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Parental Rights?

In January of 2005, Jeff Jacoby of The Boston Globe wrote a heartbreaking column about the outcome of a legal case in Florida that elevated the “parental rights” of a birth-couple, who changed their minds years after having given their child up for adoption, over both the “parental rights” of the adoptive parents, who had raised the child from birth, and the emotional interest of the child himself, who was to be taken from the only home he’d ever known and sent away to live with strangers.

It outraged Mr. Jacoby, and it outraged me, that as a society we still allow such miscarriages of justice to happen in the name of some abstract concept of “rights” for parents.  Make no mistake: I understand the importance of such abstractions and the dangers inherent in dismissing them in the name of some particular desirable outcome. But where is our compassion and our common sense?

I wrote the following letter to my Senators, John Sununu and Judd Gregg, and to my Congressman, Jeb Bradley. I also copied the letter to Mr. Jacoby to let him know he’d moved me to some action, however inadequate it might be. I got a personal reply from Mr. Jacoby thanking me for trying. I’m still waiting for a response from my representatives in Congress.

2 January 2005

I commend to you Jeff Jacoby’s column, “When Blood Matters More Than Love”, from today’s (2 Jan 2005) Boston Globe. It concerns the removal, enforced by an American court, of a young boy from his adoptive parents after 3-1/2 years in their loving care because his biological parents changed their minds.

I must ask you, my representatives to the federal government, how it is possible now, after the publicity surrounding other such cases cited by Mr. Jacoby and the untold number of other similar injustices in the past few years that never made the national papers, that this is still possible in America? How is it possible that we are still so willing to sacrifice individual children to the great abstraction of “parental rights”?

I understand the place that abstraction holds in the modern struggle between libertarian (and no-so-libertarian) ‘conservatism’ and the modern nanny state. As a parent myself, I am quite concerned about that abstraction, quite willing to fight the modern tendency for government to intrude ever more deeply into private behavior and private decisions. And as an observer of political history I understand quite well the need to defend principle against even minor and popular encroachments lest such encroachments undermine the foundation of consistency upon which principle is built. Incrementalism is a real and present danger.

But I am a parent who both loved and supported my children from their births, and so my “parental rights” are based on much more secure a foundation than merely shared genes. It would indeed be a travesty for the state to have authority arbitrarily to take children away from their parents at birth in the name of some social vision of the good of the child; at the moment of birth blood is the only criterion we have for making the distinction between “parents” and “everyone else”, and must be decisive. But we must recognize that, thereafter, nurture takes hold and ultimately reigns supreme; that blood becomes less and less relevant as nurture creates psychological and emotional bonds — bonds of love.

Why do we not have, in the realm of family law, a principle in place that is the practical equivalent of the legal philosophical principle of stare decisis — an automatic deference to prior decisions, a presumption that overturning previous arrangements for children’s lives requires a much more compelling justification than mere adherence to the current letter of the law? Why, when considering the “welfare of the child”, is history rather than current circumstance not the dominant and determining factor?

It would seem, despite misgivings about “judicial activism”, that such a shift in emphasis is well within the traditional purview of judges themselves; that they could effect this change instantly if they would merely accept the responsibility.

But, if that is too much to ask, then surely a simple legislative prod would suffice. It doesn’t require overturning the principle of “parental rights”, or even erosion at its foundation. It merely requires a proper deference to prior decisions, and a formal recognition that, over the first few years of a child’s life, the basis of our conception of “parenthood” ought to shift quickly from blood to nurture.

Neither change is a threat to new parents or to parents who have nurtured their children from birth. And frankly it should also not be a threat to those for whom circumstance prevented them from providing such nurture. The truest test of “parenthood” is the willingness to sacrifice for the welfare of your child. “Parents” who are willing to wrench their child away from the only home he has ever known, to sever his ties with those who have loved and nurtured him, to saddle him with lifelong feelings of abandonment and betrayal and instability — and all in the name of asserting some abstract “right” to parenthood — those actions, in and of themselves, are proof against their fitness as parents.

© Copyright 2005, Augustus P. Lowell

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