Few things are more mundane than becoming a parent. One, or one’s partner, gives birth to a child; one takes the baby home, if birthing happened in a hospital, or simply keeps the baby and raises her. Except for philosophers and the odd anarchist, hardly anybody wonders whether those who bring children into the world should have the legal right to also bring them up, and if yes, for what reason.
But philosophers like riddles, and this very mundane process raises one: Parental status comes with a great deal of legal control over a particularly vulnerable human being, and states grant it automatically to procreators, with no preliminary checks. Surely, people in general very much want to raise their offspring. A child, however, is a person (in the making), that is, not someone who may be used as mere means to advance other people’s projects. One may exercise control over a person either with their permission—not the case with newborns!—or because it is in the best interest of the person whose life is controlled. If so, a particular adult’s right to control the life of a particular child should be justified by the latter’s best interest in having that guardian. In other words, the moral right to parent should be understood as a liberty right held by the person, or persons, who, of all those who express a commitment to parent a child, would make the best parent for that child—i.e., would benefit the child most through the exercise of parental authority (within the limits imposed by justice). I have started to defend this view in a recent article, and I’m making slow progress towards a more comprehensive defense in a book-in-progress.
Perhaps, then, the most promising explanation of why procreators have default rights to rear their children is that the practice is in the latter’s best interest. This is quite plausible: as I argued in an older paper, newborns are generally already part of a relationship with their gestational mother and, possibly, their involved partner. This feature, a byproduct of the material way in which we come into existence—through other people’s bodies—together with the formidable difficulties of establishing which adult, of all those willing to raise children, would make the best parent for a particular newborn, are of great importance in justifying the status quo. People have always disagreed about parental excellence, and we cannot predict most ways in which newborns will evolve and hence their specific needs; it would then be madness to disrupt the emotional and physical bonds formed during pregnancy between gestational mothers and their babies in the quest for optimal parents. (Exceptions aside: we can, sometimes, determine that a child would be better off away from their biological parents.) Moreover, it is beneficial for children in general to be born into a social web of people who expect their arrival with happy anticipation and prepare for it over months, and to be raised by individuals who wish to bring them up, as biological parents usually do.
The best available parent principle is controversial: the dominant view amongst philosophers today says that the right to parent is partly grounded in adults’ morally weighty interest in being parents, assuming that they would raise their children adequately. The interest, according to this family of accounts, is essential to people’s flourishing, and hence protected by a right to the opportunity to raise a child even when one would not make the best available parent. Against this claim, I argue that there cannot be a right to exercise control over another person, even when the interest is understood, charitably, as one in contributing to the well-being of the person whose life is being controlled. Consider an example as close as it gets to parenthood: if, sadly, someone’s mental state is such that they need a guardian, the latter should be chosen on considerations of how well they would perform their guardianship duties. How invested the person in the case is in being the guardian of the one in need, or how much being a guardian would contribute to the success of their own life, are considerations that don’t support a claim to be appointed. Suppose, for instance, that an older sibling would greatly value taking up guardianship. This fact seems to be relevant insofar as it contributes to, or is a proxy for, good quality guardianship. But in itself it should be irrelevant: fiduciary roles exist because some people are in need of guardianship, and we don’t set back the fulfillment of the need to advance the interest of some in occupying the roles.
Yet, there is a morally relevant difference between procreative parenting and any other relationship: procreative parents create their children, thus exposing them to the many and serious risks of leading a (human) life, without the possibility of securing their consent. For this reason, procreators arguably acquire a stringent and demanding duty of care towards the children they brought into the world. Could it be that holding parental rights in relation to the child one has created is justified as a means to discharge this duty? Maybe, but only in cases in which no better guardian is willing and available to raise the child instead. For surely it is not morally permissible to prevent a better caregiver from alleviating harm on the grounds that another person has imposed the risk of harm. (If the risk-imposers are liable, perhaps they owe compensation to those who alleviate the harm.) This unique feature of procreative parenthood is no challenge to the principle of the best available parent.
The riddle of parenthood is not merely theoretical; it has direct and momentous practical implications for some people’s lives. For there are, indeed, cases in which we can know what person would make the better parent for a child, and in which some relationship disruption is unavoidable. For instance, when parents separate and shared custody is not an option, or when adoptive and biological parents litigate over the custody of a toddler. In such situations, it makes a difference whether the right to parent a particular child is held by the best available parent or whether judges should also consider, in their decision, the importance of playing the parenting role for the litigating parties.
Further, the solution to the parental puzzle bears on the social organization of child-rearing. By default, each child has two legal parents, reflecting the number of people traditionally needed to create a baby, and the historical view that children are their parents’ property. This practice should be reconsidered if child-rearing in general ought to be guided by the principle I defend, the case for which can easily be seen when considering how child-rearing as a social practice is a form of controlling children’s lives. If non-procreative adults are willing to participate in child-rearing, and their participation—qua additional parents, or secular godparents, or honorary aunts and uncles—would benefit children, we should create institutional venues for them to do so. The scope of (procreative) parents’ discretion to keep some people out of their children’s lives goes only as far as strictly needed to protect the interests of their children, and no further, on pain of being dominating. Of course, relaxing parents’ control over their children’s relationships with other people would create inconveniences to the former, potentially of significant magnitude; it would limit, and over time even jeopardize their access to the children they rear, and draw them into relationships with adults they would rather avoid. But this may be a fair cost of the privilege to raise a child. This is why it matters whether or not the right to parent, and its content, is partly grounded in adults’ interest in parenting. The best available parent view has the potential to undo the ways in which we grant rights over children to adults, the extent to which we limit and enable children’s agency, and, more generally, how we shape children’s and adults’ lives.
Anca Gheaus
Anca Gheaus teaches practical philosophy at the Central European University, after having worked at a few other European universities. She is a co-author of Debating Surrogacy (Oxford University Press, 2024) and a co-author of The Routledge Handbook of the Philosophy of Childhood and Children (Routledge, 2018). She is working on a monograph on child-centred childrearing, under contract with Oxford University Press.
