Abortion is Incompatible With Parental Obligations

The causal principle of parental obligations has radical implications. As outlined in an earlier post, this principle had first been expressed in the eighteenth and nineteenth centuries, but early proponents did not identify any of the far-reaching implications of the idea. In the twentieth century, these implications started to be expressed.

The first radical implication of the causal principle to be identified is that it refutes any justification of abortion in cases of consensual sex. This implication was implicit in the arguments of philosopher Richard Werner's 1974 article Abortion: The Moral Status of the Unborn. Werner did not reference any of the previous authors who discussed the causal principle of parental obligations and it is not clear if he was influenced by them or had deduced the principle independently. However, even if not discussed explicitly, many of his arguments were directly based on this principle.

Werner's article contains a critique of Judith Jarvis Thomson's influential 1971 article A Defence of Abortion. Werner refuted Thomson's analogy between a fetus and a burglar. He pointed out that the salient principle in both cases is that the individual who acts has moral responsibility for the consequences of their actions. In the case of burglary it is the burglar who acts and is responsible, but in the case of pregnancy it is the parents who act (and not the fetus):

In Thomson's case, the burglar is acting immorally by entering the window whether it be opened or closed, locked or unlocked, barred or unbarred. It is this fact which makes us decide that the burglar, rather than the window opener who has every right to open his window, is responsible for his own wrongdoing. On the other hand, the embryo cannot be held responsible for its conception nor is it under any moral obligation not to be conceived. Whether or not it is conceived is entirely dependent on the actions of its parents. It is this fact which should make us conclude that the parents are responsible for the conception and existence of the embryo.

Werner argued that a standard of strict liability tort applies to parental obligations by analogising with firing a gun:

Even if the two take the best possible precautions against pregnancy, they still know or are accountable for knowing that these precautions are not 100% effective and that the foreseeable and natural consequences of their actions may still be an unwanted pregnancy. So, by engaging in intercourse, they are responsible for and obligated to accept the consequences of their actions. This situation is analogous to that of a man who derives great satisfaction from taking target practice with his gun. Unfortunately, he lives in a very crowded community: so he builds the most elaborately protective shooting range possible in the basement of his home. He is. nevertheless, aware that it is only 99% effective in stopping bullets and that use of the range could eventually result in the death of some innocent human. But, because of the great satisfaction he derives, he begins firing his gun in the basement anyway. Now if this man eventually kills someone, surely he is still morally responsible for their death. In firing the gun he knew that one of the foreseeable and natural consequences of his actions may be the killing of an innocent human. Like the two engaging in intercourse, this man has created a special obligation through his actions: they by engaging in intercourse, he by firing his gun in a crowded community.

Doris Gordon was the first advocate of the causal principle of parental obligations both to explicitly identify the principle and to show how it refutes the justification for abortion. Gordon had been greatly influenced by Ayn Rand and the Objectivist movement. Following Rand's staunch defence of abortion, Gordon assumed that being pro-choice was a logical outcome of Objectivist ideas. But she began to question how this could be reconciled with parental obligations.

One of the most influential Objectivists, Nathaniel Branden, had put forward a short statement on parental obligations in the Objectivist Newsletter of 1962. Although he did not express the key role that creation of peril plays in the causal principle, Branden did argue that parents have positive obligations as a result of their actions:

The key to understanding the nature of parental obligation lies in the moral principle that human beings must assume responsibility for the consequences of their actions. A child is the responsibility of his parents, because (a) they brought him into existence, and (b) a child, by nature, cannot survive independently. (The fact that the parents might not have desired the child, in a given case, is irrelevant in this context; he is nevertheless the consequence of their chosen actions– a consequence that, as a possibility, was foreseeable.) The essence of parental responsibility is: to equip the child for independent survival as an adult. This means, to provide for the child's physical and mental development and well-being: to feed, clothe and protect him; to raise him in a stable, intelligible, rational home environment, to equip him intellectually, training him to live as a rational being; to educate him to earn his livelihood (teaching him to hunt, for instance, in a primitive society; sending him to college, perhaps, in an advanced civilization).

On reading Branden's article, Doris Gordon realised that the principle of parental obligations stated by Branden cannot be reconciled with a defence of abortion. The two positions are contradictory. Yet Branden was pro-choice, as all Objectivists were. When Gordon confronted Branden with this problem he refused to discuss it or to accept the contradiction.

Gordon became an anti-abortion advocate. She saw abortion as incompatible with libertarianism in numerous ways, but the central argument she used against abortion was that it violated the principle of parental obligations. She stated this argument in her 1979 article How I Became Pro-Life: Remarks on Abortion, Parental Obligation, and the Draft:

There is no conflict of rights between mother (or father) and child because parents have an obligation to care for their children and, therefore, children have a right to that care. … If children are children before as well as after birth, then parents have the obligation to care for them, also. This means women have no right to choose to kill their unborn or to evict them from their bodies. Mothers have the obligation, instead, to house and feed them and protect them in the womb. … Conceiving children may be unintentional on our part, but having sex is usually a voluntary act and most people know getting pregnant is a possible side effect. We have some choice in the matter of creating children. It is the children who have no choice about being affected when we experience the pleasures of sex. Not only are children not responsible for the consequences of a mother's pregnancy upon herself, neither are they to blame for their need to remain in the womb. This need is something we impose upon them when we create them. The child's life and needs are a package deal. Once having brought children into a state of dependency, we have the obligation to bring them safely out. This means we must wait until they are able to come "out" safely. This also means parental obligation continues after childbirth.

Gordon started the advocacy group Libertarians for Life, arguing against abortion on secular, libertarian grounds. Other contrubutors to Libertarians for Life made similar arguments against abortion based on the principle of parental obligations. For example, in his 1991 article Why Parental Obligation?, John Walker emphasised the that it is creation of peril, not harm, that obliges parents:

When we have sex, we know there is a possibility to bring someone into existence who will be in very grave danger, who will be in harm's way. …The responsibility of parents is, then, not to recompense for any wrong done, but to make sure it doesn't happen. Because they put their kids in that position. The kids are totally dependent upon them, totally subject to their control. They put them in harms way. Well, in some sense, there is no injustice committed by being put in harm's way. The injustice happens when they let the harm befall the kid.

It was not until the early 1990s that some of the other radical implications of the causal principle of parental obligations were identified in an obscure journal article. That will be the subject of a future post.

Where Does The Causal Theory Of Parental Obligations Come From?

The causal theory of parental obligations had odd beginnings. In the eighteenth and nineteenth centuries, the basic principles of this theory were stated by three different thinkers, yet none of these early proponents explored the wider implications of the idea. It was not until the twentieth century that a few people started to realise the enormous significance of this theory. In this post, I will outline how the theory emerged.

The earliest presentation of the causal argument for parental obligations is by the legal theorist William Blackstone in his Commentaries on the Laws of England, published in 1765. Blackstone argued that creating a child entails the obligation to care for it:

The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Pufendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserve

In this brief passage, Blackstone captures some essential features of the causal argument:

1. It is the actions of the parents (in creating the child) that give rise to the child being in peril.
2. If the parents were to fail to care for their children, the result would be that the child will perish.
3. Therefore the parents have an obligation to prevent this happening.

Blackstone credits Samuel Pufendorf as the source of this causal argument, but it is not clear that his interpretation of Pufendorf was correct. In his On the Duty of Man and Citizen (1673), Pufendorf had made a slightly different argument that parental authority rests on natural law and the "tacit consent" of the offspring. It seems to have been Blackstone who first stated the causal argument clearly, although Blackstone himself only offers this brief statement of the argument and does not elucidate its further implications.

The first major philosopher to put forward the causal argument for parental obligations was Kant. There is no evidence that Kant got this argument from Blackstone. He may have read Blackstone or deduced the argument independently. In Fundamental Principles of the Metaphysic of Morals (1797) Kant argued parental obligation comes from bringing an infant into the world without consent and placing it in peril:

From the fact of procreation…, there follows the duty of preserving and rearing children as the products of this union. Accordingly, children, as persons, have, at the same time, an original congenital right — distinguished from mere hereditary right — to be reared by the care of their parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by law, without any particular juridical act being required to determine it. For what is thus produced is a person, and it is impossible to think of a being endowed with personal freedom as produced merely by a physical process. And hence, in the practical relation, it is quite a correct and even a necessary idea to regard the act of generation as a process by which a person is brought without his consent into the world and placed in it by the responsible free will of others. This act, therefore, attaches an obligation to the parents to make their children — as far as their power goes — contented with the condition thus acquired. Hence parents cannot regard their child as, in a manner, a thing of their own making; for a being endowed with freedom cannot be so regarded. Nor, consequently, have they a right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a being into the world who becomes in fact a citizen of the world, and they have placed that being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of right.

Kant clearly set out the creation of peril argument. In this brief paragraph, he captured all the main points of the causal theory. Kant specifically repudiates the theory of parental ownership and argues that children have rights. He also argues against the idea of tacit consent of the child. Instead of a merely biological explanation of obligation, he is making a clear argument that obligation comes from the actions of the parents. However, like Blackstone, Kant did not explore the wider implications of this argument.

The causal argument for parental obligations was restated by the utilitarian philosopher Henry Sidgwick in the 1874 book The Methods of Ethics. Sidgwick had certainly read both Kant and Blackstone, so it seems likely that he knew of the causal argument for parental obligations from their earlier statements of it. He restated the principle in his own words, although this was again only a minor argument in the book and not the main purpose of the work. Sidgwick argued succinctly that parents have causal parental obligations based on creation of peril:

And this leads to what we may conveniently examine next, the duty of parents to children. This too we might partly classify under a different head, viz. that of duties arising out of special needs: for no doubt children are naturally objects of compassion, on account of their helplessness, to others besides their parents. But on the latter they have a claim of a different kind, springing from the universally recognised duty of not causing pain or any harm to other human beings, directly or indirectly, except in the way of deserved punishment: for the parent, being the cause of the child’s existing in a helpless condition, would be indirectly the cause of the suffering and death that would result to it if neglected.

