Hafen - Hafen, Abandoning Children (HILJ, 1996) PDF

VOLUME 37, NUMBER 2, SPRING 1996
Abandoning Children to Their

Autonomy: The United Nations
Convention on the Rights of the Child
Bruce C. Hafen*
Jonathan 0. Hafen**
In 1989, the United Nations General Assembly adopted, without a

vote, a new Convention on the Rights of the Child (CRC).' Within a
year, 130 nations had accepted the CRC, 2 and the number now reaches
176. 3
As approvals of international human rights treaties go, this is such
blinding speed that the CRCs widespread acceptance seems surpris-
ingly uncritical-especially for a convention that includes an unprece-
dented approach to the legal -and personal autonomy of children. Al-
though it restates many time-honored United Nations themes about
children, the new CRC would also arguably alter United States laws
regarding age limits, parental rights, and children's rights to expres-
4
sion, media access, privacy, and religion.
Since American children's rights advocates took the lead in devel-
oping the CRC'S unique provisions for child autonomy, it is curious
* Provost and Professor of Law, Brigham Young University.

** Associate, Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, Utah.
We first became interested in children's rights over 20 years ago, when one of us was a young
law professor interested in emerging individual rights movements and the other was his seven-
year-old son, who thought he should have the right to vote. "I know a lot more about Nixon
and McGovern than Grandma and Grandpa do," he said. This Article reflects our continuing
intergenerational dialogue about parents and children. We thank Eric Lind, Joi G. Pearson, and
Sherry Littler for research assistance.
1. Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp.
No. 49, at 166, U.N. Doc A/441736 (1989) [hereinafter CRC].
2. Most published commentary on the Convention describes the number of countries that have
"approved of' or "adopted" it without distinguishing between merely signing the Convention
and fully ratifying it. Of the first hundred or so countries that had signed it within its first year,
only about half had legally ratified it. "The only obligation incurred by signing the Convention
is a State's promise to review the treaty with an eye toward future ratification." Cynthia P. Cohen
& Howard A. Davidson, Preface to CHILDREN'S RIGHTS IN AMERIcA: U.N. CONVENTION ON
THE RIGHTS OF THE CHILD COMPARED WITH UNITED STATES LAw iii, iii-iv (Cynthia P. Cohen
& Howard A. Davidson eds., 1990) [hereinafter CHILDREN'S RIGHTS IN AMERI A].
3. U.S. Finally Agrees to Sign UN Accord for Children, CHI. TRIB., Feb. 12, 1995, § 1, at 22.
4. See infra part I.B.
HarvardInternationalLaw Journal / Vol. 37
that the United States is not yet among the ratifying nations. 5 The
sluggishness of the United States might be explained by a traditional
American reluctance to adopt international human rights treaties. More-
over, U.S. family law is typically reserved to the states, which compli-
cates the process of federal Senate ratification. A more speculative
possibility arises from the fact that the United States legal mainstream
has never embraced the notion of legal autonomy for children. Some
CRC proponents have nonetheless incorrectly implied that their posi-
tions reflect the current state of United States law-which is unfortu-
nate for those in the international community who have relied on their
claims. This raises the question whether advocates of child autonomy
who have been unsuccessful in United States legal circles have turned
to the CRC as a way of leveraging U.S. legislatures and courts toward
what they can now present as an international, human rights-based
vision of children's legal status. 6 Whatever the reasons for U.S. delay,
the Clinton Administration announced in February 1995 that it had
7
signed the CRC and would send it to the Senate for ratification.
The 1989 Convention was not the first time an international organi-
zation has expressed aspirations for the world's children. The League
of Nations in 1924 adopted the Geneva Declaration on the Rights of
the Child, which asserts that "mankind owes to the child the best it
has to give."'8 The United Nations adopted an impressive "Declaration
on the Rights of the Child" in 1959. All three declarations laudably
urge the protection and personal development of children and seek to
improve children's health, nutrition, safety, and education.
The 1989 statement also charts what the U.N. calls "new territory" 9
by moving beyond protection rights to choice rights for children. Accord-
ing to an official U.N. description, the CRC promotes a "new concept
of separate rights for children with the Government accepting [the]
responsibility of protecting the child from the power of parents .... "10
5. See infra note 54.

6. In part through her experience as a delegate to the United Nations Fourth World Confer-
ence on Women in 1995 at Beijing, Professor Mary Ann Glendon has found that "there is an
increasing tendency for advocates of causes that have failed to win acceptance through ordinary
democratic processes to resort to the international arena, farremoved (they hope) from scrutiny
and accountability. [Such advocates] can be expected to keep on trying to insert their least popular
ideas into U.N. documents for unveiling at home as 'international norms."' Mary Ann Glendon,
What Happened at Beijing, FIRST THINGS, Jan. 1996, at 35.
7. See U.S. FinallyAgrees tosign U.N. Accord for Children, ipra note 3. The Senate has not yet
ratified the CRC, leaving the U.S. "on the list of 22 countries that have yet to ratify" it. Jaya
Dayal, U.S. Children, UN. Convention Gets U.S. Support, Inter Press Serv., Feb. 16, 1995, available
in Westlaw, 1995 WL 2258886.
8. U.N. DEPT OF PUB. INFO., CONVENTION ON THE RIGHTS OF THE CHILD: WORLD
CAMPAIGN FOR HUMAN RIGHTS at 1, U.N. Doc. DPI/1101, U.N. Sales No. E.91.I.51 (1991)
[hereinafter U.N. BOOKLET].
9. Id. at 3.
10. UNITED NATIONS 1994195 PUBLICATIONS CATALOGUE at 64.
1996 / Convention of the Rights of the Child
To this end, the CRC's proponents say it "recognizes that children

should have rights identical to adults'."" Therefore, the CRC takes a
"quantum leap" beyond the U.N.'s 1959 Declaration by adopting and
promoting "an 'autonomous' view" of children's rights that is "more
based on choice than needs" of children.1 2 The new "civil rights"
provisions of the CRC reject the "integrative" character of the 1959
Declaration, which had emphasized the "integration of persons into
society," and instead provides children with "'a sphere of autonomy and
13
freedom from control."'
While there is much to praise in the CRC's approach to child
protection, in this Article we take the position that the CRC's vision of
child autonomy is misguided. Part I offers some historical context for
this argument, and then Part II considers the CRC's autonomy-ori-
ented provisions. We conclude that the CRC ironically undermines the
process of teaching children to act with actual autonomy and that it
confises an understandable fear of state paternalism with an unwar-
ranted fear of parental paternalism.
I. KIDS ARE PEOPLE TOO: AUTONOMY IN CHILDREN'S

