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[This article is excerpted from chapter 14 of The Ethics of Liberty. Listen to this article in MP3, read by Jeff Riggenbach. The entire book is being prepared for podcast and download.] We have now established each man's property right in his own person and in the virgin land that he finds and transforms by his labor, and we have shown that from these two principles we can deduce the entire structure of property rights in all types of goods. These include the goods which he acquires in exchange or as a result of a voluntary gift or bequest.

There remains, however, the difficult case of children. The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner. But this poses a difficult problem: for when, or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?...

Even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother's body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child's rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of "rights" is a "negative" one, demarcating the areas of a person's action that no man may properly interfere with. No man can therefore have a "right" to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a "right" to a "living wage," for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced. As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former's rights; the only legal obligation one man has to another is to respect the other man's rights.

Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die. The law, therefore, may not properly compel the parent to feed a child or to keep it alive. (Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.) This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g., by not feeding it)? The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such "neglect" down to a minimum.)

Our theory also enables us to examine the question of Dr. Kenneth Edelin, of Boston City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die (at the wish, of course, of the mother) after performing an abortion. If parents have the legal right to allow a baby to die, then a fortiori they have the same right for extra-uterine fetuses. Similarly, in a future world where babies may be born in extra-uterine devices ("test tubes"), again the parents would have the legal right to "pull the plug" on the fetuses or, rather, to refuse to pay to continue the plug in place.

Let us examine the implications of the doctrine that parents should have a legally enforceable obligation to keep their children alive. The argument for this obligation contains two components: that the parents created the child by a freely chosen, purposive act; and that the child is temporarily helpless and not a self-owner. If we consider first the argument from helplessness, then first, we may make the general point that it is a philosophical fallacy to maintain that A's needs properly impose coercive obligations on B to satisfy these needs. For one thing, B's rights are then violated. Secondly, if a helpless child may be said to impose legal obligations on someone else, why specifically on its parents, and not on other people? What do the parents have to do with it? The answer, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation.

Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive who was the result of an act of rape, since this was not a freely undertaken act. It also rules out any such obligation by a stepparent, foster parent, or guardian, who didn't participate at all in creating the child.

Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult? As Evers states:

The parents are still the creators of the child, why aren't they obliged to support the child forever? It is true that the child is no longer helpless; but helplessness (as pointed out above) is not in and of itself a cause of binding obligation. If the condition of being the creator of another is the source of the obligation, and this condition persists, why doesn't the obligation?

And what of the case, in some future decade, when a scientist becomes able to create human life in the laboratory? The scientist is then the "creator." Must he also have a legal obligation to keep the child alive? And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources — his time, energy, money, capital equipment — should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion?

This question of resources is also directly relevant to the case of natural parents. As Evers points out:

[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an …obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child?

And if not, we might add, at what point does the parents' legal obligation properly cease? And by what criterion? Evers goes on:

One might want to argue that parents owe only the average minimal care (heat, shelter, nutrition) necessary to keep a child alive. But, if one is going to take the obligation position, it seems illogical — in view of the wide variety of human qualities and characteristics — to tie obligation to the Procrustean bed of the human average.

A common argument holds that the voluntary act of the parents has created a "contract" by which the parents are obligated to maintain the child. But

this would also entail the alleged "contract" with the fetus that would prohibit abortion, and this falls into all the difficulties with the contract theory as analyzed above.

Finally as Evers points out, suppose that we consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn't this be a "monstrous involuntary servitude that is being foisted upon a rescuer?" And if for the rescuer, why not also for the natural parent?

The mother, then, becomes at the birth of her child its "trustee-owner," legally obliged only not to aggress against the child's person, since the child possesses the potential for self-ownership. Apart from that, so long as the child lives at home, it must necessarily come under the jurisdiction of its parents, since it is living on property owned by those parents. Certainly the parents have the right to set down rules for the use of their home and property for all persons (whether children or not) living in that home.

But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely any particular age (21,18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or "runs away" from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child's ultimate expression of his right of self-ownership, regardless of age.

