claims for protection against the state. The U.S. Supreme Court in Planned Parenthood v. Danforth
shed light on their approach to how children’s rights come about, holding rather frankly that
“Constitutional rights do not mature and come into being magically only when one attains state-defined age of majority. Minors as well as adults are protected by the Constitution and possess
constitutional rights.”81 The protection of those rights is where the main controversy lies: questions
remain as to when children should be allowed to make decisions for themselves, who is the best
steward over those rights in the meantime, and how to balance the rights of children with the rights
The two prominent current theories of children’s rights are autonomy, or choice, rights and
need-based rights. Need-based rights center around children’s protection from third parties—
protection against businesses, government, child pornographers, and predators.82 Choice theory
centers on the idea that children’s rights are curtailed by their limited decision-making
capabilities.83 The Court has approached children’s rights consistently with choice theory, as it
expressed “concern over the inability of children to make mature choices” in Bellotti v. Baird.84
Judges and scholars alike have acknowledged that autonomous decision-making capabilities
develop over time.85 Choice theory posits decision-making capabilities as a prerequisite to
exercising autonomy.86 Children’s decision-making allowance should be parallel to their
developing decision-making capacity. Before they have sufficiently developed, the responsibility
for making decisions for children rests upon the parents, because the law “presum[es] that parents
possess what a child lacks in maturity, experience, and capacity for judgment required for making
life’s difficult decisions.”87
One oft-accepted notion is that children presumably have a different set of characteristics
from adults that prevents them from functioning as fully autonomous decision-makers.88 In the
interim between birth and autonomous adulthood, parents are given authority over their children,
based on the premise that parents are the “first best” caregivers for their children.89 However, with
the development of the child welfare system and juvenile courts, emerged the wide acceptance of
the idea that the state has a responsibility for providing for the well being of children. While this
does not necessarily need to restrict the rights of parents, measures designed to benefit children
can, on occasion, preempt parental authority.90
Courts and others have recognized that some rights belong to children intrinsically, and are
not limited by development. Scholars have recognized that children need privacy to “develop their
81 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976).
82 Shmulei & Blecher-Prigat, supra note 2, at 771.
83 Anne C. Daily, Children’s Constitutional Rights, 95 MINN. L. REV. 2099, 2106 (2011) (“children lack certain
rights accorded to adults because they lack the capacity for autonomous decision making necessary for the exercise
of those very rights.”).
84 Bellotti v. Baird, 443 U.S. 622, 636 (1979).
85 Id. at 637–38 (“the guiding role of parents,” is the “affirmative process of teaching, guiding, and inspiring by precept
and example is essential to the growth of young people into mature, socially responsible citizens.”); Prince v.
Massachusetts, 321 U.S. 158, 165 (1944) (“It is the interest of youth itself, and of the whole community, that children
be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men
and citizens.”); Daily, supra note 83, at 2115.
86 Daily, supra note 83, at 2100.
87 Parham v. J.R., 442 U.S. 584, 602 (1979).