RIGHTS DISCOURSE
A. Autonomy in Children's Rights Law

We have summarized elsewhere the emergence of autonomy con-
cepts in the application of constitutional principles to family law.14 In
general, although the Bill of Rights was originally established to
protect citizens from the state, Americans have in recent years begun
to apply the potent legal and political concepts of individual rights to
their reasoning about relationships between husbands and wives, and
children and parents. As a result, United States law at times invades
the intimate domain of family relationships. There the law pries-
sometimes blows-apart the connections that make human interde-
pendence possible, assigning its highest priority to "the right to be let
alone."15
11. Michael Jupp, Confronting the Challenge of Realizing Human Rights Now: Rights of Children:
The United Nations Convention on the Rights of the Child: An Opportunityfor Advocates, 34 How. LJ.
15, 21 (1991) (noting, however, that there may be some exceptions, such as during wartime).
12. Robert E. Shepherd, Civil Rights of the Child, in CHILDREN'S RIGHS IN AMERICA, supra
note 2, at 135 (quoting Lee Teitelbaum, Forward: The Meanings of Rights of Children, 10 N.M. L.
REv. 235, 238 (1980)).
13. Id.
14. Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991
B.Y.U. L. REv. 1.
15. Justice Brandeis's phrase in his dissent in Olmstead v. United States, 277 U.S. 438, 478
(1928), which originally critiqued electronic eavesdropping by the state, is now frequently cited
to support the general contemporary spirit of autonomous legal personhood. See, e g., Bowers v.
Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting).
HarvardInternationalLaw Journal / VoL 37
Professor Janet Dolgin has summarized the recent trend toward
personal autonomy in family law with the generalization that United
States society has recently moved from an outdated world in which
attitudes about both women and children were "founded in a hierar-
chical ideology that manifestted] natural differences in the actual rela-
tionships between people to . . . an egalitarian ideology that presumes
the autonomy of the individual in a world of contract."'16 Professor Dolgin
moderates her enthusiasm for this new vision by realizing that it leaves
family members, including children, "without a sense of ultimate
responsibility within, and toward, any social group."' 7 She senses that
the new spirit of autonomy is unable to "anchor people in a social order
that encourages responsible connection."18 But in the world she de-
scribes, the presumption of autonomy remains, eroding our interde-
pendence within families and leaving us unsure whether the natural
bonds between spouses, parents, and children are valuable ties that
bind or sheer bondage. The right of legal autonomy thus increasingly
means the right to be left alone, even within the family structure.
Consider the emergence of autonomy in the more specific context of
legal rights for children. The nation's first children's rights movement
was led by the "child savers" of the late 1800s. This movement
challenged the tradition of unlimited parental sovereignty by staking
the community's own claim to "its" children as the source of democ-
racy's future and by asserting children's needs for protection against
parental exploitation. 19 But this early approach to rights for children
centered on the child's special need for protection and development,
not on the child's autonomous right to make his or her own choices.
Advocates for parental claims and for community claims regarding
children expressed competing visions, but all implicitly agreed with
John Stuart Mill that his doctrine of individual "liberty" applied "only
to human beings in the maturity of their faculties. We are not speaking
of children [who] must be protected against their own actions as well
'20
as against external injury.
During the last century, United States society thus developed strong
commitments both to protecting and developing its children, as evi-
denced by the public school system and the nation's juvenile courts.
Throughout this era, the concept of minority legal status has protected
children from their own temporary lack of capacity. Rather than dis-
16. Janet Dolgin, The Family in Transition: From Griswold to Eisenstadt and Beyond, 82 Gro.
L.J. 1519, 1520 (1994) (emphasis added).
17. Id. at 1570.
18. Id. at 1571.
19. Barbara B. Woodhouse, Who Owns the Child?: Meyer and Pierce and the Child as Property,
33 Wms. & MARY L. REv. 995, 1050-59 (1992).
20. John S. MILL, ON LIBERTY 13-14 (1956).
criminating against children, this tradition sought to give children

advantages designed to protect them from abuse and nurture them
toward maturity.
The idea of minority status limits the right of children not only to
make contracts, shoot firearms, and drive cars, but also to exercise one
of the most significant individual rights, the right to vote. Yet no one
has more interest in school board elections than the students. The
rationale for so limiting minors', rights arose from the need to protect
society against children's lack of mature capacity as well as protecting
children themselves. And in a broad and affirmative sense, all children
have enjoyed a very significant (and expensive) "right" to be educated
in ways that would develop their capacities until they are capable of
actual autonomous action.
Not until the early 1970s did the first "kiddie libbers" appear, arguing
for the first time that the legal rights of minors--children under age ' 21
eighteen-should be regarded as "coextensive with those of adults,
and that children "are autonomous individuals, entitled to the same
rights and privileges before the law as adults. '22 Some of the new child
advocates urged in broadly unrealistic ways the removal of all tradi-
tional restraints that were based solely on a child's age-including the
removal of minority legal status itself.23 Since that time, some writers
have focused their arguments more precisely, advocating a shift in the
presumption of childhood incapacity. These writers are urging that the
law presume children capable of autonomous legal action unless the
evidence in an individual case shows otherwise. 24 Others are more
willing to presume that young children lack legal capacity, but they
have advocated using customized, subjective determinations 25
of personal
capacity rather than traditional age-based classifications.
21. State v. Koome, 530 P.2d 260, 263 (Wash. 1975).

22. Brief for State Respondent at 23, In re Snyder, 532 P.2d 278 (Wash. 1975) (No. 43400).
23. Sir ag., RIcHARD FAmSON, BTHnuGHTS (1974); JOHN HOLT, ESCAPE FROM CHILDHOOD (1974,
James H. Manahan, ChildensLib, A.BA_ SEC INDnvDuAL RTs. & Rnsps. NEwsL, Spring 1976, at 2.
24. Perhaps the most prominent advocate of such a shift is Hillary Rodham Clinton. See, ag.,
Hillary Rodham, Children's Rights: A Legal Perspective, in CHILDREN'S RIGHTS: CONTEMPORARY
PERSPEcTIVEs 21, 33 (Patricia A. Vardin & Ilene N. Brody eds., 1979). For a brief discussion of
Rodham Clinton's views in this regard, see Jonathan 0. Hafen, Children's Rights and Legal
Representation-The ProperRoles of Children, Parents, and Attorneys, 7 NoTRE DAME J.L. ETHIcs &
PUB. PoI'Y 423, 431-36 (1993). One area in which several scholars have endorsed Rodham
Clinton's position concerns decisions involving consent to medical treatment. See, ag., Gerald P.
Koocher, Competence to Consent: Psychotherapy, in CHILDREN'S COMPETENCE TO CONSENT, 111,
123 (Gary Melton et al. eds., 1983) (in context of medical treatment decisions, children should
be presumed competent); Richard E. Redding, Children's Competence to Provide Informed Consentfor
Mental Health Treatment, 50 WASH. & Ln L. REv. 695, 726 (1993) (arguing that all age-based
presumptions should be rebuttable). For a response to such views, see Hafen; The Constitutional
Status of Marriage,infra note 58, at 515 n.238.
25. Se4 ag, Patricia A. Olah, Note, The 'SquealRule' and a Minor's Right to Privacy, 12 Ho sTRA
Harvard InternationalLaw Journal / Vol. 37
The most zealous proponents of children's liberation relied not on

claims that young people now have adult capacity, but on general
liberationist ideology. For example, we once asked a scholar who was
involved in the egalitarian movements of the 1960s and 1970s why
in our legal system we have always limited the legal rights of chil-
dren.2 6 "We?" he replied. "Who are we to limit the rights of children
or anyone else? Nobody has that right. Rights are inherent in the
autonomous individual, and by definition rights may never be limited
by any society or any group." He continued, "Shouldn't a child be
permitted to divorce his or her parents?" In answer to the question of
what rationale-better still, what legal theory-was driving him, he
replied, "kids are people too." 27 For him, each person is an autonomous
being, and no limit on a constitutional right is ever justified, regardless
of age or other conditions, except perhaps the obvious circumstance
where one's exercise of a right inflicts tangible harm on others.
These broad arguments for children's legal autonomy have appeared
in both legal and general literature, 28 and their advocates have pressed
numerous claims before both courts and legislatures. In response, the
rhetoric of certain Supreme Court opinions in the student rights and
juvenile court cases of the late 1960s seemed sympathetic to emerging
children's liberation concepts. 29 Yet the Court's experience since that
time shows that it has not in fact accepted the notion of adult-level
autonomy in its approach to juvenile court or public school law, nor
has it embraced children's rights to make their own choices in most
other contexts. Justice Lewis Powell captured the collective judgment
of the United States judiciary in 1979 when he wrote in a minor's
abortion case, "the peculiar vulnerability of children[,] their inability
to make critical decisions in an informed, mature manner[,] and the
importance of the parental role in child rearing" together require "the
conclusion that the constitutional rights of children cannot be equated
with those of adults." 30 Thus, with the exception of abortion choices
by minors found to be "mature,"31 virtually all of the modern American
L. REv. 497, 524-25 (1984); David A. Richards, The Individal, the Family, and the Constitution:
A JurisprdentialPerspective, 55 N.Y.U. L. REv. 1, 23-28 (1980); Hillary Rodham, Children Under
the Law, 43 HARV. EDUC. REv. 487 (1973); Charles R. Tremper, Respect for the Human Dignity of
Minors: What the Constitution Requires, 39 SYRAcusE L. REV. 1293, 1324-30 (1988).
26. Interview with Professor Iester Mazor, at Hampshire College in Massachusetts (1974).
27. Id.
28. See generally HowARD COHEN, EQUAL RIGHTS FOR CHILDREN (1980); FARSON, supra note
23; HOLT, supra note 23.
29. See Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that public school students have
fundamental rights of procedural due process); Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 506 (1969); In re Gault, 387 U.S. 1 (1967).
30. Bellotti v. Baird, 443 U.S. 622, 634 (1979).
31. Id.; see cases cited infra note 132.
children's rights cases have been concerned not with children's rights
of autonomous personal choice, but with their rights to protection.
Many of the child rights cases of the past generation have given
children increased procedural protection, especially in such insti-
tutional environments as juvenile courts, foster care, and schools.
Such protections, however, do not expand children's range of per-
sonal choices; rather, closer procedural scrutiny seeks primarily to
protect them against the risks of unchecked adult discretion in
institutional or other settings where children's natural dependency
makes them vulnerable to excessive control or exploitation. 32 The
Court has also protected minors' rights to obtain contraceptives, 33 but
the context of that case shows that the Court's intent was to protect
sexually active adolescents against venereal disease and pregnancy, not
to grant affirmative procreation rights. 34 In the public school con-
text, it could be argued that the Court's recognition of elemental free
speech rights for students ensures a student's interest in autonomous
personal choices. Yet, the Court has significantly narrowed its early
student expression opinions, having resurrected in its recent cases the
doctrine of in loco parentis as a rationale for school authority.35 In
addition, some of the justices recognized when they first protected
adolescent speech that "a child. . . is not possessed of that full capacity
for individual choice which is the presupposition of First Amendment
36
guarantees."
B. Autonomy as IncreasedFreedom for Children in American Society

