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Child Welfare and Future Persons

Carter Dillard

Visiting Scholar, Vulnerability and Human Condition Initiative, Feminism and Legal Theory Project, Emory University School of Law.

February 23, 2009

Georgia Law Review, Vol. 43, p. 367, 2009

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a moral and legal debate is developing over what duties prospective parents owe their future children and the society with which those children will interact. But increasingly the debate is a muddle of inapposite and conflicting state probation and constitutional law in search of statutory guidance. This Article attempts to cut through it, and to state the intermediate-level principle at its core:

A prospective parent has a moral and legal duty to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit.

The Article then argues for codification of this principle, to be applied in cases of recurring child abuse and neglect.

Number of Pages in PDF File: 79

Keywords: procreation, reproduction, reproductive rights, children, child welfare, child abuse, child negelct, future persons

JEL Classification: K14

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Date posted: February 23, 2009  

Suggested Citation

Dillard, Carter, Child Welfare and Future Persons (February 23, 2009). Georgia Law Review, Vol. 43, p. 367, 2009. Available at SSRN: http://ssrn.com/abstract=1348087

Contact Information

Carter Dillard (Contact Author)
Visiting Scholar, Vulnerability and Human Condition Initiative, Feminism and Legal Theory Project, Emory University School of Law. ( email )
1301 Clifton Road
Atlanta, GA 30322
United States

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