Rethinking Children as Property: The Transitive Family

Abstract

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, the Article demonstrates that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by non-marital biological fathers to assert parental rights regularly fail, as states allow only one father to “claim” the child. This approach treats the nonmarital father as a trespasser and categorically favors the fundamental due process rights of the marital father. Analyzing these family law cases along a property framework offers a rethinking of the law’s imbalanced treatment of unmarried fathers. The law’s current approach to paternity disputes reflects a classic model of property rights and ownership rooted in static, rigid, and exclusive claims. This framework ignores the interests of children in their biological fathers while overestimating the reproductive normativity of marriage.