Despite only limited recognition for child autonomy as a legal
concept, the approach of U.S. law and society to children's issues over
the past thirty years has clearly experienced a rhetorical shift that
carries autonomy overtones. The language of several key court opinions
and of some of the recent scholarship in this field has thus increased
our collective sense about the independent personhood of children. For
example, the Court has clearly established the principle that children
32. ROBERT H. MNOOKIN, IN THE INTEREST OF CHILDREN: ADvocAcy, LAW REFORM, AND
PUBLIC POLICY (1985).
33. Carey v. Population Servs. Int'l, 431 U.S. 678 (1977).
34. See discussion infra part II.B.3.c.
35. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403
v. Fraser, 478 U.S. 675 (1986); Veronia Sch. Dist. 47J v. Acton, 115 S.Ct. 2386 (1995); for
additional discussion, see Bruce C. Hafen & Jonathan 0. Hafen, The Hazelwood Progeny: Limiting
Student Expression in the 90's, 69 ST. JOHN'S L. REv. (forthcoming 1996) (manuscript on file with
author). In loco parentis means literally "in the place of parents," which suggests that school
teachers or others empowered with such authority possess discretionary rights and responsibilities
to deal with children on behalf of parents with parental-like discretion.
36. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 515 (1969) (Stewart,
J., concurring) (quoting Ginsberg v. New York, 390 U.S. 629, 649-50 (1968)).
HarvardInternationalLaw Journal/ Vol. 37
possess threshold-level constitutional rights. 37 Moreover, legal scholar-

ship has drawn meaningful distinctions between younger and older
children, showing that adolescence is a "learner's permit" stage of life
in which parents and the state should and do grant children increasing
degrees of freedom as a way of developing their capacities. 38 In com-
parison with the days when the public debated whether parents or the
state "owns the child," we more clearly see now that "children own
themselves. Neither the state nor the parent owns them, although each
39
must genuinely love them and take responsibility for their future."
In addition, social agencies and the legal system have in recent years
learned more about the sources of abuse and exploitation of children.
This experience has combined with the consequences of increased
family dissolution to reveal more fully the risks that arise when the
personal interests of parents and other adults collide with the interests
of children.4 0 Reflecting such concerns, the Supreme Court's cases of
the past generation have in several ways limited the broad, paternalistic
discretion previously enjoyed by state agents in places like juvenile
courts and public schools. Across a broad front, courts have given
children greater procedural protections in such contexts as due process
hearings, foster care placement, search and seizure requirements, and
educational privacy laws.41
Although the most ardent children's liberation advocates have made
only modest gains in achieving their ultimate goals, several factors have
combined to produce a subtle but important shift in the public mind
about the autonomous status of children. These factors include an
increased level of "rights" discourse in legal rhetoric about children, a
new skepticism about paternalism among state agencies and other
non-parental providers of child care, and society's increased interest in
cultural egalitarianism regarding all groups of race, gender, and age.
These emerging popular assumptions about children's autonomy, how-
ever, are not necessarily the result of conscious public policy choices,
nor are they always beneficial for children. Indeed, reducing the dis-
cretionary judgment of authority figures can create "a vacuum that
42
deprives children of an affirmative source of support and guidance."
37. See, e.g., Hazelwood, 484 U.S. at 266; Goss v. Lopez, 419 U.S. 565, 574 (1975); In re Gault,
387 U.S. 1 (1967); Tinher, 393 U.S. at 506.
38. FRANKLIN E. ZimiNG, THE CHANGING LEGAL WORLD OF ADOLESCENCE 89-96 (1982);
see also Bruce C. Hafen, The Learning Years: A Review of the ChangingLegal World of Adolescence, 81
MICH. L. REv. 1045 (1983) (book review).
39. Woodhouse, supra note 19, at 1122.
40. See generally Ira C. Lupu, The Separation of Powers and the Protection of Children, 61 U. Cmh
L REV. 1317 (1994).
41. See In Cault, 387 U.S. 1 (1967); New Jersey v. T.L.O., 469 U.S. 325 (1985); seegencrally
Ge
MNOOKIN, supra note 32.
42. Bruce C. Hafen, Exploring Test Cases in ChildAdvocacy, 100 HARv. L. REv. 435, 446 (1986)
Our discussion of the CRC attempts to illustrate how undermining

such affirmative sources can hinder rather than enhance a child's devel-
opment of true autonomous capacity.
H. AUTONOMY IN THE UNITED NATIONS CONVENTION

ON THE RIGHTS OF THE CHILD
A. Background
While United States law has not yet embraced the notion of choice-
based autonomy for children, the idea that children should have in-
creased freedom has been expanding in recent years, perhaps reflecting
a lessening of adult responsibility for children. 43 The United Nations
Convention on the Rights of the Child (CRC) illustrates that the
movement toward increased social, even if not fully legal, autonomy
for children is growing, not only in the United States but also inter-
nationally. Since 1989, the CRC has exported throughout the global
community a new concept of presuming the autonomy of the individ-
ual child. This ideological dimension of the CRC seems related to the
U.N.'s general contemporary interest (reflected also in the 1994 Inter-
national Conference on Population and Development at Cairo)44 in the
"concept of the radically autonomous individual"-a concept that ob-
scures "the importance of families rooted in stable, marriages for the
4
well being of children." '
Before discussing the CRC's autonomy elements, we note that those
provisions comprise but a fraction of the entire Convention, and in
many respects the CRC is surely constructive. Its fifty-four separate
articles reaffirm and restate many longstanding U.N. commitments to
improving the lives of the world's children.4 6 In addition, the 1989
(reviewing MNOOKIN, supra note 32.); see also John E. Coons, Intellectual Liberty and the Schools, 1
NOTRE DAME J.L ETHICS & PuB. POL'y 495, 502 (1985) ("If the experience of autonomy is to
be available to a child, adult authority must be its instrument, for a childs freedom to choose at
all depends upon protections and limits.").
43. See infra part II.C.1.
44. See Barbara B. Crane & Stephen L. Isaacs, The Cairo Programme of Action: A New Framework
for International Cooperationon Population and Development Issues, 36 HARY. INT'L L.J.295 (1995);
George Weigel, The Cairo Conference on Population and Development: A Flawed Concept, 1995 ST.
LOUIS-WARSAw TRANSATLANTIC L.J.65.
45. George Weigel, What Really Happened at Cairo, FIRST THINGS, Feb. 1995, at 24, 26, 27.
46. The United Nations Children's Fund (UNICEF) 1994 report concerns itself almost exclu-
sively with the U.N.'s longstanding efforts against childhood disease, malnutrition, poverty,
illiteracy, and unmanageable population growth in the less developed nations. One of the report's
central themes is the "PPE problem," a term used to describe "the mutually reinforcing relation-
ships between the worst effects of absolute poverty, the continuation of rapid population growth,
and the degradation of rural and urban environments throughout much of the developing world."
JAiMES P. GRANT, U.N. CHILDREN's FuND, THE STATE OF THE WORLD'S CHILDREN 1994 2
(1994).
document reflects a significant degree of both conceptual development

and political progress throughout the field of international human
rights in recent years. Beyond reaffirming such fimdamental children's
needs as health, nutrition and physical sustenance, the CRC properly
addresses issues of drug abuse, child neglect, a healthy environment,
children in armed conflict, and the special needs of disabled children.
The CRC also clearly "acknowledges the primary role of the family
and parents in the care and protection of children, and the obligation
of the State to help them in carrying out these duties." 47 Indeed, the
CRC's Preamble describes the family "as the fundamental group of
society and the natural environment for [children's] growth and well-
being."4 8 To this end, article 5 affirms "the responsibilities, rights and
duties of parents or, where applicable, the members of the extended
family or community as provided for by local custom." 49 Article 5,
however, subtly but significantly limits its view of parental rights to
those that are "consistent with the evolving capacities of the child" and
to parental direction "of the [children's] rights recognized in the Con-
vention." 50 The question remains whether the parental rights and
duties recognized by article 5 extend only to the parental role in
enforcing rights granted to children by the CRC.
Consider now the origins of the CRC's interest in child autonomy.
Cynthia Price Cohen, an American lawyer who helped draft the CRC,
describes the earlier declarations by the League of Nations in 1924 and
by the United Nations in 1959 as being concerned solely with chil-
dren's "care and protection" rights. 51 The 1989 Convention, on the
other hand, consciously breaks new ground, creating "an important
addition to human rights jurisprudence;" namely, the notion of auton-
omy-based "individual personality rights" for children, a concept that
includes such adult-style civil rights as "speech, religion, association,
assembly and the right to privacy." 52 This notion does not reflect prior
47. U.N. BOOKLET, supra note 8, at 3.

