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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 Please do not cite, circulate, or copy without permission of the author. 2 Ferdinand Schoeman, “Rights of Children, Rights of Parents, and the Moral Basis of the Family,”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.

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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.

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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?”

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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.”

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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.

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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.

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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.

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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.

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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.

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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.

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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.