post.)
I am not at all convinced that this gets anyone any further, but it does make we wonder whether it should make us a bit more cautious in deploying the “you’re treating children like property” argument.