48. CRC, supra note 1, Preamble, at 167.
49. Id. art. 5, at 168.
50. Id.
5 1. Cynthia P. Cohen, The DevelopingJurisprudence of the Rights of the Child, 6 ST. THoMAs L.
Rav. 1, 7 (1993).
52. Id. at 6 n.21. "The significance of the Convention's deviations from previously accepted
patterns for the drafting and implementation of human rights treaties can be more clearly
understood when expressed in the form of equations. That is, the original 'child rights = care
and protection' equation of the [U.N.'s 1959] Declaration on the Rights of the Child was altered
by the Convention . . . to read 'child rights = care and protection + individual personality
rights." Id at 7.
Others describe the CRC's innovative dimensions using different terms but a similar conceptual
distinction from prior U.N. statements.
[M]any commentators . . . describe and analyse the scope of the Convention in terms of
rights relating to "protection," "provision" (of services and material benefits) and "partici-
United Nations approaches to children's needs or rights, nor did it

originate in requests initiated by delegates from U.N. member nations.
Rather, during the 1980s certain nongovernmental organizations (NGOs)
formed an ad hoc group that located governmental sponsors for the
"totally new right" of individual personality, which the NGO group
promoted by taking an unusually direct role in helping to draft the
CRC.53
The leading proponents of this new vision for the world's children
were United States children's rights advocates' 4 whose arguments -for
pation" (in society and in decisions affecting the child him- or herself--the three Ps.
*T*here
[ is no doubt whatsoever that the content of the Convention constitutes a major
leap forward in standard-setting on children's issues. On a general level, we can note the
introduction of "participation" rights which had never before been incorporated in a child-
focused international instrument.
Nigel Cantwell, The Origins, Development andSignificance of the United Nations convention on the Rights
of the Child,in THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: A GuIDE
TO THE "ThAVAUX PREPARATOIRES" 19, 27-28 (Sharon Derick, ed., 1992).
53. "(A) significant portion of the Convention's rights were never part of any prior demand
for rights by or on behalf of the child. These rights ... were awarded by the Convention's drafters
without being previously demanded." Cohen, supra note 51, at 4. NGOs "played a crucial role
in the development of the text of the Convention," led by "a group of about thirty concerned
NGOs" who formed the "Ad Hoc NGO Group on the Drafting of the Convention." Id. at 16.
This group "could not propose new articles directly, only governmental delegations could do so.
Therefore, when the NGO Group wanted to introduce a proposal for protection of a totally new
right, it was necessary to find a governmental sponsor." Id. at 17. Nonetheless, "[ilr was primarily
NGOs, along with other international organizations, that actively pushed for the finalization of
the drafting of the Convention and for its adoption by the United Nations." Cynthia P. Cohen
& Per Miljereig-Olssen, Status Report: United Nations Convention on the Rights of the Child,8 N.Y.L.
SCH. J. Hum. RTS. 367, 381 (1991) [hereinafter Cohen & Miljeteig-Olssen, Status Report]. This
same group has continued to work toward "effective implementation of the Convention and
creating respect for its provisions." Id. at 382; see also Cynthia P. Cohen, The Role ofNongovernmental
Organizations in the Drafting of the Convention on the Rights of the Child, 12 Hum. RTs. Q. 137
(1990). "(Mlost of the less developed countries (did] not participate in the drafting of the
Convention." Cohen, supra note 51, at 84. Cohen praises the NGO participants and delegates
with whom they worked for introducing through the Convention the new human rights idea of
"individual personality rights" for children. Id at 6 n.21. Nigel Cantwell of Defence for Children
International confirms that the role of NGOs in drafting the CRC was not only active but
unprecedented: "It is generally acknowledged in the international community that the NGOs
had a direct and indirect impact on this convention that is without parallel in the history of
drafting international instruments." Cantwell, supra note 52, at 24.
54.
It was the United States government, supported by other Western delegations, which was
ultimately responsible for inclusion in the Convention of such civil-political rights as the
child's right to freedom of thought, conscience and religion, to freedom of expression, to
freedom of association and of assembly, as well as the child's right to privacy.
Cohen & Miljeteig-Olssen, Status Report, supra note 53 at 378; see also Cynthia R Cohen,
Introductory Note to United Nations: Convention on the Rights of the Child, 28 LLM. 1448 (1989);
Kerri A. Law, Note, Hope for the Future: Overcoming Jurisdictional Concerns to Achieve United States
Ratification on the Rights of the Child, 62 FoRDHAm L. REv. 1851, 1852 n.9 (1994).
For example, the U.S. delegation submitted to the 1988 Working Group that drafted the CRC
a proposal "on civil and political rights of the child" that included much of the language
ultimately adopted in articles 13 through 16. "In introducing [this] proposal, the representative
of the United States of America stated that... [these rights are largely the same as three enjoyed
the autonomous legal personhood of children have never been fully

accepted by the American legal mainstream. 55 Some of these advocates
have erroneously implied that the CRC simply restates traditionally
accepted protections for children 56 and that their positions reflect the
current state of United States law.57 The degree of this exaggeration
regarding United States law is best illustrated by the comparison that
follows, which demonstrates the relationship between specific CRC
provisions and current United States legal positions. To the extent that
such exaggeration exists, it raises the possibility that, having failed to
convince United States courts and legislature to adopt their views,
certain child advocates consciously pursued and shaped the CRC in an
effort to legitimize their positions in an international arena that is
relatively unsophisticated and uncritical compared to traditional United
States scholarly and legal forums.
To realize the significance of the CRC's emphasis on child autonomy,
consider the distinction we have drawn elsewhere 58 between rights of
protection and rights of choice for children. With the exception of the
choice to have an abortion by an unmarried minor whom a judge has
determined to be sufficiently "mature," 59 virtually all of the United
States children's rights cases of the past generation have been concerned
not with children's rights of autonomous personal choice, but with their
6°
rights to protection.
by adults, although it is generally recognized that children do not have the right to vote." Sharon
Derrick, Compilation of theTravaux Preparatoires,in THE UNITED NATIONS CONVENTION ON THE
RIGHTS OF THE CHILD: A GUIDE TO THE "TRAVAUX PREPARATOIRES" 31, 233 (Sharon Detrick
ed., 1992). Compare this equating of children's rights and adult's rights with the language used
by earlier United States advocates of children's liberation, supra notes 21-22, and with Justice
Powell's contrary observation in 1979 that "the constitutional rights of children cannot be equated
with those of adults." Bellotti v. Baird, 443 U.S. 622, 633 (1979).
Contemporaneous notes on the Working Group's discussion of this U.S. proposal state: "The
idea of including civil and political rights in the draft convention to reinforce the protection of
children was strongly supported by several participants. However, the legitimate rights of parents
and tutors should be safeguarded, the balance between rights of children and rights of the family
should be preserved and the wording of the article should be in line with the Covenants.
"The view was expressed that, if parents should be protected from States, the child should be
protected from parents." Derrick, supraat 233-34. Compare this language with the U.N.'s later
published statement that the CRC "offers a new concept of separate rights for children with the
Government accepting the responsibility of protecting the child from the power of parents."
UNITED NATIONS 1994/95 PUBLICATIONS CATALOGUE at 64.
55. See supra part I.A.
56. See infra part II.B.
57. See infra note 94.
58. Bruce C. Hafen, Children's Liberation and the New Egalitarianism:Some RescrVations About
Abandoning Youth to Their 'Rights', 1976 B.YU. L. REV. 605, 644-51 [hereinafter Hafen, Childrn's
Liberation]; see also Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual
Privaoy-Balancingthe Individualand Social Interests, 81 MIcH. L. REv. 463, 513 (1983) [herein-
after Hafen, The ConstitutionalStatus of Marriage].
59. See infra note 132 and accompanying text.
60. In one of the few cases outside the United States to have recognized children's choice
Protection rights, which do not depend on any minimum level of