After this brilliantly clear summary, Sidgwick begins to waffle that this issue is all very complicated, and then changes the topic. He did not explore the theory in any more detail. Nonetheless, many later writers who have made the causal argument from parental obligations have referred to Sidgwick as an influence.

What are the implications of this theory that all these early thinkers fail to remark on? This will be the subject of a future post, but one mind-blowing example is that you cannot give up parental obligations.

The Argument from Adoption Does Not Prove That Parental Obligations Are Voluntary

The theory of voluntary parental obligations holds that parents acquire obligations to their children by volunteering for those obligations. The claim is that only those who voluntarily accept the responsibility for parenting a child are obliged to do so, and only from the point that they accept this role onwards, and only unless or until they give it up for adoption. The justification made for this theory is based on claims about how adoptive parents gain obligations. The line of argument runs as follows:

1. Adoptive parents become parents by voluntary agreement.
2. Adoptive parents have the same obligations as biological parents.
3. Any parent (biological or adoptive) may legitimately divest themselves of enforceable parental obligation voluntarily by putting up their child for adoption.
4. Therefore all parental obligations arise from voluntary agreement.

As will be argued in this article, every premise in this line of argument is false, and the conclusion is false too.

1. It Is Not Voluntary Agreement That Obligates Adoptive Parents

The argument that adopters have positive obligations implies that adopted children have an enforceable claim against their adopters. How can this claim arise? It cannot be as a result of contract, since children cannot contract. One might argue over exactly when young adults may be able to consent to their own adoption, but there is no way a young child can be said to consent to being adopted.

Also, any agreement to adoption between the biological parents and the adopters is irrelevant since it cannot explain how the child has a claim on the adopter. It is the child that has the claim and the child cannot consent. The fact that the biological parents and adopters have both consented does not change that.

If the child does have a claim on the adopter, it can only be as a result of tort. A tort claim arises independently of consent or contract. A tort could impose obligations on the adopter as a result of the actions of the adopter. What actions could those be?

The only way that an adopter could have positive obligations to a child is through the adopter being responsible for a child being in a state of peril. As I have argued elsewhere, an adoptive parent effectively removes the child from the obligated caregiver in the child's life, which is the creation of a state of peril, and this gives the adoptive parent a positive obligation to act as the new caregiver.

Even if the biological parents were not fulfilling all their obligations, the adoptive parents are still effectively cutting off any chance that the child has of receiving care from the biological parent. This is the creation of peril, and it is mitigated by the adoptive parent meeting the obligations instead.

Finding an abandoned child and giving it shelter does not create an enforceable parental obligation on the rescuer from the child. Although a rescuer does not acquire parental obligations the minute he saves an abandoned baby, he is temporarily obliged to look after the child whilst in possession of it, and to pass on the child responsibly. This is because a rescuer is effectively precluding the child from anyone else's care in that time and is therefore temporarily responsible for relieving the child's peril during that time. The same temporary obligations apply to foster parents.

Formal adoption differs from rescue or fostering because it entails the exclusion of anyone else from parenting the child. Because of this, formal adoption creates enforceable parental obligations because the adopter is permanently excluding anyone else from caring for the child.

If you tell others not to attempt saving a non-swimmer who has fallen in to a pool because you intend to be the saviour, then you are responsible for relieving that non-swimmer from peril. Having prevented the non-swimmer from benefitting from any other saviour, you now have a responsibility to follow through otherwise you would cause the resultant drowning via creation of peril.

2. Adoptive Parents Do Not Have Exactly the Same Obligations as Biological Parents

The fact that biological parents and adoptive parents both have obligations does not prove that obligations are voluntary. It does not follow that biological parents acquire their obligations voluntarily because adopters volunteer for their role. On the contrary, as argued above, it is the other way around. Adoptive parents acquire obligations in a similar way to biological parents: by tort as a consequence of actions that result in creation of peril (albeit through different circumstances).

The premise that biological parents have exactly the same obligations as adoptive parents is merely an assertion and is not accurate. As I have argued in another post, a biological parent who gives up their child has not legitimately lost their obligation, but rather they have effectively instructed an agent to fulfil the obligation on their behalf. If the adopter failed to fulfil obligations on behalf of the biological parent, the child would arguably still have an enforceable claim against the original parent. In this way a biological parent always has a residual obligation that could be called upon, whereas an adopter has the obligations of a kind of agent. The two are not the same.

3. No Parent Can Legitimately Divest Themselves of Parental Obligations

The fact that the institution of adoption exists is not proof that parental obligation is legitimately optional. As I have argued elsewhere, parents cannot legitimately absolve themselves of their obligation solely by passing on responsibility to an adopter, because a parent's obligation is to the child.. However, if parents are not living up to their obligations, the first concern is the interest of the child.

Accepting the institution of adoption recognises that a bad situation is preferable to a catastrophic situation. If someone fails to comply with their obligations, it is better that they do so in a way that can be mitigated than if they do so in a way that leads to disaster.

It is not legitimate for the pilot of a passenger plane to choose to parachute out mid-flight, but I would still much rather that he made arrangements with someone to take over the plane safely than if he just let go of the controls, parachuted out, and let the aircraft plummet to the ground.

There is no contradiction between the argument that it is in the best interests of children for adoption to be legal and the argument that it is not morally legitimate for parents to give their children up for adoption. Rather, the rationale is simply that in cases where parental obligations are unenforceable, the interests of the children take priority over other considerations.

4. Parental Obligations Arise From Action Not Agreement

The theory of voluntary parental obligations is riddled with problems:

• Since children cannot contract, it relies on an imaginary social contract between parents and every other adult.
• It cannot hold men responsible for any children that they father.
• It cannot explain why the act of volunteering for obligations gives someone legitimate authority over any particular child.
• Lastly, as has been discussed in this post, it is based on an argument from adoption which is false.

The theory of voluntary obligations is wrong because parental obligations are not voluntary. They are the result of causal action. Parents are those who engage in actions that can cause the creation of a child in a state of peril. Parents are responsible for the state of peril and therefore have an obligation by tort to remove the peril.

Adoptive parents also acquire positive obligations through actions that result in creation of peril: adopters exclude a child from their legitimate claim on their biological parents.

But adoption is not exactly the same as biological parenthood. It is complicated by the fact that biological parents never legitimately lose their obligations, which implies that biological parents are always residually obliged, even when they have given up their children to adopters.

Adoption is a kind of damage control. It is a way of making the best of a bad situation. It does not prove the argument that parental obligations are voluntary.

The Theory of Voluntary Parental Obligations Cannot Hold Fathers Responsible for Their Children

Almost all recent philosophical writing on parental obligations is only comprehensible if you understand that it is written from the starting premise that abortion must be valid. The legitimacy of abortion is taken as a given, and all arguments concerning parental obligations or children's rights are made to conform with this assumption.

The fact that most people who write about the philosophy of the family hold the validity of abortion as a core value and starting premise explains the appeal of the theory of voluntary parental obligations. This theory has a big advantage for pro-choice advocates: it is the only theory which is compatible both with abortion and also with parental obligations. This seems to offer the promise of justifying two incompatible positions together.

If you accept the premise that abortion is valid, logically you cannot accept parental obligations, since the two positions are contradictory. Some pro-choice thinkers straightforwardly accept this inference and therefore deny that parents have any obligations. This was the position that Murray Rothbard and Williamson Evers took. Although I believe they were incorrect, at least their position was logically consistent.

However, many pro-choice thinkers do not want to accept the logical implications of denying parental obligations. Rothbard was honest enough to acknowledge that if you deny parental obligations, it logically follows that parents may legitimately starve their children to death. Although many pro-choice thinkers want a theory that justifies abortion, they do not want that theory to also justify abandonment or neglect.

But the theory of voluntary parental obligations seems to offer pro-choice thinkers a way to have their cake and eat it too. If parental obligations are acquired by voluntary acceptance, then it follows that abortion is valid. A woman can choose not to accept parental obligations, therefore she can legitimately abort a child. However, once a parent has volunteered for obligations, then they cannot later abandon or starve their children. So the theory promises compatibility with abortion but not with abandonment or negligence. This pair of positions is what most pro-choice thinkers want to hold.

However, there are many problems with the theory of voluntary parental obligations. One of the biggest problems is this: If parental obligations only come from voluntary acceptance, then there is no way to hold men responsible for any children that they father. Any man who becomes a father can simply declare that he did not intend to or does not want to have children, and the theory of voluntary obligations would imply that he is free of any enforceable claim on him for parental care.

The advocates of the theory of voluntary obligations are reluctant to accept this clear consequence of their theory. Elizabeth Brake is notable as the only advocate who accepts the logical consequence that men do not acquire obligations to a child by fathering the child. She tries to find a workaround to hold men liable towards the women they impregnate. Her argument is that since pregnancy creates costs to a woman, a man can have some liability for his role in causing her to be pregnant. This argument only relates to the mother and still leaves the child without any claim against the father for parental obligations.

Other advocates of the theory adopt contradictory arguments to maintain that obligations are always voluntary but nonetheless argue that reluctant fathers have obligations even if they do not volunteer for them.

Roderick Long has put forward a mess of double standards in an attempt to provide a theory of parental obligations that would somehow achieve three conflicting aims. On the one hand, he wants reluctant fathers to be on the hook for parental obligations as a result of having sex. On the other hand, he wants reluctant mothers not to be on the hook for parental obligations as a result of having sex (because he wants abortion to be a legitimate choice). And to complicate things further for him, he also doesn't want to legitimise abandonment after birth.

