All in the Family


When is it proper for the state to intervene in a family on behalf of a child’s well-being? Most Americans agree that the state can, and should, remove a child from physically abusive parents. What about parents who relentlessly mock the sexual orientation of their son? Or teach their daughter that women should never work outside the home? Or forbid their child’s exposure to any “secular” books, music, or art?

A refuge of intimacy and tenderness in a world frequently lacking both, the family has traditionally been shielded from state intrusion that, in deference to parental authority, still shapes American law. And yet every day headlines recount another heartbreaking story of a family that has served not as a refuge from suffering, but as the source of it.

The debate over the state’s role in regulating the family reflects a broader movement in the law’s treatment of the individual. Nearly one hundred fifty years ago, the English jurist and historian Sir Henry Maine famously summed up the history of law in Western society as a progression “from status to contract.” While past eras defined individuals according to group membership, modern law began recasting individuals as autonomous beings, free to arrange their affairs as they see fit. For all his foresight, Maine may not have imagined the extent to which our current law would pursue individual liberty. Today we ensure that individuals are not excluded from jobs or housing based on their race, ethnicity, or gender. We have begun to ensure that pharmacists and other health-care professionals are not required to perform services that conflict with their moral convictions. We even ensure that women are not diverted from the kind of life they’ve chosen by an unwanted pregnancy.

The family is not exempt from our legal system’s pursuit of greater individual liberty. A generation ago, the ability of individuals to abandon unhappy marriages expanded vastly through the creation of the no-fault divorce. More recently, defining a man and woman as fixed elements of marriage has come under fire as an unfair limitation on the freedom of same-sex couples to order their family structures as they choose. The last frontier for liberty’s march within the family is the parent-child relationship. Until the late nineteenth century, the legal system treated children wholly as the property of parents, even in cases of extreme abuse and neglect. The first successfully prosecuted child-abuse case did not occur until 1874-and given the lack of a relevant statute, had to be brought under laws prohibiting animal cruelty. Today, as our myriad social-service agencies attest, the public’s willingness to interfere with a family on behalf of children has expanded dramatically.

It is clear that state intervention in cases of physical abuse or neglect-even to the point of removing a vulnerable child from her family-has alleviated a great deal of suffering. But broken bones and bruises aren’t the only harms that preclude a child’s flourishing. Parents who abuse a child verbally, fail to provide adequate schooling, forbid meaningful interaction with peers, teach self-hatred, or foreclose opportunities to explore the world outside the family are unmistakable threats to the child’s growth. Should society intervene in such cases? Traditionally, the notion that the state should act to protect a child’s holistic development has been a nonstarter. But many influential children’s rights advocates have begun to link a broader view of a child’s well-being to a more robust framework of proposed rights. Whether their efforts will bear fruit in our legal system remains to be seen.

One manifestation of this shift was the effort in the United Nations in the late 1980s and in the ’90s to establish a global framework of children’s rights. Its Convention on the Rights of the Child requires signatory nations to ensure that children enjoy freedom of expression, thought, conscience, religion, a right to privacy, and the ability to “receive information and ideas of all kinds.” The United States remains one of only two nations (the other is Somalia) not to ratify the convention. The U.S. delegation argued that the convention’s enforcement would erode parental control over child rearing. Whether or not those fears are well-founded, the convention’s terms mark an important reconception of the child’s legal significance. And as the focus broadens from ensuring the child’s physical well-being to ensuring that she develops the ability to choose her own life path, the grounds for state intervention could expand exponentially. That expansion creates a new set of problems.

Lacking a fully developed rational capacity, children are incapable of protecting their own interests or directing their own lives. Someone must make decisions on their behalf. Who should that be? Except in cases of extreme abuse or neglect, the law has traditionally deferred to the parent. This deference was not a grant of permission, but a recognition of a relationship that precedes and transcends state authority. As children’s rights advocates succeed in persuading the state to oversee progression from childhood to full autonomy, the state’s attitude toward parents becomes much less deferential. By asserting authority to ensure a child’s healthy development, the state also claims authority to define what healthy development is. The UN has provided one set of criteria. But once the authority has shifted from parents to the state, the vision’s content is open to public debate.