capacity, include such safeguards as rights to property, rights to physi-
cal care and security, and rights to procedural due process. For example,
recently increased procedural protections for United States children in
juvenile courts, schools, and other settings are typically designed not
to increase children's personal choices, but to protect children against
the abuse of unchecked adult discretion. Children's relative lack of
adult-level capacity enhances the need for such protections.
Choice rights, on the other hand, grant individuals the authority to
make affirmative and legally binding decisions, such as voting, marry-
ing, making contracts, exercising religious preferences, or choosing
whether and how to be educated. The very concept of minority status,
reflected in statutes in every United States jurisdiction, denies under-
age children independent choices on such matters. This denial is not
a way of discriminating against children, but is a way ofprotecting them,
and society, from the long-term consequences of a child's immature
choices and from exploitation by those who would take advantage of
a child's unique vulnerability. To confer the full range of choice rights
on a child is also to confer the burdens and responsibilities of'adult
legal status, which necessarily removes the protection rights of child-
hood. "One cannot have the freedom to live where and as one chooses
and still demand parental support; one may not deliberately enter into
contracts and yet insist that they be voidable" for lack of contractual
61
capacity.
B. Autonomy and Civil Rights for Children in the CRC
1. Intervention Standards
Against this background, we consider some of the CRC's novel
provisions. 62 One of these is an arguably new standard for state inter-
rights, the House of Lords in 1985 upheld the right of a child under the age of 16 to obtain
confidential medical advice regarding contraception, contrary to the wishes of her parents, so long
as the child has "sufficient understanding and intelligence." Gillick v. West Norfolk and Wisbech
Area Health Auth., 3 All. E. R. 402, 409-10 (H.L. 1985). Lord Fraser noted that while the age
of maturity is 18 under the laws of the United Kingdom, the age of maturity prior to that time
is "a dwindling right which the courts will hesitate to enforce against the wishes of the child
[and the more so] the older he is. Itstarts with a right of control and ends with little more than
advice." Id. at 412.
61. Hafen, The Constitutional Status of Marriage,supra note 58, at 513.
62. The list of issues we have selected for discussion in this section have some similarity to
what Cynthia Price Cohen considers the Convention's "four major themes." Cohen, supra note 51,
at 19. First, State Party compliance with all of the Convention articles should be measured by
"the 'best interests of the child' test. Id
Second, there is the repeated recognition of the child's "evolving capacities," ... which
forces a continuous balancing between the child's care and protection rights and the child's
individual personality rights. Third, there is the overarching theme of non-discrimination,
HarvardInternationalLaw Journal / Vol 37
vention in intact families. Among the fundamental axioms of United

States law is the doctrine that the parent-child relationship antedates
the state just as natural individual rights antedate the state in the
Constitution's political theory. Parents are not trustees who receive
authority to rear their children through delegations of state power over
children. Rather, as the Supreme Court held in distinguishing biologi-
cal parents from foster parents, the natural parent-child tie is "a
relationship having its origins entirely apart from the power of the
State," while a foster placement arranged by state agents "has its source
in state law and contractual arrangements." 63 Because of this principle,
the Court has said, "Ithe child is not the mere creature of the State,"64
and the democratic structure, partly in order to limit state power,
presupposes a system of family units, not just a mass of isolated
individuals who all stand in the same relationship to the state.65
State agents have thus never had the authority to intervene in the
child-parent relationship until they establish state jurisdiction through
such formal proceedings as divorce-related custody issues; adoptions;
findings of serious parental unfitness, neglect, abuse, or abandonment;
or child misbehavior severe enough to require state intervention. The
empirical and philosophical difficulties of determining when family
66
problems reach such jurisdictional thresholds are legion.
Article 9 of the CRC provides that children may be separated from
parents when "such separation is necessary for the best interests of the
child. '67 This article does provide that such determinations may be
made only by "competent authorities subject to judicial review" and
"in accordance with applicable law and procedures," but its language
sounds more procedural than substantive. 68 Article 18 adds that while
including discrimination based on gender ....Finally, the entire purpose and structure of
the Convention is illustrated by the recurring phrase "respect for the child's human dignity."
Id.
63. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S, 816, 845
(1977).
64. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
65. Hafen, The Constitutional Status of Marriage,supra note 58, at 479-84.
66. E.g., IJA-ABA Joint Commission on Juvenile Justice Standards, Standards Relating to
Abuse and Neglect 1-2 (1981); JOSEPH GOLDSTEIN ET AL., BEFORE THE BEST INTERESTS OF
THE CHILD (1979); JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD
(1973); LAURENcE D. HOULGATE, THE CHILD & THE STATE: A NORMATIVE THEORY OF
JUVENILE RIGHTS 130-34 (1980); Martin Guggenheim, The Right to beRepresented butNot Heard
Reflecting on the Legal Representation of Children, 59 N.Y.U. L. REv. 76, 109-17 (1984); Martha
Minow, Beyond State Intervention in the Family: For Baby Jane Doe, 18 U. MICH. J.L REF. 933
(1985); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L REF. 835
(1985); Michael Wald, State Intervention on Behalf of 'Neglected' Children: A Searth for Rcalistfi
Standards, 27 STAN. L. REV. 985 (1975); Barbara A. Sarrantonio, Comment, State Intervention in
ParentalRights: Standardsfor a No-Win Situation, 16 CONN. L. REw.541, 566 (1984).
67. CRC, supra note 1, art. 9, at 168.
68. Id.
"parents ...have the primary responsibility for the upbringing and

development of the child," the "best interests of the child will be [the
parents'] basic concern." 69 And article 3 provides that "[iln all actions
concerning children . . . the best interests of the child shall be a
primary consideration." 70 Does this language mean that any parental
care that falls short of serving the child's "best interests" is sufficiently
flawed to trigger intervention? Given the CRC'S emphasis on consid-
ering children's own views of their interests, 71 could a child trigger
state intervention merely by requesting state review of the "reasonable-
ness" of parental conduct compared to the child's view of his or her
best interests?7 2 With United States experience showing that the best
69. Id. art. 18, at 169.

70. Id. art. 3, at 167.
71. Article 12 assures children the right to express views on any matter affecting the child if
the "child is capable of forming his or her own views," with the expectation that these views will
be considered "in accordance with the age 'and maturity of the child." Id. art. 12, at 168. Most
United States jurisdictions provide that child custody decisions should consider the preferences
of children above a given age, an approach that invites decisionmakers to balance, as article 12
apparently does, a child's wishes against that same child's best interests. At the same time, the
Convention's autonomy flavor could nudge unsophisticated adults to give undue weight to a
child's desires. Parenthood has taught both of us that children, even at very young ages, have no
difficulty "forming their own views," but children having little idea of their own long-term
interests may well express views that are inconsistent with reality or their own interests. Indeed,
one co-author hereby acknowledges having expressed just such views to the other co-author in
decades now gone by.
Peter Newell, an advocate of the CRC in the United Kingdom, believes that the right granted
by article 12 "[tro express views freely in 'all matters affecting the child' and to have them taken
seriously" applies "as much within the family as it does outside it-in schools and other
institutions, in relationships with other adults, services etc." Peter Newell, Children's Civil Rights
in the Family 6 (unpublished manuscript, on file with Bruce C. Hafen). While this principle does
"not add up to a right to self-determination for children," it does imply "active participation."
Id. at 7. And "the acknowledgement of 'evolving capacity' implies increasing decision-making
power" for children as part of the establishment of "a democratic, participative model for family
life." Id.
This feature of the CRC drew on the experience of some Scandinavian countries. For example,
Norway's 1981 Children's Act requires that "as the child gradually develops and matures, the
parents shall hear the child's opinion before making decisions on personal matters affecting the
child .... Considerable weight shall be given to the child's wishes." Id. at 8. The 1983 Child
Custody and Rights of Access Act in Finland provides that:
tr]he objects of custody are to ensure the well-being and the well-balanced development of
a child according to his individual needs and wishes .... A child should ... receive an
education that corresponds to his wishes, inclinations and talents. A child shall be brought
up in the spirit of understanding, security and love. He shall not be subdued, corporally
punished or otherwise humiliated .... Before a custodian makes a decision on a matter
relating to the person of the child he shall, where possible, discuss the matter with the child
taking into the account the child's age and maturity and the nature of the matter. In making
the decision the custodian shall give due consideration to the child's feelings, opinions and
wishes.
Id. at 2-3, 7-8. This statute was drafted by Matti Savolainen, an official in the Finnish Ministry
of Justice, who was also a member of the drafting group for the CRC.
72. For such a case, see In re Snyder, 532 P.2d 278 (Wash. 1975). For a more recent and
well-publicized case in which a similar action was eventually dismissed, see Kingsley v. Kingsley,
interests standard is indeterminate and very difficult to apply even

