claim to authority in their own household “…is basic in the structure of our society.”102 In Pollock
v. Pollock, a privacy case concerning video-recording a child, the Sixth Circuit Court of Appeals
also displayed a commitment to the inherent rights of parents, holding that a child’s ability to
consent does not preclude a parent from being allowed to consent on the child’s behalf.103 They
upheld the parents’ actions, so long as they were “objectively reasonable.”104
These cases demonstrate tensions in the law between the rights of children and the rights
of parents. The right to parenting has long been recognized by the Court.105 The U.S. Supreme
Court recently stated that the “the interest of parents in the care, custody, and control of their
children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”106
The right to parent is not limited to responding to a child’s need for a caregiver; the right to parent
one’s children is a constitutional right in and of itself.107 However, this clashes with the theory of
children’s right to decide for themselves as they become autonomous beings.
These historical tensions between parents’ and children’s rights have deep roots in the
theory that children are the property of their parents. It is not surprising that the theory is pervasive,
given how long it has been around: Aristotle, for one, purported that a child was “a parent’s
possession because it came physically from the parent, like a tooth or a lock of hair.”108 This theory
of children as property has largely been elbowed out by the new commitment to acting in a child’s
best interest.109 However, while it may have lost its prominence, the underlying assumptions of
property theory persist in contemporary discussions of parental rights. The law’s contemporary
understanding of and its approaches to parental rights are “deeply analogous” to those of property
rights.110 Some scholars argue that any recognition at all of a parent’s rights is indicative of a
paradigmatic view of children as property, and therefore should be fundamentally invalid.111 To
posit the existence of parental rights due solely to being a parent requires recognition that, because
of parentage status, one individual has a right to control another.
One scholar argues that parental rights should be done away with and replaced by parental
privilege, which means that parents would not be entitled to direct a child’s life as they want, but
would have a privilege of carrying out normal child-rearing behaviors, necessarily including some
emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when
the patient is immature.”).
102 Id. at 410 (citing Ginsberg v. New York, 390 U.S. 629, 639 (1968)).
103 Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998).
104 Id.
105 Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925) (holding that a right to parenting includes the ability to
make education decisions for a child: “The child is not the mere creature of the state; those who nurture him and direct
his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”); see
also Santosky v. Kramer, 455 U.S. 745, 759 (1982) (“[A] natural parent's ‘desire for and right to “the companionship,
care, custody, and management of his or her children” is an interest far more precious than any property right.”).
106 Troxel v. Granville, 530 U.S. 57, 65 (2000).
107 Shmulei & Blecher-Prigat, supra note 2, at 761.
108 Woodhouse, supra note 5, at 1043.
109 Id. at 1038–39 (“[T]he concept of parental obligations as an outgrowth of divinely conferred paternal ownership
and control of children had given way to that of parental trusteeship in the child’s ‘best interests.’”).
111 James G. Dwyer, Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights, 82 CALIF.
L. REV. 1371, 1373 (1994) (“it becomes apparent that the claim that parents should have child-rearing rights —rather
than simply being permitted to perform parental duties and to make certain decisions on a child’s behalf in accordance
with the child’s rights—is inconsistent with principles deeply embedded in our law and morality.”).
