Baby Veronica is three and a half years old. She is the focus of a contentious Supreme Court decision concerning her custody status. One contending party are her adoptive parents, Matt and Melanie Capobianco who have raised her since birth, when her natural mother gave her up for adoption. On the other side of this legal quandary is Dusten Brown, the natural father, who showed no interest in her nor offered financial or any other type of support for her since she was born.
The case is complicated by the fact that Veronica is 3/256th Cherokee (don’t ask), and according to the 1978 Indian Child Welfare Act, the nod should go to the biological dad. The purpose of this law was to prevent the involuntary breakup of first nation families (Brewer, 2013; ICTMN, 2013; Wolf, 2013).
What is the libertarian take on this issue? We need not concern ourselves with this bit of racist legislation. For the principled voluntaryist, people are people are people. There are no just laws that make invidious or any other distinction between us based on ethnicity, tribe, race, etc.
In order to ferret out the libertarian perspective, we must get back to basics. Children occupy an intermediate ground between that of animals and other adult human beings. (I know, I know, this sounds a bit weird, but hear me out.) The former can be owned and disposed of at will. The latter, apart from voluntary slavery, cannot be the private property of anyone else. Children, in sharp contrast to both, may be controlled by parents, under a very different type of legal provision, not ownership, of course, but, rather, attainment and retention of guardianship rights. This means that as long as the parent is properly guarding, safe-guarding, caring for, bringing up, the child, he maintains his right to continue to do so. No one else may take his child away from him, even if the latter can give the youngster a better life, even if that would be in the child’s best interest. Bill and Melinda Gates could, presumably, give any children they adopt more advantages than practically any other parents on the planet. But they may not seize anyone else’s children from their parents despite this stipulated fact. For it is the biological parents who own these guardianship rights; the right to bring up their children as they wish, provided only that they continue to nurture and care for them, and do not engage in child abuse. These rights of theirs then protect them against a Gates’ or anyone else’s takeover of their progeny.
How are these rights first established? In the good old fashioned way: through pregnancy and child birth of course. The parents in effect “homestead” not of course any ownership over their children which do not and cannot exist, but rather guardianship rights over them.
May they give up these rights? Yes. To the extent a person may not give up, or sell, or relinquish rights, it is to that extent he does not really fully own them. If the parents do not continue to feed, clothe and otherwise care for their children, or abandon them, they lose these guardianship rights. Or, the parents may give them up for adoption to others who will properly exercise these rights, and lose them in this manner. May the parents do this in return for financial compensation? Of course, at least in the libertarian universe. Here, if an act is licit, it changes matters not by one iota when money changes hands over this transfer of rights. Similarly if sexual relations are legal, then so is prostitution. If donating blood or organs is not against the law, then neither should be selling them.
However, guardianship over children is not a sometime thing. Once the parent fails to fulfill this ownership obligation, he loses it. Entirely. There should be no question about Brown’s parental rights over Baby Veronica. They no longer exist. He gave them up when he failed to provide guardianship services to her at birth. The rightful ownership, of course, belongs not to Baby Veronica but to the parent/guardian, or the adoptive parents the Capobiancos.