73
when custody disputes or parental failure trigger state jurisdiction,
what guidance would judges have in such cases to determine either
reasonableness or a child's best interests?
Some American proponents of the CRC note that its "best interests"
language applies only in a secondary way to child placement; that is,
only when custody is already in issue or neglect has been established
would a judge unavoidably face placement options. 74 Others, however,
see the CRC's best interests standard as a primary jurisdictional test.
Two Australian lawyers, for example, believe that under the CRC,
parental childrearing rights are "subject to external scrutiny" and "may
be overridden" when "the parents are not acting in the best interests of the
child, or where the parents are unreasonably attempting to impose their
views upon mature minors who have the capacity to make their own
decisions." 75 This interpretation is consistent with the CRCs apparent
intent to place children and parents on the same plane as co-autono-
mous persons in their relationship with the state. To the extent that
the CRC encourages such interpretations, its ambiguity, or its con-
scious design, risks creating a new and lower threshold for state inter-
vention in intact families.
2. Subjective vs. Age-Based Determinations of Capacity

Current United States law uses an objective measure, the child's age,
as a surrogate for determining a child's capacity to make legally sig-
nificant choices. Age limits serve as the gateway to a wide variety of
activities, including rights to vote, consent to medical treatment, drive
motor vehicles, marry, consume alcohol, use tobacco, and purchase
pornographic material. Justice Stevens once observed that such legis-
lation uses "chronological age" to "protect minors from the conse-
quences of decisions they are not yet prepared to make," even though
"it is perfectly obvious that such a yardstick is imprecise and perhaps
76
even unjust in particular cases."
623 So.2d 780 (Fla. Dist. Cr. App. 1993) (holding that the child's minority status prevented him
from petitioning for termination of his mother's parental rights).
73. See, eg., David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce,
83 MICH. L. R-v. 477 (1984); Wendy A. Fitzgerald, Maturity, Difference, and Mlystery: Children's
Perspectives and the Law, 36 Amiz. L. REV. 11, 53-65 (1994) (forcefully contending that inherent
biases prevent judges from objectively or consistently applying the "best
interests" test).
74. Jane Ellis, The Best Interests of the Child, in CHILDREN'S RIGHTS IN AMERICA, supra note
2, at 3, 6-7; see also John E.B. Myers, The Child,the Parent,and the State, in CHILDREN'S RIGHTS
IN AmERICA, supra note 2, at 87, 98.
75. Margaret Orlowski & B. Martin Tsamenyi, Parental Authority and the United Nations
Convention on theRights of the Child- Are the FearsJustified? 6 AUSTRALIAN J. FA.. L. 137, 144
(1992) (emphasis added).
76. Planned Parenthood v. Danforth, 428 U.S. 52, 104-05 (1976) (Stevens, J., dissenting in
part). Similarly, advocating the right of legislatures to determine the minimum age for capital
Some courts in recent years have experimented modestly with legal

doctrines designed to reduce the power of objective, legislative clas-
sifications and to increase subjective reviews of individual merits.77
Individualized determinations do appear to offer greater .fairness, but
that promise can be more than offset by the inherent lack of reasoned
generality, and, hence, the lack of neutrality, in subjective decisions.
Therefore, despite some increased judicial openness to individual vari-
ations, objective categories like marriage and minority status remain
78
as fixed stars in United States jurisprudence.
The most ardent advocates of child autonomy have still argued, if
not for the removal of minority status altogether,7 9 that children should
be presumed capable of legally binding action until an individualized
determination shows they lack capacity.8 0 The experience of United
States courts, however, reveals that customized findings of maturity are
in practice not very workable. Some states, for example, allow a "ma-
ture minor" woman to make an abortion decision, if a judge finds her
sufficiently mature.8 ' Absent a finding of maturity, the judge must
determine whether the abortion is in the pregnant minor's best inter-
est. A field study of 1300 minors who applied for abortions under such
rules in Massachusetts found that, eventually, all 1300 received abor-
tions. This outcome evidently resulted from the unwillingness of judges
to substitute their judgment for the actual preference of8an 2
expectant
teenager, regardless of her age or psychological maturity.
Rejecting age-based classifications also undermines the parental role,
because it shifts to some presumably "objective" person, like a judge,
the task of determining maturity, which is, in effect, the parent-like
task of supervising a child's choices.8 3 Unless the parents of such a child
punishment, Justice O'Connor said, "Legislatures recognize the relative immaturity of adolescents,
and we have often permitted them to define age-based classes that take account of this qualitative
difference between juveniles and adults." Thompson v. Oklahoma, 487 U.S. 815, 853 (1988)
.(O'Connor, J.,concurring).
77. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 657-58 (1974) (Rehnquist, J., dissent-
ing).
78. See Hafen, The ConstitutionalStatus of Marriage,supra note 58, at 484-91.
79. See Manahan, supra note 23.
80. See sources cited supra note 24; see also Bob Franklin, Introduction to THE RiGHTS OF
CHILDREN 1, 7 (Bob Franklin ed.) (1986); Patricia Wald, Making Sense Out of the Rights of Youth,
55 CHILD WELFARE 379, 389 (1976).
81. MNOOKIN,supra note 32, at 149-264.
82. See Hafen, supra note 42, at 442; see also Katherine M. Waters, Note, Judicial Consent to
Abort: Assessing a Minor's Maturity, 54 GEO. WASH. L. REV. 90, 101 n.62 (1985) (Because capacity
determinations "require more time and contact with a minor than a judge can reasonably devote,
judges may not be the most appropriate persons to assess a minor's maturity."). For a comment
on problems relating to consent for medical treatment given to "mature minors," see Hafen, The
ConstitutionalStatua of Marriage,supra note 58, at 515 n.238.
83. Joseph Goldstein, Medical Care for the Child at Risk: On State Supervision of Parental
Autonomy, 86 YALE LJ. 645, 662-63 (1977) ("The right to partial emancipation should not rest
on satisfying, on a case-by-case basis, some body of wise persons that the particular child is
'mature enough' to choose or that the particular child's choice is 'right.' To introduce such a
Harvard InternationalLaw Journal / Vol. 37
are demonstrably unfit, long established United States juvenile law

principles would prohibit shifting the basic parental role to other
persons. Moreover, because judges hardly know the children whose
maturity they must judge, or because "maturity" as a concept is
hopelessly complex and subjective, or because so many choices ate (as
with abortion) laden with heavy personal value preferences, judicial
4
supervision can abandon children to their immaturity8
Nonetheless, the CRC would grant children the right to make
choices according to "the evolving capacities" of the individual child.
The general rule favoring parental rights in article 5 limits parental
prerogatives to "a manner consistent with the evolving capacities of
the child."'85 Similarly, article 12 assures children the right to express
their views and asks that those views be "given due weight in accord-
ance with the age and maturity of the child." 86 Article 14 respects
parents' rights in the sensitive area of directing the religious upbring-
ing of their children, but again only "in a manner consistent with the
evolving capacities of the child. '87 Paradoxically, the CRC takes this
position on choice rights despite its preference for age-based classifica-
tions in dealing with children's violations of penal laws. 88
A developmental approach to children's activity is vital to the proc-
ess of teaching them both maturity and responsibility.89 But it is
unclear from the CRC's language whether it advocates the formal
removal of age-based classifications or whether it simply urges that
decisionmakers consider the feelings and desires of children in legally
unenforceable ways. 90 That very lack of clarity creates risks of misun-
derstanding for readers who have little knowledge of the legal and
psychological context of the CRC'S language.
For instance, one psychologist who supports the CRC believes that
"the American legal system has come to regard children as neither
subjective process for decision would nor be to emancipate the child but rather to transfer to the
state the parental control and responsibility for determining when to consult and abide by the
child's choice.").
84. Willard Gaylin, The Competence ofChildren: No Longer All or None, HASTINGS CENTER Rn'.,
Apr. 1982, at 33. ("It is easy to tell when an individual is eighteen; it is hard to know when an
individual is mature."); Waters, supra note 69 (judges are not capable of consistently and
reasonably applying the "mature minor" standard set forth in Bellotti v. Baird).
86. Id. art. 12, at 168.
87. Id. art. 14, at 168.
88. Id. art. 40(3Xa), at 171. (providing that States Parties shall establish "a minimum age
below which children shall be presumed not to have the capacity to infringe the penal law").
89. ZMBING, supra note 38.
90. One psychologist believes that the CRC's language simply "calls upon nations to approach
children developmentally," encouraging parents and professionals to consider "the child's matur-
ing capacities" as "the principal criterion for determining appropriate education, therapy, and
support." James Garbarino, The Child's Evolving Capacities, in CHILDREN'S RIGHTS IN AMIRRCA,
supra note 2, at 19.
automatically competent nor incompetent." 91 But whatever the mean-

