Child Rights-07

Parental Powers and Limitations

The answer one gives to this question will likely include, either implicitly or explicitly, particular assumptions about the grounds
of parental rights and obligations.

Parenthood and biological parenthood are often seen as synonymous. But of course, adoptive parents are also parents by virtue
of assuming the parental role.

This commonsense fact opens the door for a consideration not only of the possible connections between biology and
parenthood, but other issues as well, such as the role of consent in acquiring parental rights and obligations, which then leads to
a host of other questions that are not only theoretically important, but existentially significant as well.

What does it mean for a parent to possess rights, as a parent? Why think that such rights exist? What obligations do parents have
to their children? What is the role of the state, if any, concerning the parent-child relationship? These questions are central for
our understanding of the moral, social, personal, and political dimensions of the parent-child relationship.
The parental right shall regulate the relationships between parents and children as well as other persons of kin. The
characteristics of this right shall be the various elements which are very important in accomplishment of relations between
parents and children.

Even that the importance of elements comprising the parental responsibility is undisputed, our focus has derived as a
consequence of the importance and sensitivity that these elements have in contrary to the other elements comprising the
parental right. Limitation of the parental responsibility comes due to the abuse of children by their parents. In such cases the
parents shall be limited to parental responsibility to that time limit such a situation lasts.

Deprivation of parental responsibility may come as a consequence of parents, behaviors from which the personality or property
of the children is at a high danger. Parents with such behaviors that endanger seriously the personality or property of children
shall be deprived from the parental responsibility.

Termination of parental responsibility happens in certain cases based on which the parents shall not be any more responsible for
their children after there have been fulfilled the conditions foreseen by the Law. With the positive legislations of some countries
included in this paper there have been determined expressively the cases of termination of parental responsibility. It is important
to mention that not all countries have determined, in their Laws, the matter of termination of parental responsibility that makes
the discussion of this paper more distinctive.
 Philosophical Accounts of Parental Rights and Obligations

When considering the rights of parents, both positive and negative rights are involved.

A negative right is a right of non-interference, such as the right to make medical decisions on behalf of one’s child without
intervention from the state.

A positive right in this context is a right to have the relevant interests one has as a parent in some way promoted by the state. For
example, some argue that parents have a right to maternity and paternity leave, funded in part or whole by the state.

Regarding parental obligations, the focus in what follows will be on moral obligations, rather than legal ones, with a few
exceptions. A parent might have a moral obligation to her child to provide her with experiences such as musical education or
opportunities to participate in sports that enrich her life, without being legally bound to do so.
The parental right may be limited if the parents behave without responsibility, abuse the parental right, endanger the personality,
rights and interests of children.

Exercise of parental right should always be done in the interest of the child, but there is not always respected such a rule by the
parents. In various cases, parents may act in that manner that will violate the general interest of children and endanger their
welfare. State institutions should undertake all measures of protecting the children’s interest and in such circumstances they
should interfere proportionally in the created situation. Convention on the Rights of the Child determines the obligation of the
state to undertake all legislative, administrative, social and educational measures for protection of the child in any form of
physical or mental violation, insult or mistreatment, during the time he/she is under the custody of his/her parents or legal
representative or any trusted persons (CRCH, 19)

The following areas will be discussed under the parental rights and obligations.

1. Proprietarianism
2. Biology
3. Best Interests of the Child
4. Constructionism
 Activity one
Group Work
Discuss the parental limitations of rights and
obligations under following topics.

1. Proprietarianism
2. Biology
3. Best Interests of the Child
4. Constructionism
1. Proprietarianism

An advocate of proprietarianism holds that children are the property of their parents, and that this serves to ground parental
rights (and perhaps obligations).

Proprietarianists argue, given that parents in some sense produce their children, that children are the property of their parents in
some sense of the term.. Aristotle held this type of view, insofar as he takes children and slaves to be property of the father
(Nicomachean Ethics, 1134b).

At least one contemporary philosopher, Jan Narveson, has argued that children are the property of their parents, and that this
grounds parental rights. This does not relieve parents of having obligations regarding their children even though children do not
yet possess rights (Narveson 1988).