Now if a parent may own his child (within the framework of non-aggression and runaway freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monstrous and inhuman. But closer thought will reveal the superior humanism of such a market. For we must realize that there is a market for children now, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge. This means that we now indeed have a child-market, but that the government enforces a maximum price control of zero, and restricts the market to a few privileged and therefore monopolistic agencies. The result has been a typical market where the price of the commodity is held by government far below the free-market price: an enormous "shortage" of the good. The demand for babies and children is usually far greater than the supply, and hence we see daily tragedies of adults denied the joys of adopting children by prying and tyrannical adoption agencies. In fact, we find a large unsatisfied demand by adults and couples for children, along with a large number of surplus and unwanted babies neglected or maltreated by their parents. Allowing a free market in children would eliminate this imbalance, and would allow for an allocation of babies and children away from parents who dislike or do not care for their children, and toward foster parents who deeply desire such children. Everyone involved: the natural parents, the children, and the foster parents purchasing the children, would be better off in this sort of society.

In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.

The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State.

First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned:

that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children — fortunately, this is now being remedied; and despite the publicity being given to the "battered child syndrome," it has been estimated that only 5 percent of "child abuse" cases involve physical aggression by the parents.

On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of "child neglect," clearly violate parental rights. These are: failure to provide children with the "proper" food, shelter, medical care, or education; and failure to provide children with a "fit environment." It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is "proper" and "fit." Equally vague are other, corollary, standards allowing the State to seize children whose "optimal development" is not being promoted by the parents, or where the "best interests" of the child (again, all defined by the State) are promoted thereby.

A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950 case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was "incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism." In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to "the conventions and the mores of the community in which they are to live." In 1954, in the case of Hunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral.

Not only religion, but also personal morality has been dictated by the government. In 1962, five children were seized from their mother by a court on the ground that the mother "frequently entertained male companions in the apartment." In other cases, courts have held parents to have "neglected" the child, and thereupon seized the child, because parental quarrelling or a child's sense of insecurity allegedly endangered the child's best interests.

In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned of the massive coercive potential of the "best interest" criterion:

A court should not take the custody of a child from their parents solely on the ground that the state or its agencies can find a better home for them. If "the better home" test were the only test, public welfare officials could take children from half the parents in the state whose homes are considered to be the less desirable and place them in the homes of the other half of the population considered to have the more desirable homes. Extending this principle further, we would find that the family believed to have the best home would have the choice of any of our children.

The rights of children, even more than those of parents, have been systematically invaded by the state. Compulsory school attendance laws, endemic in the United States since the turn of this century, force children either into public schools or into private schools officially approved by the state. Supposedly "humanitarian" child labor laws have systematically forcibly prevented children from entering the labor force, thereby privileging their adult competitors. Forcibly prevented from working and earning a living, and forced into schools which they often dislike or are not suited for, children often become "truants," a charge used by the state to corral them into penal institutions in the name of "reform" schools, where children are in effect imprisoned for actions or non-actions that would never be considered "crimes" if committed by adults.

It has, indeed, been estimated that from one-quarter to one-half of "juvenile delinquents" currently incarcerated by the state did not commit acts that would be considered crimes if committed by adults (i.e., aggression against person and property). The "crimes" of these children were in exercising their freedom in ways disliked by the minions of the state: truancy "incorrigibility," running away. Between the sexes, it is particularly girl children who are jailed in this way for "immoral" rather than truly criminal actions. The percentage of girls jailed for immorality ("waywardness," sexual relations) rather than for genuine crimes ranges from 50 to over 80 percent.

Since the U.S. Supreme Court's decision in the 1967 case of In re Gault, juvenile defendants, at least in theory, have been accorded the elementary procedural rights of adults (the right to notice of specific charges, the right to counsel, the right to cross-examine witnesses), but these have only been granted in cases where they have actually been accused of being criminals. As Beatrice Levidow writes, the Gault and similar decisions:

do not apply to any adjudicatory hearings except those in which the offense charged to the juvenile would be violation of the criminal laws if committed by an adult. Therefore, the safeguards of Kent, Gault, and Winship do not protect the due process rights of juveniles who are dependent, neglected, in need of supervision, truant, run away, or accused of other offenses of which only juveniles can be guilty such as smoking, drinking, staying out late, etc.