ing of psychological competence, "legal competence" is a well-estab-
lished concept in United States law for children as well as for the
elderly, the infirm, and the mentally disabled. This concept determines
children's legal competence on the basis of age. Therefore, in the
United States, the CRC'S developmental language can only reflect
perfectly desirable psychological aspirations that do not (and, like 92
hopeful but unenforceable expressions of a child's "right" to be loved,
cannot) mirror legal reality.
3. "Civil Rights" for Children

The CRC's model of child autonomy finds its clearest expression in
articles 13 through 16, its "civil rights" provisions. "Nowhere in the
Convention is ...the 'autonomous' view of rights more evident" than
in these four articles. 93 Although the language of these articles departs
from United States law in several significant ways, some CRC advocates
describe the articles as originating in U.S. legal concepts. 94 These ideas
may generally echo distinctive United States approaches to individual
rights, especially when compared with earlier United Nations state-
ments about children. It is inaccurate, ' however, to imply that the new
and provocative personal autonomy dimensions of the CRC are consis-
tent with the way current United States law applies to children.
a. Free Speech and Association

Article 13 grants children "the right to freedom of expression, including
the right to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers ...through any media of the child's choice." 95 This
broad free speech grant is subject only to restrictions that are "provided
by law and are necessary to respect the rights or reputations of others"
96
or to protect public security, order, health, or morals.
91. Id.
92. Henry Foster & Doris Freed, A Bill of Rights for Children, 6 FAm. I.Q. 343, 347 (1972).
93. Shepherd, supra note 12, at 135.
94. The Convention is "more consistent [than earlier U.N. pronouncements about children]
with the concept of 'individual rights' as developed in twentieth century constitutional law in
the United States." Id. Its "'autonomous' view of children's rights," which goes beyond the
protection-oriented view of children found in earlier U.N. statements, emphasizes "those [adult-
like] choice and liberty interests" that are "highly demonstrative of a more American view of
rights than traditionally have been found in other international documents, with a focus on the
rights of individuals rather than groups." Id. at 145. Cynthia Price Cohen describes the book
from which Professor Shepherd's language is quoted as concluding "that for the most part United
States law, both state and federal, is already in compliance with the Convention's standards."
Cohen & Miljeteig-Olssen, Status Report, supra note 53, at 367, 380.
96. Id.
The CRC's proponents point out that article 13 reflects the breadth
of Supreme Court rulings about student rights in the 1960s, notably
Tinker v. Des Moines School District,which protected the symbolic speech
of public school students who wore black armbands to protest the
Vietnam Wary7 What they fail to add is that in 1986 and 1988, before
the United Nations adopted the CRC in 1989, the Court substantially
clarified and limited its earlier rulings, overturning broad interpreta-
tions of Tinker in lower courts. In Fraserv. Bethel School District98 and
Hazelwood School Districtv. Kuhlmeier,99 the Court firmly upheld a public
high school's right to control not only the curriculum, but also the
extracurriculum, including the content of student newspapers and
speeches in school assemblies. Also, the Court last term reaffirmed
Hazelwood's extensive restatement of students' rights law, upholding a
school's authority to conduct random drug tests on student athletes in
the absence of individualized probable cause or even suspicion.100 If
article 13's provisions were taken literally in United States schools,
teachers and administrators would have difficulty managing core edu-
cational content, let alone the larger school environment. Yet, because
the CRC was adopted after the Supreme Court had decided both Fraser
and Hazelwood, we can only conclude that its drafters consciously
rejected the legal and educational policy choices those decisions repre-
sented. These examples further illustrate the CRC's departure from
United States law.
Even Board of Education, Island Trees Union Free School DistrictNo. 26
v. Pico, the only Supreme Court case to acknowledge students' "right
to receive information," recognized the discretionary role of school
officials to determine a school's curriculum and to make initial selec-
tions of library books as well as textbooks.10 ' Perhaps by oversight,
since it does not speak of educational institutions, article 13 makes no
such allowance for schools. Thus, the article seems to support a child
autonomy model of education that, like the early readings of Tinker by
some scholars and lower courts, is fundamentally skeptical toward
institutional authority in schools. Not only does the Supreme Court
not share that skepticism; the Court for at least the last decade has
seen public schools in an in loco parentis role, reinforcing the schools'
vital institutional authority in teaching students the attitudes and
02
skills required for both meaningful self-expression and citizenship. 1
97. 393 U.S. 503 (1969); Shepherd, supra note 12, at 136-37.
98. 478 U.S. 675 (1986).
99. 484 U.S. 260 (1988).
100. Vernonia Sch. Dist. 47J v. Acton, 115 S.Ct. 2386 (1995).
101. Board of Educ., Island Trees Union Free Sch. Disc. No. 26 v. Pico, 457 U.S. 853, 869
(1982).
102. SeeBruce C. Hafen, Hazelwood School District and the Role of First Amendment Institutions,
Articles 28 and 29 do urge participating countries to provide "com-

pulsory" education that will develop "the child's personality, talents
and mental and physical abilities to their fullest potential." 10 3 Educa-
tional development of this kind nurtures students' abilities to express
themselves and ultimately teaches students the skills that create a
general capacity for autonomous action. But this "compulsory" model
of education appears to contradict the free spirit of the other civil rights
articles, requiring the reader to reconcile the competing values. The
CRC might have itself attempted such reconciliation-which would
have forced the drafters to work through their own philosophical
ambivalence.
Article 13's language about receiving "information-and ideas of all
kinds, regardless of frontiers" through "the media of the child's choice"
also fails, except in a vague reference to "public health or morals," to
recognize the risks of obscenity and pornography, to children. 10 4 The
Supreme Court has denounced the destructive nature of child pornog-
raphy, 1°5 and it has upheld state laws restricting the sale of porno-
graphic material to minors under age sixteen. 10 6 The CRC does ask in
article 17 for participating countries to provide media guidelines that
protect children from "injurious" material, and it opposes sexual abuse
in article 19.107 But the language of article 13 is written with such an
unrestrained spirit that its relationship to these other articles is an-
clear.108
Article 15 ensures children the right of association and peaceful
assembly, subject to soft limits similar to those used in article 13.109
The advocates of article 15 are unable to assert that it is consistent
with United States law, given the Supreme Court's opinion in City of
Dallas v. Stenglin," 0 which generally sustains the concept of curfew
ordinances. In Stenglin, the Court rejected minors' freedom of associa-
Authority:
1988 DuKE LJ. 685; Bruce C. Hafen, Developing Student Expression Through Institutional
48 OHIO ST.L.J. 663 (1987); seealso Hafen & Hafen, supra
Public Schools as Mediating Structures,
note 35.
103. CRC, supra note 1, arts. 28-29, at 170.
104. Id. art. 13, at 168.
105. New York v. Ferber, 458 U.S. 747 (1982).
106. Ginsberg v. New York, 390 U.S. 629 (1968).
107. CRC, supra note 1, arts. 17, 19, at 168, 169.
108. Some family law experts from Germany, where pornography is widely available through
public media, have been particularly outspoken in criticizing article 13, both during and since
the Convention's drafting. One German delegate to the Convention thought the article granted
children unlimited access to available television programming, making parental supervision of
children's viewing a violation of international law. Another German observer said of article 13,
"Surely such nonsense has rarely been written or even conceived." Hans A. St6cker, Die UNO-
Kinderkonvention unddas deutsche Familienrecht,39 ZEITSCHRUFr FUR DAS GESAMTE FAMILUENRECHT
245, 247 (1992) (our translation).
109. CRC, supra note 1,art. 15, at 168.
110. 490 U.S. 19 (1989).
tion claims in upholding a local ordinance that prevented young people