For Narveson, how parents treat their children is limited by how that treatment impacts other rights-holders. Nevertheless,
parents have the right to direct the lives of their children, because they exerted themselves as producers, bringing children into
existence. A different sort of proprietarianism centers on the idea that parents own themselves, including their genetic material,
and since children are a product of that material it follows that parents have rights over their genetic offspring. Critics of
proprietarianism primarily reject it on the grounds that it is immoral to conceive of children as property. Children are human
beings, and as such, cannot rightly be owned by other human beings. It follows from this that children are not the property of
their parents. Most contemporary philosophers reject proprietarianism.
Historically, proprietarianism is often connected with absolutism, which is the idea that parental authority over children is in an
important sense, limitless.

Absolutists held that fathers have the right to decide whether or not their child lives or dies. This view is no longer advocated in
the contemporary philosophical literature, of course, but in the past was thought by some that this extreme level of parental
authority was morally justified.

Some advocates of this view thought that because a child is the creation of the parent, that absolutism follows. Other reasons
offered in support of this view include the notion that both divine and natural law grant such authority to parents; this level of
authority fosters moral development in the young by preventing them from exemplifying vice; and the idea that the family is a
model of the commonwealth, such that as children obey their father, they will also learn to obey the commonwealth (Bodin
1576/1967).

According to Bodin The natural affection that fathers have towards their children will prevent them from abusing their authority,.
Critics of absolutism reject it for reasons similar to those offered against proprietarianism. They claim that is clearly immoral to
grant parents the power to end the lives of their children. While some absolutists seek to ground this power in the fact that the
parent created the child in question, critics argue that the possession and exercise of this power over one’s children simply does
not follow from the fact that one created those children.
Critics of genetic accounts claim that several of the arguments advanced for these accounts are flawed in important ways. For
instance, those who hold that the genetic connection is necessary for parental rights and obligations must deal with
counterexamples to the claim, such as adoptive parenthood and step-parenthood. In addition, if two adults who are identical
twins have the same level of genetic connection to a child it does not follow that both are that child’s mother or father, though at
least some genetic accounts would seem committed to such a view.

Gestational accounts of parental rights and obligations, in their strongest from, include the claim that gestation is necessary for
parental rights. On this view, men only acquire parental rights and obligations via marriage, the gestational mother consenting to
co-parenthood with the male, or by the mother allowing him to adopt her child. Some gestational accounts—including those
which only include the claim that gestation is sufficient for parental rights or gives the mother a prima facie claim to such rights—
focus on the risk, effort, and discomfort that gestational mothers undergo as that which grounds their claims to parenthood.
Others center on the intimacy that obtains and the attachment which occurs during gestation between the mother and child as
the basis for a claim to parenthood. A final type of gestationalism is consequentialist, insofar as advocates of this view hold that
when there is a conflict concerning custody between gestational and genetic mothers, a social and legal policy favoring
gestational mother will have more favorable consequences for mothers and their children. It is argued that an emphasis on
gestation, and preference for gestational mothers in such cases, would increase women’s social standing by emphasizing their
freedom to make such choices concerning health on behalf of themselves and their children. This in turn will have the likely
result of benefitting the health and welfare of such mothers and their children. Positive inducements are preferable to punitive
sanctions, given the positive consequences of the former. This view also implies that the claims to parenthood of gestational
mothers carry more weight than those of fathers, at least when disputes over custody arise.
Critics of gestationalism reply that it is objectionably counterintuitive, insofar as it is inconsistent with the belief that mothers
and fathers have equal rights and obligations regarding their children. Many of the goods available to individuals via
parenthood, including intimacy, meaning, and satisfaction that can be obtained or acquired in the parent-child relationship, are
equally available to both mothers and fathers. This equality of parental interests, then, is thought to justify the conclusion that
the presumptive claims to parenthood on the parts of mothers and fathers are equal in weight.

There is a more general issue concerning the relationship between biology and parenthood, which has to do with the value of
biological connections in the parent-child relationship. A particularly strong view concerning the relationship between biology
and parenthood is that biology is essential to the value of parenthood for human beings.