These conflicting aims led Roderick Long to a bizarrely inconsistent theory of parental obligations. He argues that whether a father has any obligation to his child is entirely the choice of the mother, but if the mother does wish it, then the father is positively obligated to provide care based on the father's tacit acceptance of obligations via his action of having had sex. On the other hand, a mother has no positive obligations to her child based on her action of having had sex, but rather if the mother chooses not to have an abortion then this is tantamount to voluntarily accepting the positive obligation not to abandon the child once born. Go figure.

Joseph Millum is another advocate of the theory of voluntary parental obligations who nonetheless tries to argue the contradictory point that reluctant fathers are still obligated even if they don't volunteer. His argument is that social conventions dictate what constitutes tacit voluntary acceptance. In his view, abortion is socially accepted but being a deadbeat dad is not. Similarly to Roderick Long, Millium argues that women can decline parental obligations via abortion but men always tacitly accept the potential of parental obligations by the act of having sex. So men have obligations even if they didn't want a child but women do not. Millum thinks that an explicitly double standard like this is fine as long as it is in line with social conventions, since that is what counts for him.

Why Fathers Have Obligations

There is a theory of parental obligations that has no problem explaining why fathers are accountable to their children. According to the causal theory of parental obligations, this is why parents have obligations:

1. Parents are those who voluntarily make their gametes available for fusion, usually through consensual sex or sometimes through artificial means.
2. A forseeable outcome of making your gametes available for fusion is the creation of a child.
3. A consequence of the act of creating a child is that the child is in a state of peril.
4. Therefore parents are responsible for the state of peril of their child. This creates a positive obligation as a tort to get the child out of peril. This means raising the child to the self-sufficiency of adulthood.
5. Since the obligation results from the consequences of the parents' voluntary actions and not their intentions or agreement, parents still have obligations even if they didn't intend to create a child or do not want to be parents (with some exceptions).
6. Since both parents made their gametes available, both are jointly and severally liable for parental obligations.

Parents have obligations to their children as a result of their actions, not their declared intent. This account of parental obligations is entirely consistent and non-contradictory. It obliges both mothers and fathers. It presents a challenge for most writers on this topic though, because accepting the logic of the argument would force them to reassess one of their most deeply held premises: the assumption that abortion is justified.

Why Libertarians Mistakenly Think Parental Authority is a Homesteaded Property Right

If you put an individual in a state of peril, you have a positive obligation to get them to safety. Not only must you take whatever reasonable actions are necessary to save them, you may also undertake these actions without their consent, if your actions are justifiable in fulfilment of your obligation. For example, if you push someone into a lake who cannot swim, you must get them out before they drown or you will have committed homicide. If you need to pull them back onto land, you must do this even if they are so panicked that they flail around and attempt fight you off while you do so.

This basic principle provides a clear logical grounding for both parental obligation and parental authority. If you accept that parents have a causal responsibility for the peril that children face as a result of creating them, then it is easy to understand why parents are justified in having authority over their children to undertake whatever steps are necessary to get them out of peril. In the case of children, peril ends when the child becomes a self-sufficient adult. So parents are obliged to undertake whatever care is necessary for a child to grow into a self-sufficient adult. This causal theory not only explains what parental obligations are, but also specifies which individuals are obligated to care for each specific child.

However, most libertarian theorists do not view parenting in this way because they have denied the existence of all positive obligations except those agreed to voluntarily (i.e. by contract). When it comes to parenting, this has resulted in libertarians either denying that children have any enforceable claim against their parents for care (as Rothbard and Evers did) or arguing that children only have a claim if parents voluntarily commit to assuming obligations for their children (as Steve Horwitz and Roderick Long did).

This has left libertarians with a big problem when it comes to explaining why parents have authority over their children. In the absence of a theory of obligation, what gives any person the right to claim authority over anyone else? Also, without a theory of explaining why specific parents must care for specific children, why should any particular person have the right to act paternalistically towards a specific child?

Libertarians have attempted to solve this problem by applying the concept of homesteading to parenting. Their line of argument is as follows:

1. There are no positive obligations, so people only have the role of parent if they voluntarily choose to assume it. All parents are volunteers.
2. For any given child, there could be competing claims to act as the parent of the child, since multiple people could volunteer for the role. This could lead to conflict.
3. Libertarianism solves the potential for conflict arising from rivalrous claims by assigning a property right using the principle of homesteading. The rule used is that the property right justly belongs to the first person to perform whatever acts are necessary to make a claim.
4. Therefore, the solution to who gets to parent a child is to consider parenting as a property right and identify the acts necessary to claim it.

Opinions differ among libertarians on various details, such as what act constitutes homesteading a baby. But all proponents agree on the basic proposition that parenting a child is a rivalrous good and homesteading is the rule used to allocate it.

Those who argue that parental authority is a homesteaded property right imply that parental obligation comes attached to the homesteading of that property right. This is because– according to this theory– everything to do with being a parent is a homesteaded property right. The idea is that one homesteads a bundle of rights associated with the role of parenthood, such as the right to exclude others from parenting the child and the right to exert paternalistic authority over the child.

However, if you accept that parents have causal obligations, then the concept of homesteading parental authority as a property right is nonsensical because parental authority derives from parental obligation. Parental obligation is antecedent to parental authority. Parental obligation provides both the justification of parental authority and the criteria to set limits on it. Therefore parental authority can only be secondary to and derived from obligation. It is only because libertarians do not understand this that they invented the idea of parenting as a homesteaded property right.

The entire theory of homesteading parental authority has been adopted by libertarians because they do not have a causal theory of parental obligation. If they had such a theory, it would be self-evident that the idea of homesteading a child is absurd.

The Idea of "Voluntary" Parental Obligations Is a Social Contract Theory

In an earlier post I described three theories of the relationship between parents and children:

1. The Theory of Parental Ownership: parents own their children as property.
2. The Theory of Parenting as Charity: any care that parents provide for their children is a result of the parents voluntarily choosing to be "good samaritans".
3. The Theory of Parental Responsibility: parents have enforceable obligations resulting from the creation of peril.

This post introduces a fourth theory of the relationship between parents and children: the idea of "voluntary" parental obligations. This fourth theory accepts the legitimacy of enforceable parental obligations, but argues that these obligations can only be voluntarily assumed. So parents do have enforceable obligations, but only if they have voluntarily agreed to them. Let's look at the two lines of argument used to justify this theory.

Argument 1: There Are Only Two Sources Of Obligation

The main line of argument for this theory is as follows:

1. Enforceable positive obligations can only arise from two sources: voluntary agreement, or as restitution for having committed an act of aggression.
2. Creating a child is not an act of aggression.
3. Therefore, parental obligations must be a result of voluntary agreement.

This argument was made by Judith Jarvis Thomson and has also been made by Elizabeth Brake. A voluntary agreement that gives rise to obligations is a contract, so this can be called a contract theory of parental obligations. Contracts can either be explicit or implicit.

Argument 2: Adoptive Parents Prove That Parental Obligations Are Voluntary

There is an alternative line of argument for this theory, which runs as follows:

1. Adoptive parents have the same obligations as biological parents.
2. Adoptive parents become parents by voluntary agreement.
3. Therefore parental obligations arise from voluntary agreement.

This second argument has been made by Williamson Evers and by Roderick Long.

The Problem: Who Is The Agreement With?

The problem for the theory is that any agreement or contract made by the parent cannot be with the child, since children cannot make valid contracts. Before the child comes into existence there is nobody to contract with, but even after the child has been created he cannot consent to contracts until he is an adult.

All theorists who have discussed this idea acknowledge that children cannot consent. Given that the contract is not with the child, it must be argued that parents are contracting with someone else. If parents were simply to declare to themselves that they choose to accept obligations, that would not create any kind of enforceable claim against them. They could change their minds at any time and nobody would be able to argue otherwise. So who are the parents contracting with?

Theorists attempt to resolve this problem with the following argument: by volunteering to be a parent, one makes an implicit contract not with the child but with society at large (i.e. with all other adults). By voluntarily taking on the role of parent, one commits oneself to society at large to assume obligations towards the child.

A Social Contract Theory

As should now be clear, the theory of voluntary parental obligations is a social contract theory. According to the theory, parents are making an agreement with society at large that obliges them to care for their children. It is not the child who has an enforceable claim on the parents, rather it is "society" that has the claim. Joseph Millum, a proponent of this theory, summarised the argument in his book The Moral Foundations of Parenthood:

parental responsibilities are acquired through the performance of certain voluntary acts that signify the taking on of parental responsibilities… Social convention determines both which acts have this significance and exactly what responsibilities are taken on … the core of parental responsibilities is the provision of certain goods that all children are owed as a matter of justice. Parents provide these goods on behalf of society.

The Libertarian Critique

Libertarians deny the validity of positive obligations to society at large. According to libertarianism, individuals only have negative obligations to society at large. An individual can have positive obligations with specific individuals arising from contract, tort, or restitution. But such positive obligations are not with society at large.

Therefore, the idea that parents contract with society at large should be viewed as a self-refuting idea by libertarians. Indeed for some it is: Williamson Evers and Murray Rothbard rejected this theory on these grounds.

As a side note, Evers and Rothbard went further to assume that all theories of parental obligation must be based on the illegitimate idea of social contract, so they thought that this refutes the idea of positive parental obligations as a whole. I argue that they were incorrect in that broader second conclusion. However, their first conclusion– that any theory based on the idea of a contract with the rest of society must be invalid– clearly follows from basic libertarian principles.

Libertarian Social Contract Theorists?

Some libertarians apparently didn't get the memo about the problem with social contract theories. They argue that this is indeed the basis of parental obligations. Steve Horwitz provided a version of the argument:

parental obligations come when parents engage in the positive act of treating the child as theirs by asserting their parental rights … “Treating the child as theirs” is a kind of public declaration of the exercise of parental rights … You can think of taking a child home from the hospital as analogous to homesteading: you are declaring to others (not to the child) that this child is yours and that you thereby accept the responsibilities to care that come with exercising those parental rights … accepting parental rights but refusing to accept the corresponding obligations to care for a helpless child is form of breach of contract. Again, the contract is not with the child, but with “the rest of us.” Given the helplessness of infants, someone has to provide that care and those who act in ways that exercise parental rights simultaneously announce their willingness to accept the obligation to care.

