children are young and lack judgment capacity, a parent deciding for them does not look suspect.
However, as children get older and grow in their ability to choose for themselves, their autonomy
is directly infringed upon if parents assert a fundamental right as a parent to decide for their child.
A developmental approach, divorced from the sticky complications with parental rights theories,
would solve this problem. Parents can be stewards over the rights of their children until the children
have reached a point in their mental development that they can act to protect their own interests.
However, parents should not have a recognized fundamental right to decision-making where their
child is able.
To do away with the remnants of property theory, we need to bring about a shift in our
view of parenthood as a fundamental right. The theory of parenthood as a fundamental right is
ultimately rooted in conceptions of parenthood as ownership over children, which is fundamentally
inconsistent with the United States’ developing recognition of children as individuals with
individual rights. Parenthood should instead be viewed as a duty to act as a responsible steward
over the rights of a child until such time as the child can act as a steward over herself.
1. Parents as Trustees of Their Children’s Rights
There are myriad examples of parents acting in violation of their children’s rights because
they were permitted to do so. The U.S. Supreme Court recognized this in Parham v. J.R., holding
that “some parents ‘may at times be acting against the interests of their children.’”139 Parents have
“extraordinary power over their children’s bodies”140 and often exercise that power regardless of
the wishes of their children and in circumstances no autonomous adult would consent to.141 Parents
have used that power to westernize the eyes of children adopted from Asia, to subject their teenage
children to breast enlargements or liposuction, to sterilize their children with disabilities, and to
extract bone marrow from a nine year old girl who had been sexually abused by her brother for
use by that brother.142 Unfortunately for children, their voices are not represented in these medical
procedures. The decision of whether to perform the procedure is based on a cost-benefit analysis,
weighing the risks of the procedure against its potential outcomes.143 These are just a few examples
of the invasive harm to children’s individual rights that occur when parents are given discretion to
act in the best interest of their children. In other words, parents often do not act in the best interest
of their child. The broad discretion afforded to parents to act like this is rooted in an archaic
hierarchical property view of the family. Parents’ rights give parents a degree of control over their
children that “would be impermissible in any other relationship.”144 While the overall view has
been replaced with individual rights of children, the lingering roots still need to be excavated.
The dilemma of reconciling children’s rights as they develop with parental rights can be
solved by adopting a view of parents as stewards of their children’s rights. Because viewing
children as property is fundamentally incompatible with both American values and a
developmental conception of individual rights for children, it should be replaced with a view of
139 Parham v. J.R., 442 U.S. 584, 602 (1979) (quoting Bartley v. Kremens, 402 F.Supp., 1039, 1047–48 (E.D. Pa.
140 Alicia Oullette, Shaping Parental Authority Over Children’s Bodies, 85 IND. L.J. 955, 956 (2010).
141 Parham, 442 U.S. at 602 (discussing whether or not children can be voluntarily committed to a mental health
hospital by their parents).
142 Oullette, supra note 140, at 956.