State Scrutiny of Parental Rights

 

This guest post is from Aric R. Wood, Regent Law 2L and current Wills, Trusts, and Estates student:

Parental rights are under scrutiny on a level we have never seen before. The belief is that minors should have greater control over their lives, behaviors, and experiences. This argument often comes up in conversations about consent to medical treatments for gender transition, but it also comes up in every major political issue involving children - homeschooling, vaccination, sex education, and on and on. What can a parent do and/or refuse to do regarding his or her child? It’s a spectrum that appears constantly in our modern discourse. Now, I just listed a few fun, buzzwordy, political hot-button issues, and now I am going to lay them all neatly to the side and politely ask that you, dear reader, ignore them. Instead, focus on the underlying assumption that these issues represent a conflict between the rights of parents and the rights of children.  

          Let's have a hypothetical:

Susie and Bob have a child named Bill.  Bill wants to do ‘X’. Susie and Bob do not approve of ‘X,’ but the general culture and, most importantly, the State does approve of ‘X.’ Susie and Bob are found to be abusive for opposing ‘X,’ a state agency intervenes, and now one way or another, Bill now gets to do ‘X’.

‘X’ could be going to a church youth group, taking hormones, or even blinking very slowly.  It matters very little.  What matters is that Bill's desire was refused by his parents and is now granted by the state. Something in the world of physical matter happened to Bill's life, but something else happened one layer down: Susie and Bob lost some of their agency as parents. In some situations, like this, they may have lost all of that agency. 

           So where did that agency go? Because it didn’t disappear, someone gets to say Bill can or can’t do ‘X.’  There are two options: 

1.      Bill gets that agency. OR

2.     The State gets that agency.  

According to most dialogue around this issue, it’s assumed it went to Bill. That is a logical assumption because: what Bill wanted happened. 

           But that’s not really what agency is, nor freedom. 

           Freedom and agency aren’t getting what you want. It’s more like a structure or social context where you exist. By way of example: if you ask your boss if it's ok to start using Times New Roman for your reports instead of her preferred font of Comic Sans, and they say ‘no,’ you have limited agency, but if they come back later and say “actually, do what you want,” you might have a choice now. Still, you don’t have any new freedom or power.  The boss is still the boss, and you still operate your font choice based on their allowance. Bill had to get his parent's permission; now he has to get the State's permission. Materially his life is different; a “no” is now a “yes,” but he is still asking permission. 

         You might still want to say that Bill has gained agency, but that will stay a philosophical point because the law isn't vague about the subject at all. Legally the State takes on “guardianship” rights and the ability to exercise such agency as if they were parental; at least that’s how most state codes structure it. 

          Using The State of Oregon as an example, the statutes explain that an agency — usually DHS — becomes the effective parent in extreme cases where ‘X’ justifies the removal of a child from their home.  “An agency maintains custody, control and guardianship of, and responsibility for, a child placed with a proctor foster home by the agency…” This means that intimate parental choices are now state policy.  There is good reason that this policy exists, and there are uncontroversial situations where it needs to be employed (physical abuse or neglect for example). So when I say: it is pretty clear that no one thinks this is an ideal situation, please know that is not a criticism as much as an observation of plain fact. The State isn't good at intimate choices, when the state has to intervene it is never a happy moment for anyone involved no matter how completely justified. 

           It is easier to observe this distinction in states which are seeking to limit access to hormone blockers, rather than liberal states seeking to expand their access. In a state that removes the ability of parents to consent to gender transition if their child asks for it, the child did not gain more freedom, the State did.  There are deep moral ways where a state that says “you must consent” is different from a state that says “you must not consent.” 

           But legally? Structurally and in terms of how power is shared between families and governments? There is no sharing of power. 

           The point to be made is not that the state is evil and overbearing (though it may be). The point isn’t that parents should be more tightly controlled so as not to harm their children (though some may need such a thing), but only to point out that “child rights” or “child liberation” is a misnomer, at least from a legal structure view.  

         

This in a way is a sad thing to realize. Because of the question: “should not a child be free as a bird to chart their own course?” is a much nicer question than “should the state have more or less control?” This is a lot more difficult to answer, and it doesn’t slot easily into a worldview or ideology. 

           I think reasonable people can agree the State should be more powerful when it comes to protecting children from sex trafficking. On the other hand, every reasonable person likely has a long list of ways the State is far far too intrusive in the affairs of private families.  A simple axis of parents should have more authority versus children should have more autonomy, doesn't work. Families are not restored by more state power.