Walter Block advances a bizarre version of social contract theory as the basis of voluntary parental obligations. Whereas Horwitz put forward the idea plainly, Block uses extremely convoluted arguments that ultimately reach the same destination, whilst simultaneously denying that he has done any such thing.

Block asserts that parents cannot withhold care from children as they would be committing a kind of forestalling against other potential caregivers. His justification involves a lot of hand-waving about the rules of homesteading and the rules determining what constitutes abandoning something. He repeatedly denies that any positive obligations are implied in his argument, which seems like sophistry to me. Ultimately his argument amounts to this: if you choose to parent a child, you voluntarily take on an obligation to care for the child or else immediately inform everyone else that they can parent him instead. According to Block, this is because you are homesteading the child and this makes you bound by various rules governing homesteading and abandonment. However, the obligation you have is to the rest of society and not to the child.

Conclusion

Here are the key features of the theory of parenting as a voluntary social contract:

1. Parents only acquire obligations to their children if they choose to do so voluntarily.
2. Parental obligations are a result of agreement or contract. This can be a tacit agreement or implicit contract.
3. The contract is between the parent and the rest of society, not with the child.

The dependence on the idea of social contract is not the only problem with the theory of voluntary parental obligations. There are many other problems with the theory that refute it. I will address these in a future post.

You Cannot Give Up Parental Obligations

The theory of parental responsibility is a simple idea with profound implications. Parents are causally responsible for placing their children in a state of peril, as a result of having created them. This is why parents have enforceable positive obligations to their children. The obligations are to remove the peril by raising the children to the self-sufficiency of adulthood. One of the mind-blowing implications of this idea is that parents cannot legitimately give up or pass on their obligations.

Imagine the following scenario: I am your neighbour and I have decided to make a huge bonfire in my garden. The fire begins to burn out of control, at risk of spreading and setting fire to your house. I call the fire brigade, who arrive before the flames have reached your house. I decide I am not enjoying this stressful situation, so I leave the firefighters to their work and walk off. Despite their efforts, the firefighters fail to contain the blaze and you return home to find that your house has been burned down.

When you confront me about what I have done, I make the following argument in my defence:

Yes, I may have started the fire that created the risk to your house, but I called the fire brigade to deal with it, so I passed on the problem to them. When I left, your house was untouched. If the fire brigade didn't stop the fire from reaching it, it is their fault. As soon as I passed the problem on to them, I wasn't involved anymore. If you have a problem, you should take it up with them.

Clearly this is not a legitimate argument. You would be right to object that I am the one who caused the problem in the first place. Regardless of whether I sought help to address the problem, I am still ultimately responsible for creating the risk to your property. Even if some kind of negligence on the part of the firefighters contributed to their failure to stop the blaze, that might imply some additional liability for them, but that surely would not get me off the hook for my role in creating this mess.

Here is another scenario: I push you into a lake and you cannot swim. I am also unable to swim, so I could not rescue you myself even if I wanted to. However, my inability to swim does not mean that I am free of any responsibility to you for your predicament. As the one who pushed you into the lake, I am obliged to get you the help that you need, otherwise I will be responsible for homicide. I must find help, such as a lifeguard or some volunteer willing to jump in to save you. And if the lifeguard or volunteer tries and fails, I am still responsible for your peril. I don't get to just walk off. I'm not off the hook for the problem I caused just because I asked someone else to try to sort out the problem for me. It is still my fault that you are drowning.

The important point about these scenarios is that I do not lose my obligation to you, even though I delegated actions to someone else. Although I can legitimately engage an agent to act on my behalf, I am still ultimately responsible for the obligation. Regardless of any agreements I make with my agent about what they will do for me, that doesn't change the obligation that I still hold to you because you never agreed to release me from my obligations. The same logic applies to parental obligations towards children.

Unintended Parenthood

Applying the principle to cases of unintended parenthood shows that parental obligations cannot be simply given up. The principle is that obligations can be incurred for the consequences of one's actions if those consequences were reasonably foreseeable, regardless of whether the consequences were intended or not.

Even if I did not intend to let my bonfire get out of control and burn down your house, I'm still responsible if that happens. Furthermore, even if I did my very best to stop the fire once it got out of control, I'm still the one who created the risk of an enormous bonfire in the first place. I'm still responsible.

The same logic applies to parents who did not intend to have a child. Parents cannot absolve themselves of obligations on the basis that they never wanted to have kids, nor on the basis that they actively tried to prevent this outcome by using contraceptives. If you take actions that could result in the existence of a child (i.e have consensual sex) then you are responsible for the child, even if you didn't intend it or want it. As Nathaniel Branden put it;

The fact that the parents might not have desired the child, in a given case, is irrelevant in this context; he is nevertheless the consequence of their chosen actions–a consequence that, as a possibility, was foreseeable.

Even if one parent is willing to raise the child alone, the willing parent cannot legitimately offer to be a single parent and to relieve the reluctant parent of all obligation. This cannot be done since the obligation is to the child, not the other parent. Parents are jointly and severally liable to their children. The children have legitimate claims against both parents to fulfil parental obligations. In fact, what the willing parent in this scenario would effectively be "offering" is to collude in denying the child his legitimate claims on one of his parents. Regardless of whether or not the unwilling parent accepted such an offer, it would not relieve his or her enforceable obligations to the child.

Parents Who Give Up Their Child For Adoption

Parents cannot absolve themselves of their obligation solely by passing on responsibility to an adopter, because a parent's obligation is to the child. Since a child cannot contract, the child cannot be said to have agreed to give up his claim on his parents. Therefore, parents who give their child up for adoption cannot rely on this act removing their obligation under the objective rule of creation of peril.

If I push you into a lake, my inability to swim does not mean that I am absolved of my responsibility to save you from drowning. I must find someone to rescue you on my behalf. Similarly, if parents cannot raise a child, they must find someone else to do so. But this does not absolve them of obligation for the child's peril.

If parents give their child up for adoption, this act should rightly be construed as delegating the responsibility to the adopters to fulfil the obligation on their behalf. The biological parents still remain the ultimate obligation holders. Therefore, if the adoptive parents were to mistreat the child, the biological parents could share liability for this crime since they still have enforceable positive obligations to the child.

As I have argued elsewhere, a victim of rape does not have parental obligations and so may legitimately give up a resultant child for adoption. However, no parents who have obligations can legitimately lose those obligations with adoption.

Although a biological parent cannot absolve themselves of parental responsibility by giving up a child for adoption, there are some circumstances when they can legitimately pursue adoption as a form of delegating responsibility. If the parents are objectively unable to look after a child (for example, owing to debilitating or terminal illness) then it would be a legitimate act of fulfilling parental obligations to delegate responsibility to an adopter. If for some reason the parents are demonstrably incompetent to look after themselves, let alone a child, then it would be legitimate to delegate responsibility to adopters.

Even in such cases, the biological parents do not absolve themselves of enforceable obligation. Calling on adoptors is like calling the fire brigade to put out my bonfire or calling a lifeguard to save someone I pushed into a lake. The actions of such rescuers do not absolve the person who caused the peril from their ultimate responsibility.

Given that a child can never be said to consent to adoption, the biological parent has never really lost their obligation, but rather they have effectively instructed an agent to fulfil the obligation on their behalf. If the adoptive parent failed to fulfil obligations on behalf of the parent, the child would arguably still have an enforceable claim against the original parent for having failed to fulfil their obligations.

Whether it is legitimate or not, some parents do in fact give up children for adoption, and it may well be in the best interests of the children for everyone to support this process even in cases where the delegation is not justified. Supporting adoption does not change the fact that the biological parents are failing to fulfil their valid obligations, but adoption may just be the best way to address a bad situation and ensure that a vulnerable child receives care.

Many have argued that is best to recognise the institution of bankruptcy, even though they also think that it is wrong to default on debts that have been voluntarily incurred. In a similar way, I do not think that the practice of adoption should be banned even in those cases where it is a clear dereliction of parental duty, but that does not imply that it is legitimate for parents to fail to fulfil their obligations.

Even if adoption is in the best interest of the child, it is also in the best interest of the child for the unfulfilled obligations of the biological parents to remain actionable in case the child needs them. This could involve financial support, forced heirship, or other ways in which a biological parent's obligations could be enforced.

Gamete Donors/Sellers

Since parents cannot legitimately pass on their obligations, the practice of gamete donation/sale must be illegitimate. Gamete donation/sale involves an unjust abdication of parental obligation by the gamete owner.

As has been argued by James Lindemann Nelson and Rivka Weinberg, making one's gametes available is the crucial act necessary to create a child. Therefore, those who make their gametes available are the parents of any resultant child. In most cases the parents are simply those who made their gametes available through having sex. In the case of gamete donation or sale, the sperm or egg donors/sellers are parents. They may have used other means than sex, but they are nonetheless the ones who made their gametes available.

This means that gamete donors/sellers are parents who are not fulfilling their obligations to their children. It would be wrong for me, as your neighbour, to start a huge bonfire in my garden that I know will endanger your house, and then walk off knowing that I have created a risk to you. Similarly, it is wrong to take actions that you know will create a child who is in peril and then remove yourself from any responsibility for the peril that the child faces.

This is the most wantonly irresponsible kind of parenting, since the parents deliberately cause the creation of children whilst never having any intention of fulfilling their obligations. They do not even have any involvement in ensuring that the adopters are able to fulfil obligations on their behalf. They take no care of the children that they cause to be created.

