Okay, I can’t believe I’m actually blogging about the Anna Nicole Smith case, but I do want to make one point.
There seems to be a universal presumption that whichever guy turns out to be the biological father of her baby (FWIW, the DNA experts now say it’s Larry Birkhead) is rightfully entitled to custody.
Why? Inasmuch as the child comes into existence inside the mother, sole custody must initially belong to the mother. She can decide to share custody once the child is born, but – assuming the inalienability of self-ownership – she can’t surrender any part of her custody prior to the child’s birth, for the same reason that you can’t sell your blood while it’s still in your veins: so long as control over X is inextricably associated with control over Y, one can’t give up the former if the latter is inalienable. The biological father thus has no enforceable rights beyond what the mother chooses to grant him. (He may have various moral claims, depending on circumstances, but that’s another matter.) He surrendered all claim to his sperm and its issue when he deposited it in someone else’s body. (What about implicit contracts? I don’t rule those out – but such contracts can only involve the transfer of alienable rights. So at most an implicit contract could require the mother to compensate the father financially if she denies him shared custody. Or so it seems to me.)
Thus the medical determination of the child’s paternity is not the decisive issue. What would be much more relevant would be to know which man Smith would have preferred to receive custody. Now I gather that there’s some controversy about the answer to that question too; still, that seems to me the more important question to ask.
It would seem that if biology is not at least a major factor (and we are ruling out, for the time being, implicit contracts), then the right question to ask is who would the baby prefer to have custody. With all due caveats about the law as is, then, the “custodian” is merely supposed to be a trustee for the baby and, until such a claim can be established, the court is a trustee to find the trustee. I cannot see how libertarianism qua libertarianism gives any guidance as to who the trustee should be based on biology, per se – the mother shouldn’t have any supposition either. Rather, we take the biology as a good guide to who will most effectively and honestly attempt to seek the interest of the child. [Having said all that, I don’t know that libertarianism will give a good theory of family in the same way that we can derive most other theories from NAP. If children are people, within the terms embraced by NAP, then, strictly speaking, they oughtn’t have guardians but as they chose – which also has inalienablity issues. If they are not, well, that has its own set of difficulties.]
I think guardianship is a bundle of rights and duties which can be homesteaded. The motehr is the first homesteader and can transfer the guardianship s she pleases, subject to the limits in the duties.
Okay, I’ve thought this over for a while – I think the issue is over the nature of guardianship. (I leave aside the homesteadability of it.) It seems that the whole issue revolves around whether the baby is a person in the libertarian sense: if so, then I can’t figure out why there should even be any such thing barring consent. Consider the analagy of a sick person: it is the weakened person, not some previous or current caregiver, who decides what (if any) care they wish to recieve (I will also leave aside the consideration on the other side: in this case, at any rate, the baby is quite able to provide ample consideration.) The question over the property rights in the guardianship is, at best, subsidiary to the nature of the guardianship itself. Maybe I am missing something, or (more likely) I am attempting to push theory too far by insisting on a binary distinction between agent/other; it still seems the idea that the rights of guardianship are better concieved of as duties to the guarded, thus the choice of the guarded should be primary, not the choice of the previous guardian. (I acknowledge that this seems uncomfortable because babies really can’t make these decisions. Still, to carve out a baby exemption seems dangerous, at best, possibly leading to all sorts of slippery slope nonsense.)
I’m not sure how far we disagree. As I see it, acting as guardian of a child is analogous to acting on the behalf of an incapacitated person, where if one cannot ascertain the person’s actual will you go by your best understanding as to what their will would be. Your right to make decisions on behalf of the child is then conditional on your decisions being guided by cocnern for the child’s counterfactual wishes, as it were guardianship is a right conditioned on a duty. That certainly places limits on how and to whom one can transfer one’s guardianship. But as long as one has guardianship the legal burden is on those who claim you’ve exercised it wrongly, and so when it comes to transferring it the burden lies on those who claim it was a violation of guardianship duties to transfer it as you did.
Inasmuch as the child comes into existence inside the mother, sole custody must initially belong to the mother.
Custody is more than possession. It is a legal claim of right over the upbringing of the child. Although the child gestates inside the mother, I see no reason why the father doesn’t have equal rights and responsibilities over the upbringing of the child. After all, he shared equally in the child’s creation; he shares equally in the duty to guard the child’s rights until he or she can defend them.
Guardianship involves the right to make decisions for the ward. You can’t have a right to make decisions about someone who’s in someone else’s body.
How aboot genetics? 9/10ths of the Law ya’ll.