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Parental Rights and The Obligation to Care

Parental Rights and The Obligation to Care

By Steve Horwtiz

Murray Rothbard famously argued that parents have the right to neglect or abandon their children because they have acquired no obligation to care for them.  In my forthcoming book, I take on Rothbard’s specific argument, but this way of viewing things unfortunately lives on among other libertarians. A good example of this kind of misguided thinking about children’s and parental rights is this passage from a 2012 blog post by Wendy McElroy, even as she tries to avoid earlier in the post the very conclusion Rothbard comes to:

As a legal matter, neglect and cruelty present a problem. Common decency rebels against abusing an infant, even non-violently. But the fact remains that the bad treatment is non-violent. If a parent does violently aggress against a child, then it is criminal matter and a 3rd party has the same right to intervene on the child’s behalf as on the behalf of someone being mugged in an alley.

The uncomfortable fact, however, is that libertarianism does not recognize positive legal obligations except as established by agreement.

That is to say, there is no positive obligation that legally forces  a parent to provide sustenance or shelter. Only if the parent has entered into an agreement with the infant can such positive obligations be enforced. But, clearly, until the infant reaches the age of consent, an agreement with it is not possible. Positive obligations cannot be enforced.

This way of thinking of the matter is wrong-headed. The parents’ obligation to care for the child isn’t about making an agreement with the child, and the lack of such an agreement with the child does not mean the parents have no obligations. The parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights, and thereby accepting the corresponding obligations. This is most obvious with the legal acquisition of parental rights in adoption, but is no different when biological parents bring a child home from the hospital, or make other positive steps to exercise parental rights by treating the child as theirs. “Treating the child as theirs” is a kind of public declaration of the exercise of parental rights, and those rights come with corresponding responsibilities and obligations.

To care is an obligation by will not law | Photo Courtesy: Visualhunt

You can think of taking a child home from the hospital as analogous to homesteading: you are declaring to others (not to the child) that this child is yours and that you thereby accept the responsibilities to care that come with exercising those parental rights. If you created that child and do not wish to care for it yourself, you have an obligation to arrange for its care by finding someone else who wants to acquire those rights.

Children must be cared for, and infants cannot consent to their caregivers.  Therefore the “agreement” parents enter into is not with the child, but with “the rest of us” by engaging in de facto exercises of parental rights that then create de jure obligations to care for (or to arrange for the care of) those children. With great rights come great responsibilities, and such is the case for parents too.

And this is the reason that even “non-violent” (as if violence is the only form of aggression, I might note) abuse or cruelty or neglect should be actionable in a libertarian world. Infants are helpless, and this is relevant not just because it means they can’t consent to their caregivers. It is relevant because it means that accepting parental rights but refusing to accept the corresponding obligations to care for a helpless child is form of breach of contract. Again, the contract is not with the child, but with “the rest of us.” Given the helplessness of infants, someone has to provide that care and those who act in ways that exercise parental rights simultaneously announce their willingness to accept the obligation to care.

In essence, exercising parental rights and accepting parental responsibilities is one or more adults publicly saying to the rest of the adults:

“I/we am/are agreeing to care for this child.”

Throughout history, we’ve seen various religious traditions capture this idea through ceremonies such as baptisms, baby-namings, and namakarans. Those have endured because of the importance of that public declaration of acquiring parental rights and accepting parental obligations.

It says something about the nature of much libertarian thought that the helplessness of children is understood primarily as relevant to their inability to consent to an agreement to be cared for, rather than as requiring that someone take on the obligation to care for them.

This article was originally published on Bleeding Heart Libertarians.

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