Conclusion

Even if a different set of people are arguably better candidates to raise a child (by having more resources, a more stable home etc), this does not legitimate a transfer of obligation by biological parents. As James Lindemann Nelson has argued:

It is not so much a question of knowing that the biological parents can do a better job than possible replacements; it is more a matter of continually being at hand to answer for one's own responsibilities. With respect to anyone else, the best I can do is predict that they will fufill their duties, but my relationship to my own agency is categorically different; I can bring myself—at least sometimes—to perform my duties.

Parental obligations are only fulfilled once a child reaches the safety and self-sufficiency of adulthood. At this point, the peril that the child faced as a result of being created has been overcome. Once the child has become an independent person capable of taking responsibility for his own actions, the parents are no longer obliged to remove the peril associated with childhood as the peril has dissipated. But until they are grown up, you have enforceable obligations to any and all children that you create.

The Only Ideal of Libertarianism is Peace

Correctly conceived, the purpose of ethics is to provide an objective means for the peaceful resolution of all potential conflict over scarce resources. Ethics achieves this by identifying those objective rules that are consistent both with the logic of argumentation and with the limits set by reality.

The only ideal that underpins this ethical system is the desirability of peace itself. Therefore, this is the only ideal that libertarians need to agree on. All other goals that have been associated with libertarianism are merely a consequence of this single ideal and are not fundamental.

The popular idea that libertarianism is fundamentally about the ideal of individual freedom is therefore misconceived. Individual freedom is a consequence of the ethical system that requires respect for ownership of one's body and of other rivalrous objects. The goal is the peace created by objective property rights. Individual liberty is the effect of that goal's successful implementation.

Similarly, economic prosperity is not a goal of libertarianism, correctly conceived. One could be an ascetic who is entirely uninterested in prosperity and still be a libertarian in good standing. Empirically, it happens to be the case that people tend to enjoy prosperity and so, if left in peace, they will create it. But this is an empirical consequence of implementing the ideal of peace– a different ideal to prosperity.

Another ideal that is sometimes ascribed to libertarianism is the goal of eliminating deference, hierarchy, and tradition. This may reflect the historical origins of libertarianism in the Enlightenment, which challenged certain traditions and hierarchies of the time which were inconsistent with objective property rights founded in rational argument. However, there is no inherent incompatibility between objective property rights and the existence of deference, hierarchy, or tradition. It depends on the specific social practices and institutions. Those that violate objective property rights are incompatible with libertarianism, but those that do not are compatible with it.

Lastly, the ideal of the pursuit of happiness has often been ascribed to libertarianism. Although the actions of every individual can ultimately be said to be in pursuit of his or her happiness, this is irrelevant to the problem of ethics. When we are concerned with how to avoid conflict over scarce resources, we are asking how to determine who should have rightful control of each scarce thing. The pursuit of happiness doesn't come into it. You achieve peaceful coexistence with others by mutual respect for property rights. Whether or not everyone is happy is their own business.

The implications of this understanding is that libertarians should always focus first on those issues that concern challenges to peace. That is why opposition to war, or noninterventionism, is the most important cause for libertarians when it comes to international issues. Closer to home, opposing any challenge to peaceful enjoyment of property rights should be the focus for libertarians– whether that is from the State through taxes or government edicts, or from private criminals through violent crime, property crime, civil disorder, looting, and so on.

Abortion Is The Worst Violation of the Nonaggression Principle

In much of the world today, a similar proportion of pregnancies end in abortion as the fraction that in centuries past ended in infanticide… If abortion counts as a form of violence, the West has made no progress in its treatment of children. Indeed, because effective abortion has become widely available only since the 1970s… the moral state of the West hasn’t improved; it has collapsed.

- Stephen Pinker, The Better Angels of Our Nature

Worldwide, 73 million abortions take place annually. That is equivalent to the total deaths of the Second World War, taking place every single year. Over a third of all innocent children that start life in the modern world are killed by abortion.

Given these numbers, this single issue surely represents the worst violation of the nonaggression principle in our times. It is far worse than any government program. It is a more egregious violation of the nonaggression principle than war, taxation, or fiat currency. Yet libertarians not only fail to criticise it, they actually provide moral sanction for this practice.

If libertarians argue that abortion is justified, they cannot object to any particular motive for abortion. They cannot object to the extermination of children with down syndrome for eugenic reasons. They cannot object to the extermination of girls for misogynist reasons. From 1970 to 2010, approximately 105 million females were missing in China and India due to selective abortion. Their own logic compels libertarians to view such practices as perfectly legitimate.

Not only is support for abortion incompatible with libertarian theory, it is arguably the worst thing that libertarians could possibly choose to support in present times.

Rights Cannot be Based on Physiological Characteristics

The theory of acquired rights holds that everyone starts life without rights and only qualifies for rights once he or she demonstrates some characteristic or ability. Different qualifying criteria for rights have been proposed, all of which have problems.

In previous posts, I addressed the issues with using potential for rationality and demonstrated rationality as qualifications for acquiring rights. This post discusses the problems with using physical or physiological characteristics as the qualification for rights.

Various physical or physiological characteristics have been proposed by adherents of the theory of acquired rights as criteria for rights. For example, Jason Sorens advocated having a brain that can sense pain and demonstrate sleeping and waking states. Wendy McElroy argued that being no longer attached to the mother (i.e. birth) is the qualifier. Whatever physiological criteria are advocated, the following problems apply.

Physiological Criteria Are Arbitrary and Irrelevant

Physiological criteria have no relationship to the problem that rights are created to solve. Therefore, they are arbitrary and irrelevant to the question at hand. The purpose of ethical norms is to prevent conflict over scarce resources. Any criteria for rights has to have some relationship to the problem rights are solving: the need for objective rules to avoid fighting in a world of scarcity.

This is why rationality must play some role in the criteria for rights. Since rationality is the tool used to create moral rules and the tool used to agree such rules, it makes sense to argue that rationality is in some way involved in determining rights (the exact way is discussed here). Rationality creates its own issues for rights theory, but at least it is not arbitrary. In contrast, what have physiological criteria got to do with rights?

Physiological Criteria Entail Both Animal Rights and Human Infanticide

If rights are based on physiological capability, the logical implication is that drawn by Peter Singer: higher mammals have a right to life and human newborns do not.

Any merely physiological capability (as opposed to rationality) would include higher mammals. Some adult higher mammals demonstrate more physiological and mental capability than a human baby does.

Any rule granting rights to a human baby on the basis of its physiological capabilities would have to outlaw killing of animals, since the baby is less capable than a higher mammal.

Therefore, if rights are based on something physiological, you end up with Singer's conclusion that higher mammals are persons with rights and newborn humans are not. Animal rights are a logical consequence of demanding specific physical capability for rights.

If a theory ends up granting rights to animals, it is incoherent as a theory of ethics. We are no longer addressing the problem of how to create rules to avoid conflict over scarce resources, since animals cannot agree or uphold moral rules.

Rights Cannot Be Based on Demonstrated Rationality

According to the theory of acquired rights, an individual starts life without rights and only qualifies for rights once he or she demonstrates some characteristic or ability. One of the many problems of this theory is defining the qualification criterion.

One version of the theory is that an individual has rights when he has the potential to be rational in future. As discussed in a previous post, this argument actually supports the theory of inherent rights, not acquired rights.

Another version of the theory holds that the qualification required to have rights is demonstrated rationality. According to this version, an individual acquires rights once he demonstrates rationality. Therefore, before an individual acquires rationality, he has no rights. This theory is logically indefensible for the reasons set out below.

It Permits Infanticide

If an individual's ability to reason is his qualification for rights, then children have no rights because children are not rational. A newborn baby cannot be said to demonstrate rationality any more than a newborn foal does. Children cannot be said to exhibit rationality until some significant period of time after birth, unless rationality is redefined so broadly that it would have to include all higher mammals (making the theory incoherent).

A norm of withholding rights until an individual demonstrates rationality would logically permit infanticide, since a newborn child cannot be said to demonstrate rationality. This implication is not one that most advocates of acquired rights theory are willing to accept, yet this must be accepted if one is to argue that children only qualify for rights once they demonstrate rationality. Most advocates of the theory choose to ignore this implication and thereby contradict themselves. Occasionally, one chooses to accept the reductio and make an absurd "libertarian" case for infanticide.

It Is a Conflict-Generating Norm

A norm of respecting rights only once an individual has demonstrated any capability would lead to conflict, and is therefore an invalid norm. It is invalid as a moral rule because of the presumption of rights: you can't demand proof that someone deserves rights, you must presume they do until proven otherwise.

It Is a Non-Universal Norm

Any rule for withholding rights until a specific capability is demonstrated breaks the universality requirement of norms as inter-subjectively ascertainable based on relation of person to physical thing. This is another reason that it is invalid as a moral rule.

The failure of a norm to comply with the universality requirement always has disastrous implications. In this case, the idea of rationality as the qualification for an individual's rights implies justification of class rule by a self-declared elite who may judge the rights-worthiness of others (i.e. the self-declared rational judging whether others meet their definition of rational).

Reason Is Intermittent, Rights Are Not

Reason is by nature an intermittent capacity, so basing rights on demonstrated rationality logically entails removing rights from everyone at numerous points in their lives, or else the theory requires an endless list of arbitrary exceptions. Does someone lose their rights whilst asleep? Does someone lose their rights whilst intoxicated? What about if they are in a coma? People in all these cases fail to demonstrate rationality, so the theory would deprive them of their rights or else fall into a mess of contradictions.

Conclusion

Although reason does play an important role in determining the scope of rights, demonstrated rationality cannot be a criterion for rights. The correct role for reason in rights theory is in the theory of inherent rights, described here.

The Role Of Rationality In The Theory Of Inherent Rights

Rationality is what enables humans to create norms for the avoidance of conflict over scarce resources. Norms allow for peaceful cooperation between people in a universe of scarcity. The validity of any proposed norm is determined through reasoned argument by the logic of argumentation itself. Rationality is the necessary tool in this endeavour.

