How Do We Acquire Parental Rights?

Abstract

A number of U.S. court cases have heard men, hitherto strangers to their biological child, contest the mother's right to put it up for adoption. Disputes over surrogacy agreements have raised the question of who is the real mother of a child borne by one woman for another. When difficult medical decisions must be made for a child, the default position is that its parents should be the proxy decision-makers. Custody disputes center on which of a couple has the stronger right to parent their children. In all these cases, the judgments made about parenthood are not merely legal or biological, but also moral claims. In this paper I develop a theory of the acquisition of parental rights that can help us make these judgments. According to this investment theory, parental rights are generated by the performance of parental work. Thus, those who successfully parent a child have the right to continue to do so, and to exclude others from so doing. The account derives from a more general principle of desert that applies outside the domain of parenthood. It also has some interesting implications for the attribution of moral parenthood. In particular, it implies that genetic relationships per se are irrelevant to parental rights and that it is possible to have more than two moral parents.