As a result, juveniles are habitually deprived of such elemental procedural rights accorded to adult defendants as the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissability of hearsay evidence. As Roscoe Pound has written, "the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts." Once in a while, a dissenting judge has levelled a trenchant critique of this system. Thus, Judge Michael Musmanno stated in a 1954 Pennsylvania case:

Certain constitutional and legal guarantees, such as immunity against self-incrimination, prohibition of hearsay interdiction of ex parte and secret reports, all so jealously upheld in decisions from Alabama to Wyoming, are to be jettisoned in Pennsylvania when the person at the bar of justice is a tender-aged boy or girl.

Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of "immorality," "habitual truancy," "habitual disobedience," "incorrigibility," "ungovernability," "moral depravity," "in danger of becoming morally depraved," "immoral conduct," and even associating with persons of "immoral character."

Moreover, the tyranny of indeterminate sentencing (see our chapter above on punishment) has been wielded against juveniles, with juveniles often receiving a longer sentence than an adult would have suffered for the same offense. Indeed the rule in contemporary juvenile justice has been to impose a sentence that may leave a juvenile in jail until he reaches the age of majority. Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories — genuine criminals who are called "delinquents," and other, "immoral" children who are called "persons in need of supervision" or PINS. After which, the PINS "offenders" receive longer sentences than the actual juvenile criminals! Thus, in a recent study, Paul Lerman writes:

The range of institutional stay was two to twenty-eight months for delinquents and four to forty-eight months for PINS boys; the median was nine months for delinquents and thirteen months for PINS; and the average length of stay was 10.7 months for delinquents and 16.3 months for PINS…. The results of length of stay do not include the detention period; the stage of correctional processing prior to placement in an institution. Analyses of recent detention figures for all five boroughs of New York City revealed the following patterns: (1) PINS boys and girls are more likely to be detained than delinquents (54 to 31 percent); and (2) once PINS youth are detained they are twice as likely to be detained for more than 30 days than are regular delinquents (50 to 25 percent).

Again, it is mainly female juveniles that are punished for "immoral" offenses. A recent study of Hawaii, for example, found that girls charged merely with running away normally spend two weeks in pretrial detention, whereas boys charged with actual crimes are held for only a few days; and that nearly 70 percent of the imprisoned girls in a state training school were incarcerated for immorality offenses, whereas the same was true of only 13 percent for the imprisoned boys.

The current judicial view, which regards the child as having virtually no rights, was trenchantly analyzed by Supreme Court Justice Abe Fortas in his decision in the Gault case:

The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive. These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the State was proceeding as parens patriae (the State as parent). The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historical credentials are of dubious relevance. …The right of the State, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." …If his parents default in effectively performing their custodial functions — that is if the child is "delinquent" — the state may interfere. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the State when it seeks to deprive a person of his liberty.

It may be added that calling an action "civil" or "custody" does not make incarceration any more pleasant or any less incarceration for the victim of the "treatment" or the "rehabilitation." Criminologist Frederick Howlett has trenchantly criticized the juvenile court system, and placed it in a wider libertarian context. He writes of

the denial of certain basic rights of individuals — the right to associate with those of their choice and to engage voluntarily in acts that harm no one but themselves. The drunk who clogs our courts should have the right to get drunk; the …prostitute and her client should not have to answer to the law for an act that is their personal decision. The misbehaving child likewise has a fundamental right to be a child, and if he has committed no act that would be considered criminal were he an adult, why seek recourse through the courts …? Before rushing to treat or "help" a person outside the justice system, should not the community first consider the alternative of doing nothing? Should it not recognize the child's right, as a person, to nontreatment and noninterference by an outside authority?

A particularly eloquent judicial defense of the rights of children occurred in an 1870 Illinois decision, years earlier than the modern assertion of state despotism in the juvenile court system, beginning with the turn of the century Progressive period. In his decision in People ex rel. O'Connell v. Turner, Justice Thornton declared: