First Comes Marriage
Jennifer Roback Morse on Why No One Has a Right to a Child
In Vista, California, an infertility clinic with a policy of artificially inseminating only married women is being sued by a lesbian woman for sexual orientation discrimination. In Indiana, a law was introduced and quickly withdrawn that would have confined the use of artificial reproductive technologies to married couples.
The superficial appeal of the lesbian’s case is that having a baby is a right, from which no one can be excluded, no matter what their marital status. The ill-fated Indiana law was shot down because its opponents appealed to the same intuitive sense, widely felt by Americans, that people have a right to have a baby.
Whose Rights?
There is some legal precedent for believing that procreation is a fundamental right. The Supreme Court has held (in Skinner v. Oklahoma) that sterilization cannot be used as a criminal penalty because the right to have children is a fundamental right, but this right surely cannot mean that anyone who wants a baby is entitled to a baby, and that someone is required to give them one.
Let me be blunt: There is no right to a child, because a child is not an object to which other people have rights. If that were true, then parents would be owners of their children, rather than their stewards or guardians. The well being of the child could be, and would be, sacrificed to the “rights” of the parents. If we are born as objects to which other people have rights, when do we become persons with rights of our own, and why does the woman’s “right” to have a child trump the child’s right to have a father?
The family courts do not typically use the language of rights, even for children already born to specific and identifiable individuals. They usually do not say, “These parents have a right to this child.” Even when they use the term “parental rights,” these are not like property rights to cars and refrigerators. Children are not chattels. A person cannot dispose of his children, or write a contract to give up these rights. If anyone has a right to anything, it is the child.
We must distinguish between “the right to have a child” in the sense of possession and the “right to have a child” in the sense of procreation. There is one coherent way to imagine a right to procreate. Two people of the opposite sex can come together to conceive a child, without permission from the state or anyone else. People do it all the time.
To put it another way: Every individual is sterile. No one can have a baby by himself. Each human infant has two parents, one male and one female. Therefore, any right to have a child should be held by a couple, not by an individual who wishes to be a parent.
A Couple’s Right
This right of procreation a married couple holds is, quite literally, a natural right. No one has to help the couple produce the child: They can do that all by themselves. In fact, one of the great problems every society has to solve is discouraging reproduction in certain circumstances, precisely because producing babies is all too easy and natural to do.
Jennifer Roback Morse is the author of the recently published Smart Sex: Finding Life-Long Love in a Hook-Up World and Love & Economics, both published by Spence Publishing. A research fellow at the Acton Institute, she is also founder of Your Coach for the Culture Wars, a business helping organizations take a stand in the culture wars. She can be contacted through her website: www.jennifer-roback-morse.com.
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