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 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.

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

A common way to acquire positive obligations is by contract. Since adoption usually involves contracts, one might argue that adoptive parents can acquire positive obligations via contractual obligations. However, any contract would be between the biological parents and the adopters, since children cannot contract. Such a contract would make the adopters agents of the biological parents, contracted to fulfil various duties on their behalf. It would not create a claim by the children against the adopters (or negate the children's claim against their biological parents). Is there any way that adoptive parents acquire positive obligations to the children themselves, such that the children have a legitimate claim against them?

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.