On this view, there is a necessary connection between biology and parental rights. The entire process of creating, bearing, and
rearing a child is thought to be a single process which is valuable to parents insofar as they seek to create a person who in some
sense reflects a part of themselves. The aim is to create someone else in the image of the parent. This is why being a parent has
value for us; it is why we desire it. In reply, it has been argued that while biology may have value for many people with respect
to the parent-child relationship, a biological connection is neither necessary nor sufficient for parental rights and obligations.
Rather, the more valuable aspects of the parent-child relationship are personal, social, and moral. It has been argued that
biological ties between parents and children are morally significant in other ways (Velleman, 2005). Some believe that children
have families in the most important sense of the term if they will be raised by parents who want them, love them, and desire
what is best for them, regardless of whether a biological connection exists. The lack of such a connection does little harm to
children in such families. Against this, Velleman argues that knowledge of one’s biological relatives, especially one’s parents, is
crucial because the self-knowledge one gains from knowing them is central for forging a meaningful human life. Lack of such
knowledge, then, is harmful to children. In reply, it has been argued that knowledge of one’s biological progenitors is
unnecessary for self-knowledge and for having and leading a good life (Haslanger ,2009).
2. Best Interests of the Child

According to this account of parenthood, children ought to be raised by a parent or parents who will best serve their interests.

On this account, parental rights are grounded in the ability of parents to provide the best possible context for childrearing.
While the best interests criterion of parenthood is useful in cases of conflicting claims to custody in the context of divorce or in
situations where child abuse and neglect are present, several criticisms have emerged with respect to its application as the
fundamental grounding of parental rights and obligations.

One criticism of this view is that it fails to sufficiently take into account the interests of parents, which leads to potential
counterexamples. For instance, consider a case in which it is in the best interests of a child to be raised by an aunt or uncle,
rather than the child’s biological or custodial parents, when the current parents are fit and fulfilling their obligations to the child
in question. Removing the child from the custody of those parents solely on the basis of the comparative superiority of others
seems problematic to many. Moreover, this account may entail that the state should remove newborns from the custody of
their parents, if they are poor, and transfer parental rights to someone who has greater financial stability, all else being equal.
For critics of the best interests account, this is deeply counterintuitive and is sufficient for rejecting this account of parenthood.

Perhaps the account can be modified to deal with such criticisms. The modified account need not entail that a child should be
removed from the custody of its natural parents and given to better caretakers, who then possess parental rights with respect
to that child, even if these caretakers possess the same nationality, ethnicity, and social origins.
This is because it is in the best interests of the child to maintain her developing self-identity and provide her with a stable
environment. Still, a primary objection to all best-interests accounts is that they fail to take into account, in an adequate manner,
the relevant interests of a child’s current parents. The point is not that parental interests trump the interests of the child, but
rather that best interests of the child accounts fail to weigh those interests in a proper manner.

4. Constructionism
Some philosophers argue that the rights and obligations of parenthood are not grounded in biology or a natural relationship
between parents and their offspring. Rather, they hold that the rights and obligations of parents are social constructs.

One form of this view includes the claim that parenthood is a type of social contract. Advocates of such a view argue that the
rights and responsibilities of parenthood arise from a social agreement between the prospective parent and the moral
community (such as the state) that appoints the prospective parent to be the actual parent.

In some cases, social contract accounts emphasize causation as a way in which individuals may implicitly consent to taking on the
rights and responsibilities of parenthood. Contractual and causal accounts can come apart, however, and be treated separately. It
has also been argued that social conventions have priority over biological ties when determining who will raise a child, and that
in social contexts where biological parents generally have the duty to raise their offspring, individual responsibility for children is
produced by the choice to undertake the duties of raising a child, which can occur by deciding to procreate or deciding not to
avoid parental obligations via abortion or adoption.
Others who take parenthood to be a social construct emphasize the individual choice to undertake the rights and responsibilities
of parenthood with respect to a particular child. This way of incurring special obligations is familiar. For instance, an employer
takes on special obligations to another when that person becomes her employee. Spouses take on special obligations to one
another and acquire certain rights with respect to each other via marriage. In these and many other instances, one acquires
particular rights and obligations by choice, or voluntary consent. Similarly, then, when an individual voluntarily undertakes the
parental role, that individual acquires parental rights and obligations. This can happen via intentional procreation, adoption, and
step-parenthood.

