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If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged first paternal authority, and then parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.

The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.

This chapter explores the topic of whether we should institute some kind of parental licensing scheme, that is, require biological parents to demonstrate certain competence and character before they are permitted to parent their biological children. Existing concerns regarding parental licensing tend to be practical concerns such as whether there can be a reliable way of determining who is a competent parent and whether the parental licensing scheme can be enforced. These practical concerns leave open the possibility that parental licensing is theoretically correct. This chapter presents a new, theoretical case against parental licensing. In particular, it is argued that biological parenting should not be licensed because biological parenting is a fundamental (human) right and fundamental rights should not be licensed.

We expect decent parents will discharge their responsibilities to children properly and exercise their authority over children in a reasonable fashion. However, some would-be parents are either unable or unwilling to be decent parents. Such people fail to meet standards of parental competency, and their right either to become parents with authority over children or to continue as parents can be called into question. Although some failures of parental competency are obvious, there are significant controversies about what constitutes decent parenting. This chapter explores parental competency along three dimensions. First, what are the principal elements of a satisfactory account of parental competency? Second, to what degree are there feasible strategies for tracking both prospective parental competency and actual parental competency? Third, how are judgments of parental competency (whether prospective or actual) relevant to determining who has either a right to become a parent or the right to continue as parent?