Although norms are developed and validated in the course of rational argument by those engaged in argumentation, these norms apply to all humans, not just those doing the arguing. Norms are universal for two reasons:

1. The logic of argumentation entails universal applicability of norms to all those who are in principle capable of agreeing them.
2. All humans are in principle capable of agreeing to norms at some point in their lives.

These norms do not apply to animals, since animals are not capable of agreeing to or upholding norms.

In short, humans need norms in order to avoid conflict and rationality is the tool used by humans to create and validate norms.

This is how the role of rationality is understood in the theory of inherent rights.

Support for Abortion Has Corrupted Libertarian Theory

Rightly conceived, libertarian philosophy can provide a beautiful moral understanding of parental responsibility. It provides a philosophical foundation for parental authority, as well as delineating the limits of that authority. Only libertarianism provides a sound philosophical basis for respecting children as individuals with rights.

It is utterly strange that modern libertarian theory does none of this. Modern libertarianism denies parental obligations, denies parental responsibility, and has nothing coherent to say about parental authority. Libertarian positions on family matters are often criticised and ridiculed. Unfortunately some of the criticisms are well founded, but not because of a fault of libertarian principles.

As I tried to understand why libertarians have adopted some absurd positions on parenting, I realised that many of the worst ideas can be traced back to one key assumption. What seems to have happened is that libertarians adopted a huge error in the mid-twentieth century that has profoundly distorted their principles. For whatever reasons the error was made, it has had devastating consequences on the wider libertarian theory of the family.

The error is the assumption that libertarian theory necessitates a defence of abortion. This is incorrect. On the contrary, libertarians departed from their own principles in significant ways in order to accommodate a justification for abortion.

This article identifies a series of errors in modern libertarian theory and shows how each one can be traced directly back to the position libertarians adopted on abortion in the mid twentieth century.

The Denial of Parental Responsibility

Support for the right to abortion is one of the main reasons that libertarians give for denying that parents have positive obligations to their children. One cannot accept the validity of both parental obligations and the right to abortion without contradiction: the two arguments are incompatible. Libertarians who have written on the subject have chosen to deny parental obligations.

For an intellectual tradition that is supposed to emphasise taking personal responsibility for one's actions, this has led libertarians to adopt truly bizarre arguments on parenting. Their denial of parental obligations has logically compelled them to conclude that

• deliberate starvation of children is permissible,
• all forms of neglect are permissible, and
• parents can legitimately abandon their children whenever they want. Libertarian principles do not demand such conclusions. There is a coherent libertarian theory of parental responsibility which does not imply any of these positions. It is just not compatible with abortion.

The Distortion of Rights Theory

Libertarianism draws on a long-established argument that rights are inherent and inalienable. This argument was made as far back as the Levellers and is famously expressed in the Declaration of Independence.

In order to accommodate abortion, libertarian rights theory had to be changed from inherent rights to acquired rights. The only way to justify abortion is if there is a window of time in which a child does not have rights, and the only way to achieve this window is to change your theory from one in which rights are inherent to one in which rights are acquired. This is what libertarians have done.

Adopting a theory of acquired rights has terrible logical implications. It implies that children can be owned, at least for a period of time. This means that libertarians must concede that the ancient, illiberal idea of parental ownership is valid in some circumstances.

In order to accommodate abortion, libertarians have had to concede that killing innocent children can be justified in certain circumstances. Having conceded such a vital principle, libertarians are unable to provide consistent theoretical grounds for opposing infanticide. Any theory that states a child may be owned logically permits infanticide. The point at which a child is said to acquire rights in this theory is arbitrary (which is why libertarians can't agree on when this takes place). There is no objective reason under the theory of acquired rights that a newborn infant can't also be treated as property. How can libertarians who advocate a theory of acquired rights give a principled rebuttal to Peter Singer's argument for the legitimacy of infanticide? Singer's justification is grounded in the same theory of acquired rights that pro-choice libertarians have adopted.

The correct libertarian theory is that rights are inherent and inalienable, and that humans cannot be justly owned under any circumstances. The crucial error preventing libertarians from theoretical clarity on the subject is their support for abortion.

The Abandonment of The Presumption of Innocence

Libertarian theory holds that the burden of proof is always on those who wish to deny an individual's rights, just as the burden is on those who wish to deny the legitimacy of an existing owner's property rights. Rights are only forfeited through criminal act. If there is any doubt as to an individual's rights, he or she must be presumed to be innocent. Denying rights to the innocent is always unjust.

The only way to accommodate support for abortion is to abandon the presumption of rights. Libertarians are engaged in a reverse burden of proof fallacy whereby they presume to ask for proof of rights for an unborn child, despite the fact that the burden of proof is always on those who deny rights. Abandoning the presumption of rights undercuts the philosophical basis for such liberal principles as the presumption of innocence. It leads libertarians to advocate a conflict-generating norm: the idea that it is legitimate to start from the assumption that strangers are non-persons (and therefore fair game for aggression) unless and until their rights-worthiness is proven.

The Invisibility of Fathers in Libertarian Theory

Another logical consequence of support for abortion is that libertarians must deny that men have any responsibilities as a result of fathering children. This is a consequence of rejecting parental obligations in order to accommodate abortion. It is ironic that although libertarians distorted their principles in support of an ostensibly feminist cause (abortion), this has ultimately led them to adopt the position that however many children a man fathers, he has no obligation to support them or their mothers.

The distortions of libertarian theory has also led libertarians to exclude fathers from any authority over their children. Having been forced to deny parental obligations, libertarians have had a problem with how to explain parental authority. They have adopted a muddled version of homesteading theory applied to children, arguing that children come into the world with a right to authority over them available for homesteading. Most theorists end up arguing that this right applies only to the mother who homesteads authority over the child through the act of giving birth. Fathers don't get a look in.

If you follow the logic of current libertarian theory, fathers have no responsibility for their kids and no parental authority. Any involvement in their children's lives only comes by contract with the mother (and only if desired by her).

The correct application of libertarian theory to parenting acknowledges parental obligations for both mothers and fathers as a consequence of responsibility for their actions. It also provides a justification for parental authority of both mothers and fathers and objective criteria for the limits of that authority. The main barrier to adopting a correct libertarian theory of parenting is the theoretical compromises that have been made to accommodate abortion.

Conclusion

Rather than developing a view on abortion that is consistent with libertarian principles, libertarian principles have been deformed until they are consistent with abortion. Accommodating one error has led to a propagation of errors that reach far beyond the issue of abortion itself.

Libertarianism can provide a coherent and beautiful moral philosophy of family relationships. At present, it does not. As long as libertarians start from the assumption that abortion must be justifiable, they will be unable to apply their own principles correctly to parental obligations or children's rights.

A Child's Potential for Rationality in Future Is an Argument for Inherent Rights

As discussed in a previous post, the theory of acquired rights asserts that a child qualifies as a rights-bearing person once he or she demonstrates possession of some characteristic or ability that confers rights-worthiness.

One version of this theory argues that when a child has the potential to be capable of reasoning at some point in the future, he qualifies for rights. Whatever this argument's merits, it does not support the theory of acquired rights. If rights are based on a child's future capacity to reason, then rights are inherent, not acquired.

If rights come from the potential to reason in future and not from the ability to reason now, then the current characteristics and abilities of the child are irrelevant. It does not matter what a child looks like or can do at present, since this argument for rights is based entirely on something that a child could potentially do in future. The logical implication of this argument is that a child has rights from the moment he comes into existence, since from that moment onwards there is the potential of a future in which the child is capable of reasoning.

Advocates of the theory of acquired rights refuse to accept this logical implication. They attempt to argue that an unborn child only has rights once it reaches certain developmental milestones that are related to a future ability to reason, but not before it has reached those milestones. For example, Jason Sorens argues that an unborn child only acquires rights at six and a half months because at that point the child has various features including "a recognizably human brain" which gives it the "potential for rationality".

However, any arbitrary milestone is completely irrelevant to the basic premise of the argument. As a reminder, the argument is that a child has rights despite his current inability to reason. Rather, he has them because he has the potential to reason in future. The logical implication is that rights are valid from the moment of conception, not from any point in brain development, since from the moment of conception a child is unable to reason but has the potential to reason in future. There is no philosophical basis for arguing that a child acquires rights because of any developmental milestone if that milestone isn't actually changing the child from a non-reasoner to a reasoner.

Advocates of this version of the theory of acquired rights are trying to argue that the potential for reasoning in future is a valid criterion for rights, but it should only be taken into account once some arbitrary developmental milestone has been reached by a child. The entire endeavour is nonsensical. It appears to be motivated reasoning with a particular conclusion in mind: to set aside a window of time in which a child does not have rights so that abortion is not considered a rights violation.

The Theory of Acquired Rights Is Incorrect

There are two competing theories of the origin of children's self-ownership rights: the theory of inherent rights and the theory of acquired rights. If self-ownership rights are inherent, then a child has rights from the moment he or she comes into existence. If self-ownership rights are acquired, then a child starts life without rights, and then acquires rights at some later point.

Over a series of posts, I will make the argument that only the theory of inherent rights is logically defensible, whereas the theory of acquired rights is logically indefensible. To begin, I will outline the main points of the theory of acquired rights.

The Theory Of Acquired Rights

The theory of acquired rights holds that a child does not have rights until he exhibits some characteristic or ability that only rights-bearers have. Here is the argument:

1. Not all humans have rights (for example, criminals don't).
2. Therefore, rights do not come from being human.
3. Rights come from possession of some characteristic or ability that confers rights-worthiness.
4. Therefore, a child qualifies as a rights-bearing person once he or she demonstrates possession of this characteristic or ability.
5. Existing rights-bearers (adults) do not have to respect the rights of the child until the child exhibits this characteristic or ability.

Implications

An important implication– according to this theory– is that children can be legitimately owned, at least for some period of time. If children start life without rights and only acquire rights at some later point, then there is nothing stopping them from being treated as property during the period when they have no rights. The theory of acquired rights supports the theory of parental ownership.