For instance, the focus on the child’s future exercise of autonomy has led some children’s rights advocates to call for more aggressive regulation of private schools. One common objective is to ensure that a school’s teaching promotes essential values such as equality and tolerance. University of Chicago law professor Emily Buss goes even further, asserting that “a state interest in fostering the capacity for independent thought in its children could justify policies encouraging and even, perhaps, compelling some amount of exposure to ideologically unlike peers.” In other words, the state has an interest not just in regulating the content of the curriculum, but also in regulating the makeup of the classroom.

Such assertions of state interest may make it more difficult for parents to raise their children within a religious tradition that seeks to separate itself from society, such as the Amish, or one holding unpopular views, whether on the status of women or the morality of homosexual behavior. Family law scholar James Dwyer writes that if “some parents cannot use their children’s schooling to proclaim the ‘good news,’ because in the state’s judgment the parents’ news is not so good, then so be it.” Dwyer’s new book, The Relationship Rights of Children, takes the principle of individual autonomy to its logical conclusion within the family. Portraying the parent-child relationship as a straightforward creation of the law, Dwyer asserts, “the state directly determines who a child’s legal parents will be at the time of birth and then at every moment of a person’s childhood.”

Unlike political theorists who call for the state to mold children into model citizens, Dwyer invokes state power on behalf of the child’s own well-being, urging the state to “respect any measure of autonomy [children] already possess and [to] optimize their development toward full autonomy.” And yet even such benign-sounding prescriptions pose problems. Who will decide what optimizes that development toward autonomy? Because the child cannot articulate her own wellbeing, Dwyer’s policy guideline actually elevates the state, as the child’s guardian, over the parent.

Of course, no one longs for a return to the days when child abuse was a strictly private affair. But there are reasons to worry about a reform that would allow the state to implement a value-individual autonomy-that is not of absolute importance to many parents who love their children dearly. For example, many political theorists insist that for a person to direct her own life as a truly “autonomous” being, she must be able to evaluate critically the tradition into which she was born before deciding to live within that tradition as an adult. Their claim is not that a “cradle Catholic” cannot be an autonomous adult and remain Catholic, but that she must take stock of the merits and drawbacks of her own tradition, as well as alternative worldviews, before deciding to remain Catholic. Needless to say, creating space for this critical reflection is hardly a pressing concern for most parents-and indeed, many may reject it. And therein lies the crux. It is one thing to disagree with one’s fellow parents about the centrality of individual autonomy as an objective of child rearing; it is quite another for the state to choose sides.

Ultimately, the tension created by the children’s rights movement is captured in a single question: Whom do we trust to care for the child? Once the state assumes the authority to speak for a child, what happens if the parents fall into a category of people-for example, drug abusers, prisoners, the mentally incompetent-who tend not to act in a way that is most supportive of a child’s future autonomy? Under Dwyer’s prescription, these parents would bear the burden of proving their worth before the state permitted them to act as parents. It is not difficult to imagine future calls to expand the category of those presumed to be unfit parents to include individuals who would threaten their child’s autonomy by passing on misogynist or homophobic religious beliefs. When parenthood exists as a creation of the state, the boundaries of state power become difficult to discern.

The state must tread lightly and cautiously whenever it seeks to enlarge its regulatory presence within the family, even when its motivation is noble and its aims laudatory. We cherish the family because it is the social foundation of human experience-the community where the human person loves most deeply, sacrifices most nobly, and relates most authentically. It is much more than a mere training ground for the future exercise of autonomy, and its value is not readily captured in the language of public norms and legal rights. We would do well to recall the perspective of Catholic social teaching, as expressed in chapter 5 of the Compendium of the Social Doctrine of the Church: “The family,” it reminds us, “does not exist for society or the state, but society and the state exist for the family.”

The pleas of children’s rights advocates cannot be dismissed lightly, nor can they be answered by retreating to the archaic notion of the child as parental property. For those who care deeply about the well-being of children but resist the enshrinement of autonomy as the proof of adequate parenting, the task is to discern when a family’s failure to function as a refuge of love and care justifies the corrective exercise of state power. Blurring the boundaries between the family and the state may in certain cases produce better outcomes for some children, but it also threatens the independence that makes the family such a vital component of the child’s flourishing. How do we carve out a role for the state in guarding the inherent dignity of the child without turning parents into licensed state agents? This is the hard question, and we’ll have to answer it soon.

Published in the 2007-03-23 issue: 

Robert K. Vischer is the dean and Mengler Chair in Law at the University of St. Thomas School of Law in Minneapolis.

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