Related to the use of reproductive technology, the creation of a child by gamete donors is thought by some to be immoral or at
least morally problematic because such donors often fail to take their obligations to their genetic offspring seriously enough
when they transfer them to the child’s custodial parents. Given that parental obligations include more than just minimal care, but
also seeking to care for children in deeper ways which foster their flourishing, the claim is that in such cases donors do not take
their obligations as seriously as is warranted. Constructionists reply that as long as the custodial parents nurture and provide
sufficient care for children, the biological connections as well as the presence of both a mother and father are at least relatively,
if not entirely, insignificant. In order to resolve these issues, both philosophical argumentation and empirical data are important.
5. Causation

Most, if not all, contemporary philosophers who defend a causal account of parenthood focus on parental obligations rather than
rights. Simply stated, the claim is that individuals have special obligations to those offspring which they cause to come into
existence. Defenders of the causal account argue that genetic and gestational parents incur moral obligations to their offspring in
virtue of their causal role concerning the existence of the children in question. In many cases, of course, the causal parents of a
child would incur obligations because they voluntarily consent to take on such when they choose to have a child. Defenders of
the causal account often focus on cases in which procreation is not intentional, in order to isolate the causal role as being
sufficient for the generation of parental obligations.

Advocates of the causal account set aside cases such as rape, where coercion is present. They maintain that in other important
cases one can incur obligations to offspring, even if one does not intend to procreate or consent to take on such obligations. The
general idea is that when a person voluntarily engages in a behavior which can produce reasonably foreseeable consequences,
and the agent is a proximate and primary cause of those consequences, then it follows that the agent has obligations with
respect to those consequences. In the case of procreation, the child needs care. To fail to provide it is to allow harmful
consequences to obtain. Since the agent is causally responsible for the existence of a child in need of care, then the agent is
morally responsible to provide it.

This is similar to other situations in which an agent is causally responsible for harm or potential harm and is thereby thought to
also bear moral responsibility relative to that harm. For instance, if a person damages his neighbor’s property via some action,
then that person thereby incurs the moral responsibility to compensate his neighbor for that damage. By parity of reasoning,
defenders of the causal account of parental obligations argue that causal responsibility for the existence of a child—when
coercion is not present—entails moral responsibility with respect to preventing the child’s experiencing various kinds of suffering
and harm.
6. Fundamental Interests of Parents and Children

This view of parenthood focuses on fundamental interests—those which are crucial for human flourishing—as the grounds for
the rights and obligations of parents. The general picture is a familiar one in which such interests generate correlative rights and
obligations.

In the parent-child relationship, there are several such interests in play, including psychological well-being, the forging and
maintenance of intimate relationships, and the freedom to pursue that which brings satisfaction and meaning to life.

The interests of children connected with their custodial parents are numerous and significant. If a child receives caring, intimate,
and focused attention from a parent, this can help her to become an autonomous agent capable of pursuing and enjoying
intimate relationships and psychological and emotional health. It can also contribute to her having the ability to create and
pursue valuable ends in life. The lack of such attention and care often has very detrimental effects on the development and life
prospects of a child. These interests are thought to generate the obligations of parenthood.

How is it that these interests are thought to generate parental rights? Parents can experience meaning and satisfaction in life via
the various actions related to parenting, as they offer care, guidance, and knowledge to their children. By playing a role in
satisfying the fundamental interests of their children, parents have many of their own interests satisfied, including the ones
mentioned above: psychological well-being, the forging and maintenance of intimate relationships, and experiencing
satisfaction with and meaning in life.
It is important for interests-based accounts of parental rights to note that a condition for the satisfaction of the relevant interests
often requires that the parent-child relationship be relatively free from intrusion.

If the state exercises excessive control in this realm of human life, the parent becomes a mediator of the will of the state and
many of the goods of parenthood then are lost. The parent is not making as significant of a personal contribution to the well-
being of her child as she might otherwise be able to do, and so is not able to achieve some of the goods that more autonomous
parenting makes possible, including intimacy in the parent-child relationship. There are certainly cases in which intrusion is
warranted, such as instances of abuse and neglect, but in these types of cases there is no longer a genuine intimacy present to
be threatened, given that abuse blocks relational intimacy. Finally, defenders of this view of parenthood conclude that if children
need parental guidance and individualized attention based on an intimate knowledge of their preferences and dispositions, then
the state has an interest in refraining from interfering in that relationship until overriding conditions obtain. Parents have rights,
as parents, to this conditional freedom from intrusion.