Who Decides?

Abstract

Conflicts between the state and adults who are or wish to be parents arise in connection with creation, regulation, and dissolution of parent-child relationships. In any such conflict, the first question that arises is who should make the legally effective decision – that is, to create a legal parent-child relationship; to confer on or withhold from legal parents particular powers, rights, privileges, and duties; and whether to terminate an existing legal parent-child relationship. This chapter explains why it must be the state that possesses ultimate decision making authority in all these contexts. It further explains why we should view the state as a fiduciary for the child, rather than an agent for society collectively, in any context where it is making for children a kind of decision that autonomous persons are entitled to make for themselves.