Scott A. Altman
Though not usually listed among our fundamental rights, we value the right to pursue intimacy—the right to form and sustain intimate relationships. Intimate relationships shape identity, life plans and happiness. Among the most important is the relationship between parents and children. The right to form and sustain the parent–child relationship is the subject of this chapter. In it, I explore whether parents’ interests in forming and maintaining intimate relationships justify parental rights.
Before advancing an argument for parental rights based on a right to intimacy, I should clarify three preliminary issues. First, equating the parent–child relationship with forms of adult intimacy might seem unusual. Friendships begin with mutual consent, usually exhibit equality and symmetry, and most often include more than emotional components—we talk with our friends in addition to having strong feelings toward them. For parents of infants most of this is reversed. Relationships begin without the child’s consent and lack equality or symmetry. Children are dependent and eventually subordinate. And relationships with infants rely on emotional bonds but not shared ideas. Despite these early differences, parent–child relationships have something in common with friendships—the value people find in them.
Second, the characteristics of intimacy might be thought obvious. Intimate relationships are particular. My connection to another person is intimate if we do not regard each other as fungible—another friend or lover would not be as good. Intimacy also includes trust, vulnerability, companionship, emotional connection, affection, and mutual support and concern. But intimacy is actually a contested ideal. Some people understand intimacy in mundane psychological terms; others embrace spiritual accounts equating intimacy with communion. This variation is understandable in a diverse society. Indeed it may be desirable; autonomous individuals come to understand for themselves the value of intimacy and then create that sort of intimacy as best they can. I remain agnostic about which characteristics are most important for intimacy.
Third, describing intimacy as a right might seem odd. Intimacy is a feature of voluntary relationships, an achievement that can no more be guaranteed than can being graceful or satisfied. I do not propose to assert a right to intimacy but a right to seek intimacy and to be provided with background institutions that make success reasonably likely.
A right of intimate association has been discussed extensively in American constitutional law, particularly after an influential article by (Ken Karst 1980). And though many intimate relationships have since then been protected with rights, parental-rights claims have fallen into disfavor. Parental rights are acknowledged, if at all, as derivative—usually as legal entitlements created to protect children’s interests (and therefore as limited by those interests) or as bribes necessary to induce parents to care for children. Such derivative justifications, while certainly capturing facets of family life, also ignore important reasons to treat parental rights as independent: intimate relationships are a core part of a life well lived. Autonomous individuals exercise some control over these relationships by, for example, selecting intimates and shaping relationships.
A nonderivative right to establish and maintain intimate relationships raises more questions than it solves. Certainly it shows why shunning or isolating people is a prima facie wrong—extended isolation makes intimacy almost impossible. But a right to intimacy does not alone explain which relationships or potential relationships must be respected, what support such relationships are due (from laws or from specific individuals) or what other interests justify institutions that undermine intimacy.
The specific questions I consider include whether parents are morally entitled to live with their children and to deny others access to those children. I do not limit this inquiry to genetic parents; similar claims to association are raised by stepparents, grandparents and intentional parents, by which I mean both adoptive parents and individuals who contribute to the creation of a child by, for example, hiring a surrogate mother or securing sperm for artificial insemination. I inquire first about a right to establish relationships not yet formed, in contexts such as a father seeking future access to an unborn or recently born child. Having considered a right to establish intimacy, I next consider disputes about the ability to maintain intimacy in established relationships, such as conflicts over relocation by one parent, or a parent’s effort to deny continued contact to a stepparent, grandparent or other caretaker.
I conclude that the pursuit of intimacy provides an important basis for some parental rights but that other elements traditionally associated with parental rights are justified, if at all, by other interests. I explore one alternative interest briefly at the end of this essay.
The Right to Establish Intimacy
Consider first potential relationships. A right to seek intimate relationships consists partly in not having the group of potential intimates unduly restricted. Being held in complete isolation deprives people of this right. So too does declaring off limits anyone in a large group of people, especially if the off-limits group includes all those with whom a person seeks intimacy. Legal bans and social taboos against gay people engaging in public affection or private sex acts or marriage inhibit intimacy in this way.
