THE CONTENDERS

A child belongs to me, the parent, because she comes from me, making her a sort of second self—or so I have proposed. This is the heart of the matter—the main reason why a particular child is brought to my hospital room after delivery, and why I get to bring that child home. But there’s more to it. It almost goes without saying, but needs to be said: when biological parents have a child, the newborn child doesn’t come into the world from anyone but them—at least, in the way that makes a child self-like. Thus, the biological parent’s claim to the child isn’t in competition with anyone else’s claim. Nobody else even begins to have a claim to the child. Furthermore, it almost goes without saying, you get to take the baby home because the baby needs a caregiver. When your child reaches the age of majority, your parental rights will diminish. Your child will be able to live where he pleases and make all of his own decisions. So there are three crucial factors here: you get to take home the baby you gave birth to because: (1) the baby is a part of your wider identity; (2) the baby is available; and (3) the baby needs a caregiver.

As frustrating as it can be for potential adoptive parents, this puts their parental aspirations in the hands of biological parents. Potential adopters certainly could come to have the parental attitude toward this child or that child, and actual adoptive parents do have all of the attitudes I have discussed. After all, biological conception and gestation aren’t necessary conditions for the parental state of mind, as I argued in chapter 1. But no child is available for potential adopters to regard as another self until biological parents make their children available for adoption. A biological parent and a potential adoptive parent who equally see a newborn as a second self aren’t in competition with each other, because the baby is available to the biological parent and not to the potential adopter, or at least not yet.

When two biological parents compete for custody, it’s more complicated. In most cases, the child was available to both of them, and came from both, and constituted part of the extended identity for both. This accounts for each parent having any claim at all to the child—I am arguing—but isn’t enough to establish an exclusive claim. To resolve disputes between legitimate claimants, other principles have to come into play, but our question is the most basic one: what makes someone even begin to have a custody claim?

My answer is that those for whom an available child is a second self at least begin to have a custody claim. They are contenders. Furthermore, the way children come from their biological parents does have a powerful tendency to make children second selves to their parents. After all, the continuities that connect people to their future selves overlap with the continuities that connect people to their children. People typically do regard their offspring as self-like with good reason. This is not to say there’s no other way to develop the parental state of mind; people do develop it through adoption, and children continue to "come from” from their parents, in many- different ways, after they are born. But the biological connection between parent and child usually forges that connection, at least when certain facilitating conditions are in place.

This story doesn’t tell us which one person should be awarded custody in case more than one person begins to have prerogatives, but that seems fine. The relevant considerations in family court are undoubtedly complicated. It wouldn’t be fine if this story led us to think that custodial prerogatives were ubiquitous—that for every child, there can be dozens of people with prerogatives; and for every adult, there are dozens of individuals with respect to whom they have prerogatives. A bumper crop of prerogatives could be used to construct a reductio ad absurdum of the second-self account, a refutation based on the account’s having absurd implications. But is the proliferation of prerogatives inevitable?

David Archard dismisses the second-self account of parental prerogatives in his book Children, citing just this worry about overabundance. If my biological child is part of my "wider identity”

(to use Robert Nozick’s phrase), Archard points out that other things are as well—"for example, friends, place of work and work colleagues, sports team, private club" He then asks, "My rights to choose for myself do not extend to these things, so why should they extend to my children?” Archard suspects the second-self story is really, beneath it all, just a "thinly veiled” version of the view that parents own their children (a view we will turn to in a moment).

But is the bumper-crop problem really a problem for the second- self account of parental prerogatives? We don’t actually have to say that you get to take custody of your colleagues, not to mention your place of work and sports team, because they don’t fulfill the third clause—they don’t need a caregiver. For the most part, Archard’s problem cases can be dismissed because of the need clause, but it’s also open to doubt that people really have their friends, place of work, colleagues, and so on, as a part of their wider identity in the way they have their children. A child is vastly more self-like to parents than a colleague is, let alone an office. The various features of someone being self-like are either absent or much reduced, in the case of a colleague. For example, colleagues are competitive with each other in a way that parents and children are not; colleagues take some pride in each other, but not to the degree they take pride in their children; colleagues don’t have an inflated view of each other’s virtues—in some cases, in fact, just the opposite is true. It is only in an extremely rare case that anyone uses the language of second selfhood to talk about their colleagues, and when it happens it’s noteworthy how interchangeable that talk is with parental talk: "He was like a father to me,” we say, or "She is like a daughter to me.”

If we say parents have prerogatives when it comes to their children because their children are second selves, we certainly can’t be rigid about this. We have to allow that these prerogatives can be lost, if the parent fails to have the usual parental attitudes and doesn’t treat a child well. The prerogatives can be absent from the start—as in the case of someone intent on abandoning or harming or exploiting their newborn baby. But the initial presumption, the starting point, is that parents have a privileged status with respect to their children—their second selves—like they do with respect to themselves.

 
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