The Origin of Parental Rights: Labor, Intent, and Fathers

Most theories of parentage fail to explain the genesis of the right to parent—for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized as legal parents, even if they are not genetically related to the child. A labor-based understanding of parentage may even reach to gestational work performed by the pregnant woman. This Lockean labor-based theory, however, poses a challenge to male parental rights, because men have fewer opportunities to contribute labor for the benefit of the child. This disparity is heightened in the context of unwed biological fathers, who must create a significant relationship with the child before gaining constitutional parental rights. This Article argues that intent to be a father, as demonstrated through behavior preparing for a child’s arrival, should be incorporated into labor-based theories of parentage. Including an intent-based approach will thus address a gendered inequality in existing parental law