The Theory of Parental Responsibility argues that parents have enforceable positive obligations to their children based on the legal principle of creation of peril. In creating a child, parents change the state of the world from one in which there was not a specific rights-bearing person in peril, to one in which a specific rights-bearing person is in peril.
In contrast, adoptive parents are not the creators of the child. Do adoptive parents still have positive obligations through creation of peril? Or do they have positive obligations through some other means? Or do they not have positive obligations?
Contract
A common way to acquire positive obligations is by contract. Since adoption usually involves contracts, one might argue that adoptive parents can acquire positive obligations via contractual obligations. However, any contract would be between the biological parents and the adopters, since children cannot contract. Such a contract would make the adopters agents of the biological parents, contracted to fulfil various duties on their behalf. It would not create a claim by the children against the adopters (or negate the children's claim against their biological parents). Is there any way that adoptive parents acquire positive obligations to the children themselves, such that the children have a legitimate claim against them?
Peril
I believe adoptive parents do acquire positive obligations through creation of peril. The basis is:
- A child is owed obligations from his natural parents through creation of peril.
- An adoptive parent is relieving the natural parent of that obligation and assuming it for themselves.
- In doing so, the adoptive parent removes the child from the protection of the natural parents (i.e. takes the child away from the care that they are owed by their natural parents).
- The adoptive parent has thereby removed the obligated caregiver from the child's life, which is the creation of a state of peril, and this gives the adoptive parent a positive obligation to act as the new caregiver.
It may be objected that adoption is probably taking place because the natural parents either cannot or will not meet their obligations. Even if we accept that this is the case and that the natural parents have not been fulfilling all their obligations, the adoptive parents are still effectively cutting off any chance that the child has of receiving care from the natural parent. This is the creation of peril, and it is mitigated by the adoptive parent meeting the obligations instead.
Abandonment, Custody, and Creation of Peril
What about the case of abandoned babies that are adopted? In this case, the adoptive parent has not deprived the child of the natural parent, since the natural parent has abandoned them. The adoptive parent is also not bound by contract, since there is nobody to contract with. Does this mean that the adoptive parent does not have enforceable positive obligations?
I am not sure. A tentative answer is that the process of taking custody is a kind of creation of peril. When an adoptive parent takes custody over an abandoned child, there are various logical consequences:
- The adoptive parents are excluding anyone else from parenting the child
- In doing so, they are effectively depriving the child of the possibility of parental care from anyone but themselves.
- Since this is essentially cutting the child off from care from others, one might argue that this creates positive obligations to provide the care.
I'm still evaluating whether this argument is correct. Any feedback would be welcome.