But unduly restricting the class of potential intimates is not the only (or even main) restriction on potential intimates that matters. Some rules or customs deny access to a specific person as a potential intimate without dramatically limiting the class of potential intimates. For example, traditional rules (no longer universally enforced) prevent donors of sperm and ova, and parents placing children for adoption, from knowing where their genetic children are being raised—in part to prevent them from having relationships with these children (78 ALR 4th 1990 218; 83 ALR 4th 1991 295). These rules were designed to inhibit formation of specific relationships. Similar are rules declaring that a child’s biological father has no parental rights if the child’s mother was married to another man (1989)Michael H. v. Gerald D. 491 U.S. 110), or rules permitting an unmarried mother to place a child for adoption without the father’s consent if he has not come forward rapidly enough to establish a relationship with the child (Lehr v. Robertson 1983) 463 U.S. 248).
Some of these rules make sense—both because they advance important goals and because any interest in forming a specific relationship is voluntarily waived (at least from the parent’s perspective). Should we be concerned about the others? So long as a person can form other intimate relationships, why object to declaring off limits one specific (not-yet-formed) relationship? Surely my rights are not violated if Kobe Bryant refuses to be my friend or if Julia Roberts declines when I ask her on a date. Not only do their associational rights require this outcome, we rightly think that I can find friendship and love by looking among those who are willing. We could take a similar attitude toward children: I should not be able to insist on forming a relationship with any particular child so long as I have ample opportunity to become a parent to a different child.
Consider an example: Monsey and David conceive a child, perhaps through birth control failure or after unprotected sex. Monsey has arranged for adoption, either by a couple seeking an infant or by her new life partner. David does not learn about the pregnancy until after the child is born. He learns about the adoption shortly before (or shortly after) it is finalized and then seeks to be declared the child’s father.
The legal question—should someone like David be able to rear the child or prevent its adoption by another—arises frequently, sometimes eliciting great controversy (In Re Baby Girl Clausen (1993) 502 N.W. 2d 649). Outcomes vary depending on whether the mother was married when the child was conceived, how rapidly the father comes forward to seek the child and whether he acts responsibly toward the child from the start. The moral question—on what basis should we evaluate his claim—is no less contested. Arguments for parental rights over infants usually rely on outdated interpretations of children as property (or property-like claims based on causation) or derive parental rights from children’s needs (Austin 2005; Scott and Scott 1995; Buss 2000).
David’s interest in intimacy cannot easily support his rights claim because David has so many alternatives. Just as my interest in forming a friendship with Kobe Bryant is reduced by the large pool of other potential friends, David’s need to care for this infant is undermined by other actual or potential children. To succeed, the argument from intimacy to parental rights must show how infants differ from potential friends.
Infants differ from potential friends in at least one key respect: parents have duties toward infants. If I have a duty (or believe myself to have a duty) to form a close relationship with a specific child, my opportunities to care for other children would not undermine my reason for establishing this relationship.
Why would someone have a duty to establish a relationship with a specific child? Procreating causes a child to exist and to have predictable needs, including stable, loving relationships with adult caretakers. Society could arrange to provide children with such relationships in many ways, some no doubt better than others. But in most actual societies, even in those that assign caretaking duties to servants or that forego long-term cohabitation (kibbutzim or boarding schools), parents are expected be the focal point of, and to reciprocate, a child’s love. Given the widespread expectation that a parent will fulfill this basic need, and the parental role in creating this need, most parents reasonably regard meeting the need as a prima facie duty.
Not all duties, however, need to be fulfilled personally. Parents who place children in adoptive homes fulfill their duties indirectly by providing their children with loving parents. Why then should a genetic father whose child is adopted have any further duty to fulfill?
Perhaps the duty to provide children a loving home cannot be delegated so easily. Parents who believe they must personally rear their genetic children offer varied reasons—ranging from a desire to continue a family name or tradition (which they might understand as a religious duty, or as a duty to ancestors, or as a duty to provide the child with a connection to the past), to a recognition that a child placed for adoption may feel herself abandoned no matter how loving her eventual home, to a simple understanding of the caretaking duty as inalienable.
Not everyone believes the duty to rear their children is nondelegable. And even those who regard the duty as better fulfilled personally do not always think it wrong to place children for adoption. Disagreement concerns both moral and factual issues: not everyone feels a strong commitment to provide their genetic children a connection to family line, or believes that loss associated with abandonment is serious.
Such moral and factual disagreements do not necessarily preclude judgment or regulation. But delegating parental responsibility is a question about which reasonable people can disagree. More importantly, it is a question at the core of individual identity for many people: what are my obligations as a parent and how ought I best fulfill them? For this reason, states should hesitate about preventing people from fulfilling parental duties personally.