An Excerpt from "A Constitutional Birthright"

In his article, “A Constitutional Birthright: The State, Parentage, and the Rights of Newborn Persons,” published in the U.C.L.A. Law Review, Professor James Dwyer challenges the strong legal presumption that biological parents will provide the best care for their children.  He presents an argument for terminating parental rights either at birth, or in some cases before birth, when a parent has previously demonstrated gross misconduct in child-rearing.

The Article is excerpted below.  For the full Article, please click here.


Imagine this case: Michele was just born. Her birth mother Jane has struggled with a serious mental illness for many years and has mostly lived on the street or in abandoned buildings. Four months ago a court terminated her parental rights as to two other children, because she had abused and neglected them and then failed to respond to rehabilitative services provided by the local child protection agency. She is no better prepared to parent today; in fact, the termination threw her into a state of deep despondency and suicidal ideations. Michele's biological father John went to prison six months ago to serve a three year sentence for sexually molesting Michele's older sister when the sister was four years old. He has been drug addicted for many years, and his rights with respect to that older sister were terminated. Jane's and John's extended family members live in the drug- and crime-infested neighborhood where Jane and John grew up, and many of them are addicts also. The local adoption and social services agencies have long lists of highly qualified couples wanting to adopt a newborn baby.

The question this Article addresses is whether a state violates a constitutional right of Michele by enacting and implementing a law that places her at the outset of her life into a legal parent-child relationship with Jane and John rather than with one of the couples who has qualified for adoption. That is, in fact, what would happen in any state today.  State statutes would also confer on Jane and John, as Michele's legal parents, a presumptive right to physical custody of her, thus requiring birthing facility personnel to hand over the baby to Jane (rather than to an adoption agency) for her to take home, absent child protection agency intervention.  Thus empowered by state statutes, Jane would almost certainly take Michele from the hospital to live with her, and Michele would then be at great risk for serious abuse and neglect.

Moreover, after forcing Michele to be in this dependent relationship with someone demonstrably unfit to parent, the state will do little or nothing to prevent or mitigate the expected damage to her. Most likely the local child protection agency would not even be aware of Michele's birth, and even if it were aware it would have no clear legal authority to do anything to protect Michele until after she incurs abuse and/or neglect.  And so, as a result of the state's statutes consigning her to a legal relationship with Jane and John and to the custody of Jane, Michele will likely experience material and affective deprivation, the trauma of abuse, and the travails of foster care, in turn depriving her of a secure attachment with a consistent, nurturing caregiver and causing her to suffer serious neurological, psychological, emotional, and social damage. This early damage from deficient parenting, coupled with growing up in an inhospitable and unstable environment, will severely undermine Michele's life prospects. Her childhood, adolescence, and adulthood will likely be marred by numerous dysfunctions…

Thus, current state parentage statutes dictating the family lives of babies born to manifestly unfit birth parents predictably and substantially endanger babies' wellbeing and severely undermine their chances for a happy and fulfilling life. States do this to babies even though they could avoid doing so without great difficulty and could in addition save taxpayers a lot of money by leaving such children free for family formation with different, fit parents at the outset.  Might it be unconstitutional for the state to do this to babies?


III. Children's Due Process Right Against Bad Parentage Decisions

As an initial matter, a newborn baby clearly can and does possess constitutional rights against the state. The Supreme Court has made clear that children are persons who have rights under the federal Constitution. … The Constitution simply does not permit legislatures to use babies in that way to ease the suffering of adults. This is so even though we recognize that the state must establish some legal rules as to who will be the legal parents and custodians of newborn children. That the state inevitably must intrude into babies' intimate lives to the extent of choosing legal and custodial parents for them does not mean that it is constitutionally unconstrained in how it does so.

The most fitting articulation of a constitutional right of newborns against the state in relation to parentage statutes would be in terms of the Fourteenth Amendment Due Process Clause... The Supreme Court has stated that the Due Process Clause … serves the broader purpose “‘to secure the individual from the arbitrary exercise of the powers of government.”’


C. State Justifications for Infringing the Right

If babies have a fundamental substantive due process right against the state placing them in family relationships with unfit parents, then a challenge to maternity and paternity laws as applied to a newborn whose birth parents are manifestly unfit would put the state in the position of having to show that such laws, without exceptions for unfitness, are narrowly tailored to serve a compelling state interest. The state would need to demonstrate that placing newborn babies into legal and custodial relationships with birth parents without regard to fitness is necessary to avoid some other great and overriding cost.

Importantly, avoiding additional administrative costs would not be sufficient justification.  Even if it were, the reality is that there would be little additional administrative burden from identifying presumptively unfit parents at the time of birth rather than after they have damaged a child. To identify birth parents presumptively unfit by virtue of past conduct, state-level child protection agencies need simply install a computer program that cross-checks databases the state already possesses… Prevention would be much easier and cheaper for the state than would remediation. 

1. Birth Parents' Constitutional Right to Be Legal Parents

Many people speak as if there is a well-recognized constitutional right of biological parents per se to become legal parents. In reality, the U.S. Constitution contains not a word about parenthood, and the Supreme Court has never held that there is such a right. In fact, as discussed below, the Court has implied that unfit parents have no such right.

b. The Moral Basis for State Creation of Families

When the state decides who will be a child's legal and custodial parents, it acts in a special role in which it should be unconstrained by, and in fact should not defer to, alleged rights of other private parties. … the state cannot legitimately invoke its police power to decide who a child's parents will be and thereby base its decisions on a balancing of the child's welfare against the desires or interests of the birth parents or against the interests of the rest of society. The parens patriae power, not the police power, is the sole appropriate basis for the state making such a decision about a person's life. …

2. Parents' Interests

Apart from any constitutional or natural law claim biological parents might have, there is the simple and undeniable fact that many biological parents who are denied legal parent status of their offspring will thereby experience a great sense of loss and emotional suffering. Not all will; a substantial percentage of parents in the child protective system manifest surprising indifference.  But many would suffer emotionally and psychologically.

First, the practical difference between the current regime and the one I propose is substantial for children but not for parents. The practical difference for children arises from the fact that states currently react to parental unfitness typically only after a child is harmed. … Opponents of child welfare interventions often suppose simplistically that all parents are always better off having custody of their offspring rather than not, but that ignores the real costs to parents of the state putting them in a position to damage their offspring and also ignores, on the other hand, the consolation birth parents can experience if the child they create is adopted before being damaged and goes on to live a healthy, flourishing life.


For the state to force any persons into intimate relationships that are very likely to be seriously detrimental to them is an unconstitutional abuse of state power, and never more so than when those persons are in the developmentally crucial period of infancy. Courts should recognize that newborn babies, much more clearly than birth parents, have fundamental interests at stake in the state's selection of legal parents and, therefore, a much stronger claim to constitutional protection. Attributing to newborns a substantive due process right against the state placing them into relationships with manifestly unfit birth parents would not require child protection agencies to do something entirely unprecedented as a practical matter. It would, however, force states to do something they have proven very resistant to doing--namely, to identify at the time of birth those babies at highest risk of maltreatment and to act expeditiously to ensure that better parentage decisions are made for them, thereby dramatically improving the infants' life prospects. Recognizing and effectuating this constitutional right of newborn children should also transform public attitudes and understandings about family formation, by highlighting the state's role in that process and its responsibility for the outcomes.