Another implication of this theory is that every adult may behave as a kind of rights-granting authority, in the sense that he may judge a child to be worthy or not yet worthy of rights, depending on whether the child meets the adult's qualifications.

Based On Assertion

The argument used to justify this theory is invalid. It simply does not follow that since some humans do not have rights, rights cannot be inherent and must be acquired. The existence of criminals does not refute the idea that rights are inherent for humans. On the contrary, criminals did start out with rights but then forfeited their rights because of a criminal act. To deny rights to the innocent is wrong, and the principle of the presumption of rights is valid. Therefore, the argument that rights are acquired and not inherent is merely asserted.

The Problem of a Qualification for Rights

The big problem for the theory of acquired rights is defining a rights-qualifying characteristic or ability that is logically defensible. There is no consensus on this. Some advocates simply choose to leave this part of the argument vague or unspecified (and thereby render the theory incoherent). For those who do specify the qualification, the arguments fall into some variant of these three:

1. When a child has the potential to be capable of reasoning at some point in the future, he qualifies for rights. (This argument does not support acquired rights, it supports inherent rights, as outlined here.)
2. When a child demonstrates the capacity to reason, he qualifies for rights. (This is logically indefensible, as outlined here.)
3. When a child acquires some other physiological feature that is not related to rationality, he qualifies for rights. (This is logically indefensible, as discussed here).

Each of these rights-qualifying criteria present insurmountable logical problems for the theory of acquired rights.

Any norm that would generate conflict is invalid

A norm of withholding respect for another individual's rights until he has demonstrated some specific trait would create conflict, obviating the very function of norms. The purpose of ethics is to prevent conflict over scarce resources. Since we live in a universe of scarcity, there is always the possibility of conflict over who can use each scarce resource. The role of ethics is to provide objective rules for handling scarcity without resorting to aggression. Any norm that would generate conflict (instead of avoiding conflict) is a priori invalid.

A norm that others do not deserve rights until they demonstrate some qualifying trait implies that aggression is permissible until proven otherwise. It would imply that strangers are fair game for aggression until they show good reason to respect their rights. This is the equivalent idea of guilty until proven innocent for rights. This is why it is a conflict generating norm and is invalid. The only workable norms are those that conform to the presumption of rights.

Any norm that is not universal is invalid

All valid ethical norms must be universal because the logic of argumentation implies a universality norm. A universal norm of rights must start with the presumption that rights are inherent (ie universal) and only identify specific, objective actions that— if undertaken— would forfeit rights.

Ethical claims that purport to apply to only one group and not another discriminate in a way that falls foul of logic. The theory of acquired rights has exactly this problem. The theory of acquired rights assumes that nobody starts life with rights. One group then asserts that they are the ones who have qualified as rights-bearers and that another group do not qualify for rights. The problem is that the discrimination is logically indefensible. This means that it does not meet the criteria of a valid moral rule.

The Presumption of Rights

The presumption of rights is a central principle within libertarian ethics. Here is a short summary of its meaning and implications.

The Question

Some starting presumption of a strangers' rights status is required in order to act in any way towards them. In the absence of other information, one must either start from the presumption that a stranger is a legitimate self owner (i.e. a rights-bearing person) or with the presumption that they are not a legitimate self owner. Your view of a stranger's rights status can change in light of evidence, but before you know anything else about them you must start with some presumption. Which is the ethically correct starting point? This is the question that the presumption of rights addresses.

The Purpose Of Norms

To answer this question, one needs a valid ethical rule or norm. Any ethical norm must conform to the rules of norm formation and justification. The purpose of ethical norms is to prevent conflict over scarce resources. Ethical norms are rules for handling scarcity without resorting to aggression. Norms must strictly adhere to the laws of logic and reasoned argument in order to provide an objective method for determining who legitimately controls each scarce resource, and thereby prevent conflict. Therefore, any norm that would not prevent conflict over scarce resources is an invalid norm.

A norm of starting with the presumption that a stranger is not a self owner would immediately lead to conflict. Under this norm, an individual X could legitimately assume the right to attack another individual Y on sight, unless given evidence as to why he should not. Conversely, Y could assume the right to attack X too. This would be a conflict-promoting norm.

The Presumption of Rights

Therefore, the only ethically valid starting presumption regarding a stranger's rights status is that the stranger is a legitimate self owner. Absent any evidence to the contrary, the starting presumption must be to respect the other individual's rights. This is called the presumption of rights.

The presumption of rights provides the philosophical justification for the related legal principle of presumption of innocence. It is also similar to the related principle of the presumption of an existing property owner's legitimacy (an existing property owner's title must be presumed legitimate in the absence of evidence to the contrary, otherwise conflict would be promoted).

The presumption of rights reflects the principle that property rights are rightfully assigned to the individual with the best objective link. Since each individual has the best objective link for ownership of his or her own body, all humans are rightfully self owners or persons.

Rights can be forfeited through acts of aggression. An individual can lose the right to control his body as a consequence of his actions (criminal or tort). He ceases to be a rights-bearing person when this happens. However, absent any evidence of aggression, the presumption must be to respect his self ownership.

Implications

This principle has a number of important logical implications:

1. The burden of proof is always on those who wish to deny an individual's rights. (Just as the burden is always on those who deny the legitimacy of an existing owner's property rights).
2. If there is any doubt as to an individual's rights, he or she must be presumed to be a legitimate self owner.
3. A norm of only respecting an individual's rights once he or she has demonstrated a specific capacity (such as rationality) would conflict with the established valid norm of the presumption of rights.
4. Denying rights to the innocent is always unjust.

I will discuss these implications in more detail a future post.

When do Parental Obligations Not Apply?

The Theory of Parental Responsibility holds that parents have enforceable positive obligations to their children because in creating a child the parents are responsible for placing the child in a state of peril.. Given that parental obligation only arises as a consequence of action, there are cases in which a child can come into existence without a parent incurring positive obligations.

Rape

A rape victim would not have parental obligations for any resultant child since the rape victim did not take action that resulted in a child being created. It was the rapist who acted, and thereby forced those consequences on her.

The rapist would have obligations to support the child, although a reasonable legal system would presumably deem him a criminally unfit parent and deny him access, so his obligations would have to be in the form of monetary payments to whoever was the caregiver of the child for the child's support, alongside restitution payments to the victim.

As a side note, the fact that there are no positive obligations in cases of rape victims means that parental obligations do not provide an argument against abortion in those cases. In cases of consensual sex, parental positive obligations do refute the right to abortion, but not in cases of rape. Whether or not abortion is justified in those cases depends on other arguments.

Gamete Theft

In cases of gamete theft, the biological parents would not have parental obligations. One qualification is that gamete owners have an obligation to be responsible owners, since gametes can have such enormous consequences on the lives of innocent others. Rivka Weinberg has argued that gamete owners have an obligation to take the same level of care with their gametes as one must do with a hazardous material.

Presuming that the biological parent did exercise due care, he or she would not incur parental obligations. For example, if a student donated sperm to a respectable university research team for the expressed purpose of aiding a scientific study of sperm motility and his sperm were stolen from the university and used instead to create a baby, he would not have parental obligations. He could not have reasonably expected to create a baby by his action.

Paternity Fraud

A man fraudulently told that he is the father of a child (when in fact he is not) does not have enforceable obligations towards a child, since he is not the one who created the child's peril. Believing a fraudulent obligation claim does not convert the fraudulent claim into a real obligation. The child's legitimate claim is against the natural father. Whether or not the duped man chooses to become an adoptive father is a matter of personal choice for him, but not obligation.

Endangered Life Of The Mother During Pregnancy

If the life of a pregnant mother is endangered by the unborn child, the mother would have a presumptive right of self-defence against the child to preserve her own life. Her self-defence right would nullify her parental obligations, assuming that the risks to her life were not the result of reckless negligence on her part.

How Do Libertarians Justify Parental Authority?

Parental authority presents a significant problem for libertarian philosophy. The principle of self ownership is incompatible with paternalism. Self ownership means that people have the right to control their own bodies and actions, even if those actions include harming themselves. Paternalism means taking authority over someone to restrict their freedom in their own interests.

If a drunkard chooses to drink himself into an early death, it is his right to do so, however unwise it may be. You may legitimately offer him non-coercive advice or assistance. However, as long as the drunkard is not aggressing against others (not stealing, trespassing etc), then (according to the principle of self ownership) it is not legitimate to restrict his freedom by forcefully preventing him from drinking.

What about parental paternalism? Parents have the authority to make decisions on their child's behalf. This includes restricting children's freedom in various ways, in order to prevent them from coming to harm. It can also include decisions or restrictions that go against the expressed wishes of the child. This is paternalism. Is the philosophy of self ownership therefore incompatible with parental authority?

Libertarians have come up with conflicting arguments in response to this problem:

1. Children are not self owners
2. Parental authority is unjustifiable
3. Parental authority is a homesteaded property right over the child
4. Parental authority derives from parental obligation

Argument 1: Children Are Not Self Owners

For those who advocate the theory of parental ownership, there is no problem justifying parental authority. If parents own their children, then they have complete authority over them. According to this theory, the relationship is the same as that of a master to a slave. If a parent is paternalistic, this is merely a choice over how to use his property. Therefore no contradiction between self ownership and parental authority arises since children are not self owners.

Children cannot be legitimately owned, as I will argue in a separate future article. But even if we accept that children can be owned for the sake of argument, this theory creates more problems. Firstly, there is no justifiable limit to parental authority if children are owned. Locke was the first to argue that parental authority must have limits. Since the Enlightenment it has become generally accepted that that parents do not have completely unlimited authority to do whatever they want to their children. However, the theory of parental ownership provides no philosophical basis for limiting parental authority in any way.

Another problem created by this theory is that there is no basis for explaining how (and why) a child could ever cease to be owned and attain self ownership.

Argument 2: Parental Authority Is Unjustifiable

The second view accepts both the argument that children are self owners and the conclusion that parental authority cannot be justified. In this view, parents have no authority to act paternalistically towards children. As a corollary of this view, parents should treat children in the same way that they would treat a rights-bearing adult. This view was represented by the child liberation movement of the 1970s.

This theory faces practical challenges, given the complete helplessness of children and their inability to express preferences on many decisions that affect them, especially in the early years. Some choices will be made paternalistically by default, regardless of whether the parents intend to wield authority.

It is important to note that the argument for treating children the same as adults logically leads to justifying such evils as pedophilia, since (in this view) there can be no basis for paternalistic protection of children against the sexual advances of adults. If this implication does not immediately disqualify this argument for you, I don't know what to tell you. This position was explicitly advocated in the 1970s by intellectuals such as Sartre, Derrida, Foucault, and de Beauvoir and by some of the child liberationist authors such as Richard Farson and Germaine Greer.

Argument 3: Parental Authority Is a Homesteaded Property Right Over the Child

This argument is as follows:

1. Children are self owners.
2. Attached to each child is a property right to authority over the child, albeit not an ownership right.
3. Whoever holds this property right can legitimately wield the authority to be paternalistic towards the child and can exclude others from doing so.
4. This right can be homesteaded. Most commonly it is homesteaded by a natural parent.

There are a number of problems with this theory. Most importantly, this right to authority over the child seems to be merely asserted. What is the basis of this argument that children come into the world with a right to authority over them available for homesteading? Where does this kind of property right come from?

Another problem with this theory is that it doesn't seem to involve fathers in any role of parental authority or responsibility. Since the argument is about homesteading, many authors have argued that the mother is the one who naturally homesteads the parental authority role. The act of giving birth to a child is taken as a demonstration of homesteading the authority rights over it. Fathers don't seem to get a look in according to this theory. Murray Rothbard and Roderick Long both explicitly argue that this first-homesteading right goes to mothers only.

A third problem is that there is some equivocation about what exactly this property right amounts to. Sometimes the idea seems to be that parents homestead a limited right to certain kinds of authority, but at other times the idea seems to be that parents do in fact simply own the child, albeit on a temporary basis. Rothbard seems to slip between definitions of this property right when discussing it.

Argument 4: Parental Authority Derives From Parental Obligation

This argument comes from the Theory of Parental Responsibility. It is as follows:

1. Children are self owners.
2. Parents are responsible for the peril that children face because parents put them in a state of peril as a consequence of creating them.
3. Therefore parents have an obligation to remove their children from peril. This means raising them safely to the independence of adulthood.
4. In order to remove a child from peril, a parent must assume authority to act paternalistically towards the child.
5. Therefore the parent can legitimately assume authority over the child insofar as the parent is fulfilling his or her positive obligation towards the child.

There are a number of logical implications of this way of viewing parental authority that differ from the alternative arguments above:

1. Parental authority is strictly limited and there are objective criteria for determining whether it is being misused (based on the positive obligation of removing peril).
2. Protecting children from threats such as pedophiles is not only justified, it is a positive obligation of parents.
3. Parental authority is not a homesteaded property right in the child, rather it is a logical requirement of fulfilling the positive obligations that parents have.
4. Parental authority goes to both mother and father because both are jointly and severally liable for parental obligations as a consequence of creating the child.
5. As Locke pointed out, parental authority is derivative of parental obligation, not the other way around. Far from being a homesteaded right, the authority that parents have is a responsibility arising from (and temporally subsequent to) their acquiring obligations towards the child. This also entails that all use of parental authority must be justifiable in terms of the fulfilment of parental obligations, otherwise it is a misuse of authority.

Which Is The Correct Libertarian View of Parental Authority?

I argue that Argument 4 (parental authority derives from parental obligations) is the correct libertarian view on parental authority. However, most libertarians who have written on this subject have put forward some variant of argument 3 (parental authority is a homesteaded property right over the child). Rothbard and Block have both argued this. This is somewhat surprising since both these writers are advocates of the Theory of Parenting As Charity and the logical implication of that theory would seem to be that parental authority cannot be justified, but this is not the argument that Rothbard or Block make.

As I've argued elsewhere, the Theory of Parental Responsibility is the only theory of parent-child relationship that is compatible with other libertarian principles. The argument that parental authority derives from parental obligations is a logical consequence of this theory. This theory not only provides a philosophical grounding for parental authority, it also provides a clear grounding for limits on that authority.

Do adoptive parents have the same positive obligations as natural parents?

The Theory of Parental Responsibility argues that parents have enforceable positive obligations to their children based on the legal principle of creation of peril. In creating a child, parents change the state of the world from one in which there was not a specific rights-bearing person in peril, to one in which a specific rights-bearing person is in peril.

In contrast, adoptive parents are not the creators of the child. Do adoptive parents still have positive obligations through creation of peril? Or do they have positive obligations through some other means? Or do they not have positive obligations?

Contract

Peril is not the only way to acquire obligation. Most positive obligations are acquired by contract. Since adoption usually involves contracts, one might argue that adoptive parents can acquire positive obligations to their children via contractual obligations (although the contract would be between the natural and adoptive parents). This is an additional mechanism for acquiring positive obligations that does not apply to natural parents. But this mechanism does not always apply. If anything it is an additional possible source of obligation in some cases. Do adoptive parents acquire positive obligations through some mechanism that applies in all cases?

Peril

I believe adoptive parents do acquire positive obligations through creation of peril. The basis is:

1. A child is owed obligations from his natural parents through creation of peril.
2. An adoptive parent is relieving the natural parent of that obligation and assuming it for themselves.
3. In doing so, the adoptive parent removes the child from the protection of the natural parents (i.e. takes the child away from the care that they are owed by their natural parents).
4. The adoptive parent has thereby removed the obligated caregiver from the child's life, which is the creation of a state of peril, and this gives the adoptive parent a positive obligation to act as the new caregiver.

It may be objected that adoption is probably taking place because the natural parents either cannot or will not meet their obligations. Even if we accept that this is the case and that the natural parents have not been fulfilling all their obligations, the adoptive parents are still effectively cutting off any chance that the child has of receiving care from the natural parent. This is the creation of peril, and it is mitigated by the adoptive parent meeting the obligations instead.

Abandonment, Custody, and Creation of Peril

What about the case of abandoned babies that are adopted? In this case, the adoptive parent has not deprived the child of the natural parent, since the natural parent has abandoned them. The adoptive parent is also not bound by contract, since there is nobody to contract with. Does this mean that the adoptive parent does not have enforceable positive obligations?

I am not sure. A tentative answer is that the process of taking custody is a kind of creation of peril. When an adoptive parent takes custody over an abandoned child, there are various logical consequences:

1. The adoptive parents are excluding anyone else from parenting the child
2. In doing so, they are effectively depriving the child of the possibility of parental care from anyone but themselves.
3. Since this is essentially cutting the child off from care from others, one might argue that this creates positive obligations to provide the care.

I'm still evaluating whether this argument is correct. Any feedback would be welcome.

Practical Barriers To Enforcement of Parental Obligations

Stephan Kinsella argues that even though parents do have rightful positive obligations, these obligations could be largely unenforceable for practical reasons:

a parent who needs to be forced to care for their kid will not be a good parent, so probably best to let a third party adopt the kid. It could be the case that the positive obligations we think parents have assumed in the case of kids, are simply mostly unenforceable, except for some narrow cases like forced heirship law or legal obligations of financial support, and so on.

Are parental obligations practically unenforceable? And if they are practically unenforceable, what do we infer about any failure to meet such obligations?

Are Parental Obligations Practically Unenforceable?

Some positive parental obligations do present enormous practical challenges to enforce. For example, there are sociopathic or incompetent people who are so dangerous to children that presumably they could never be forced to provide even the bare minimum survival care required for any child.

There are workarounds for enforcement even in these cases. A dangerous parent could be rightfully forced both to give up custody of their child to a responsible party and/or to provide financial support, as Kinsella suggests.

The ultimate consequence of enforceability is that adults should be able to sue their parents for a failure to meet parental obligations to them back during their childhood. There are still practical barriers to enforcement in these cases. The passage of time would work against the plaintiff. Also, the fact that the plaintiff is a functioning adult is prima-facie evidence that their parents did deliver them to adulthood safely, so this would also work against the plaintiff in many cases.

However, if such barriers were overcome, a parent could be held liable for damages. For example, if it could be demonstrated that a child suffered sexual abuse as a result of a parent leaving them with in the care of the abuser without exercising reasonable diligence to check the safety of the person they were entrusting the child to, that parent should be considered liable of a failure to protect the child (and protection is a parental obligation).

What Do Practical Barriers Imply About Justice?

It is incontestable that- at least in some cases- positive parental obligations may be practically impossible to enforce. What are we to make of this? There are three competing inferences that one might draw from this:

1. Since the practical barriers to enforcement are insurmountable in some cases, it cannot be defined as an injustice if parents fail to meet their positive obligations.
2. It may be an injustice if parents fail to meet positive obligations, but since we can't practically do anything about it, it is meaningless to even talk about it.
3. Justice matters, even if there is no practical way to redress an injustice at present.

For me, the correct inference to draw is 3: justice still matters even if we sometimes can't enforce it for practical reasons.

Rothbard once made the point that is valid to have a goal like the eradication of murder even if you do not ever expect that goal to be achieved. Similarly, it is valid to have the goal of eradicating the neglect and abuse of children, even if you never expect this to be achieved for practical reasons.

There are insurmountable practical barriers to achieving a 100% enforcement on the prohibition of murder, but the injustice of every murder still matters. Similarly, there are insurmountable practical barriers to enforcing every parent to fulfil all their positive obligations to their children, but the injustice of child neglect and abuse still matters.