Akshat Agarwal (Yale Law School) has recently posted to SSRN his paper, Constitutional Parents' Rights and the Transformation of Parenthood. Here is the abstract:
This Article argues that constitutional parents’ rights are essential to
understanding parenthood law’s transformation to recognize non-traditional
families. Such families, which include families formed through assisted
reproductive technologies, LGBTQ+ families, and families in which non-
parental caregivers perform parental roles, require the recognition of a non-
parent’s relationship with the child. Yet the constitutionalization of parents’
rights—by granting parents the right to exclude non-parents from accessing
parental rights and responsibilities—makes it harder for a non-parent to form
a relationship with a child over a parent’s objection. Because constitutional law
thus situates parenthood as an exclusive status, law-reform efforts have focused
not on extending parental rights and responsibilities to non-parents but on
expanding the legal definition of parenthood itself. In that way, parenthood has,
perhaps counterintuitively, become more inclusive. This means that
constitutional parents’ rights have not only made parenthood law a site of deep
contestation over children’s interests and parental authority but also equality.
This Article makes this argument by using English law, from which American
family law descends but where parents’ rights are not similarly
constitutionalized, as a comparative foil.
This Article makes three significant contributions to existing literature.
First, it explains how the constitutionalization of parents’ rights structures
parenthood law and what that means for the recognition of non-traditional
families. Second, it offers a different perspective on parents’ rights by showing
how a focus on parents’ interests can contribute to a progressive emphasis on
the equality of non-traditional families. Last, by using English law as a
refractive lens for understanding American law it offers a novel method for
doing comparative law.