The Pursuit of Intimacy and Parental Rights
University of Southern California Law School
THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed., 2011
USC Law Legal Studies Paper No. 11-4
This paper explores whether parents’ rights to live with their children and to deny others access to those children are justified by the more basic right to form and maintain intimate relationships. Many theories treat parental rights as derivative – indirectly justified by children’s interests. This paper asserts a nonderivative justification based on the value of intimacy to parents.
The paper initially explores the potential intimate relationship between a father and his newborn genetic child. It asks whether the interest in parental intimacy creates any reason to demand access to this particular child. Just as a right to intimacy provides no claim that a particular stranger become my friend, the right to become a parent seems to provide no justification for demanding access to a particular child. The paper argues that duties to care for genetic children – even controversial duties not widely accepted – provide a prima facie right to care for a genetic child. The right to establish an intimate relationship derives from a duty to do so.
The paper next considers rights to maintain ongoing intimate relationships with children. These are often challenged when grandparents or step-parents seek visitation over a parent’s objection, or when a custodial parent seeks to relocate after divorce. I explore two common interpretations of these conflicts, which are pervasive in both legal and moral relationships: that people who knowingly make themselves vulnerable assume risks of loss, or that people who knowingly accept another’s vulnerability owe duties not unreasonably to disappoint those who rely on them.
The paper concludes by considering whether broad parental authority – to exclude others and to direct the upbringing of children – can be justified by the parental right to intimacy. I do not believe intimacy can justify such rights. But I explore briefly alternative parental interests that could ground this right – interests that compare parents with artist and other creative workers.
Number of Pages in PDF File: 23
Date posted: March 2, 2011