Akshat Agarwal:  Akshat Agarwal is a doctoral candidate at Yale Law School working on the legal regulation of the family. His dissertation explores how concepts such as parenthood, parents’ rights and children’s interests change as the law responds to this rise of non-traditional families. Apart from the family, his research interests include constitutional law, and global political economy with a regional focus on South Asia.  He will be starting as Visiting Assistant Professor of Law at the Boston College School of Law this Fall.

By Akshat Agarwal

 

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.

 

By Carlo Sariego