Most historical examples of the bogus theory of parental ownership have been patriarchal. For example, parental ownership of children was recognised in ancient Roman law as "Patria Potestas"- a power held by the father over the rest of the family and household. In Patriarcha, Robert Filmer argued that a father has rightful power of life or death over his children just as a king has over his subjects.
In contrast, some libertarians adopted an odd variant of the theory of parental ownership in which the mother is the owner, not the father. They argue for a matriarchal theory of parental ownership, whereby mothers have a property right over their children (albeit a much more limited property right than the kind envisaged by patriarchalists like Filmer). These libertarians see this as a property right to occupy the role of the child's guardian. According to Roderick Long,
Another way to homestead guardianship of a child is to give birth to the child; the mother starts out as the child's guardian, a position to which no one else (not even the father) can have a claim unless the mother grants it.
Libertarians who think this are applying something like the labour theory of value to literal birth labour to determine that mothers have more of the rightful ownership of a child than fathers. Walter Block expresses it like this:
In effect, the mother “homesteads” the baby within her body, with a little initial help from the father … homesteading theory would still give primacy to the mother, not the father, in that she did far more of the “work” of gestating the baby than did the father.
Gestationalism
What these libertarians are advocating is the idea of gestationalism. Gestationalism is the argument that birth mothers have the only rightful claim to parenthood based on the fact that they did the work of gestating the baby and giving birth. It is a variant of the theory of parental ownership that gives ownership to the mother.
Gestationalism is wrong for two key reasons:
- Parents do not own their children, as discussed in a previous post.
- Gestation is not an act of creation.
James Lindemann Nelson gave a succinct refutation of the idea that gestating a child is an act of creation:
But doesn't the causal theory disturbingly suggest that parental duties are not as stringent for fathers as for mothers? After all, mothers seem to make a greater causal contribution to the existence of their children, and aren't those more causally responsible for a threat to someone generally presumed to bear greater moral responsibility as well? This implication follows only if the process of gestation is seen as contributing to the existence of the child. Another way to look at pregnancy is that it is, rather, the first kind of nurturing that mothers provide for a fetus which has already come into existence at conception.
Gestationalism is a bad argument to justify parental authority based on a theory of parental ownership via homesteading through the work of gestation. It is wrong on all counts:
- Parents do not own their children, they are the guardians of their children.
- They are obliged to be guardians because they put the children into a state of peril by creating them.
- Both the mother and father are jointly and severally liable.
- Parents have authority as a result of their obligation, not the other way around.
- And gestation itself is not creation, it is just one kind of nurturing that takes place for a child that was already created at conception.