between age 14 and age 17 from mixing with older persons in dance
halls.111 Rather than attacking this precedent directly, CRC proponents
argue that article 15 simply extends to groups those rights of expres-
sion granted to individual children by article 13.112
b. Religion
Article 14 affirms "the right of the child to freedom of thought,
conscience and religion." 113 It respects parents' "rights and duties" to
"provide direction" in this realm, but only "to the child in the exercise
of his or her right in a manner consistent with the evolving capacities
of the child." 114 In this instance, as arguably in general under article
5, the parental rights recognized by the CRC apparently extend only
to giving parents a role in enforcing the rights the CRC grants to the
child, without recognizing an independent parental right. This approach
illustrates the tendency of the CRC's autonomy model to view patents
as trustees of the state who have only such authority and discretion as
the state may grant in order to protect the child's independent rights."'5
Rather than reflecting United States law, this article seems to reject
the Supreme Court's general recognition that parental interests are
independent from, not derived from, the state.' 1 6 More precisely, article
14 apparently rejects the Court's longstanding position that parents
have their own constitutional right to rear their children within the
parents' religious tradition.1l 7 In Yoder v. Wisconsin, the Court affirmed
this element of parents' "liberty" in broad terms, citing an earlier case
that upheld parents' rights to send their children to parochial schools
as "a charter of the rights of parents to direct the religious upbringing
of their children."118 But article 14 prefers Justice Douglas's dissent in
111. Id. In Bush v. Dassel-Cokato Board ofEduc., 745 F. Supp. 562 (D. Minn. 1990), the court
extended the Supreme Court's student speech ruling in Hazdwood Scb. Dist. v. Kuhlmeler, 484 U.S.
260 (1988), to the First Amendment's right to freedom of association. Bsh suggests that
educational administrators, when acting in furtherance of legitimate educational objectives, may
restrict many facets of a student's "autonomy." Id. See also Hafen & Hafen, supra note 35.
112. E.g., Shepherd, supra note 12, at 141-43.
114. Id.
115. See supra part II.B.1.
116. See supra text accompanying notes 63-64.
117. In the opinion of a British supporter of the CRC,
Respect fbr evolving capacity surely means that there should nor, for example, be a continuing
assumption that the child has the same religion as his or her parents. Article 12 demands
respect for the views of the child once capable of expressing them; Article 14 suggests that
children should acquire the ability to choose their own religion with increased capacity ....
It is important that children should have the freedom to "escape" from their parents' religion
and culture, and also from those of the state in which they find themselves.
Peter Newell, supra note 71, at 12.
118. 406 U.S. 205, 233 (1972) (citing Pierce v. Society of Sisters, 268 U.S. 510 (1925)). For
the Yoder case. Even though the record contained no evidence that the
Yoder children rejected their parents' direction, Douglas believed that
the majority opinion risked imposing the religious views of Amish
parents on their children by allowing the parents to keep their children
temporarily out of public schools against the children's will: "It is the
student's judgment, not his parents', that is essential if ... [students
are] to be masters of their own destiny."119 The majority directly
refuted Douglas' autonomy-based position,1 20 but the Douglas
121
view has
since been widely quoted by child autonomy advocates.
CRC proponents describe the Douglas dissent, which cited well-
known psychological literature on child development, as "laying
the groundwork for the Convention's explicit recognition that chil-
dren's civil rights . . . must be considered in light of [their] moral
and cognitive [development]."' 1 22 The CRC's emphasis on "the
evolving capacities of the child" in the religious context is strik-
ing, not only because it casts doubt on age-based classifications, but
because it does so in a context-religious liberty-in which United
States law has recognized parental prerogatives for a longer time and
in a more fully articulated form than virtually any other parental
interest.
c. Privacy
Article 16 establishes child privacy rights: "No child shall be subjected
to arbitrary or unlawful interference with his or her privacy, family,
home or correspondence."'1 23 This limited context confers little meaning
on "privacy," an unfortunate omission in light of the growing complexity
of privacy laws. Robert Shepherd believes article 16 grants children
the same "right to privacy" from which "the constitutional protections
for procreation and abortion decision-making has come." 124 In an open-
ended affirmation of autonomy principles, he regards this article as
conferring on children "'the right to be let alone,"' Justice Brandeis's
further discussion on the origin and nature of parental rights, see Hafen, Children's Liberation,
supra note 58, at 613-30.
119. Yoder, 406 U.S. at 245 (Douglas, J., dissenting).
120. "Our holding today in no degree depends on the assertion of the religious interest of the
child as contrasted with that of the parents." 406 U.S. at 230-31.
121. See, ag., David J. Anderman, Comment, Title III at a Crossroads: The Ordinary Course of
Business in the Home, the Consent of Children, and ParentalWiretapping, 141 U. PA. L. REv. 2261,
2292 n.138 (1993); Alison M. Brumley, Comment, ParentalControl of a Child's Right to Sue in
FederalCourt, 58 U. CHI. L. REv. 333, 345 (1991); Anne C. Dailey, ConstitutionalPrivacy and the
Just Family, 67 TuL.. L. Ray. 955, 992-93 (1993).
122. Shepherd, supra note 12, at 140. Oddly, however, the CRC'S affirmation of compulsory
school laws is not linked to the child's evolving capacities.
1934 phrase which now seems to capture the contemporary idea of

125
autonomous personhood.
This broad definition of privacy is problematic for children in schools
and families, because it makes little allowance either for children's
minority status or for the.role of adults who are unavoidably involved
in a child's private world. The Supreme Court has recently upheld the
right of a public school to conduct random urinalysis drug tests on
student athletes, in part because students have particularly limited
expectations of privacy. 126 Illustrating that the American children's
rights movement has not established adult-like rights of privacy and
autonomy for children, the Court stated, "Traditionally at common law,
and still today, unemancipated minors lack some of the most funda-
mental rights of self-determination .... 1 27 Moreover, public school
officials have a "custodial and tutelary" power that permits "a degree
128
of supervision and control that could not be exercised over free adults."'
Thus the "nature of (students' constitutional] rights is what is appro-
priate for children in schools."' 129
The notion that children may have "privacy rights" that protect
them against parental intrusion short of neglect or abuse is especially
difficult. In most contexts one could assume that assertions of a "right"
to privacy run only against the state. However, the CRC's apparent
intent to give "[glovernment the responsibility of protecting the child
from the power of parents"'130 naturally raises the question whether the
CRC's interest in Privacy rights for children also intends to limit
parental prerogatives.' 31
125. See supra note 14 and text accompanying notes 14-15.

126. Vernonia Sch. Dist. 47J v. Acton, 115 S.Ct. 2386 (1995).
127. Id at 2391.
128. Id at 2392.
129. Id.
130. UNITED NATIONS 1994/95 PUBLICATIONS CATALOGUE at 64.
131. After Austria had ratified the CRC in 1992, its government distributed a publication to
Austrian school children to inform them of their new rights. The booklet quotes selected sections
of the CRC and adds explanatory material and a few cartoons featuring a youngster who resembles
Bart Simpson (a popular U.S. cartoon character). In the section on privacy and free speech, entitled
"Say What You Think," the pamphlet states:
You are a free person. That means you may freely express your opinion. You are free to
hear your music, choose your books, play with the computer, and watch films. Your parents
are of course obligated to protect you from violence-glorifying films, books, videos, and
computer games that are not appropriate for someone your age. Conversely, your parents
must respect your private sphere: They may not read your personal records, diaries or letters.
RUTH FELDGRILL-ZANKEL, MEIN GUTES REcHT: DIE REcHTE DES KINDES, EINE INITIATIVE
DES BM FOR UMW.LT, JUGEND UND FAIUE MY GOOD RIGHT' THE RIGHTS OF THE CHILD,
AN INITIATIVE FROM THE MINISTRY OF ENVIRONMENT, YOUTH AND FAMIUES) 12 (1992) (our
translation). The cartoon that accompanies this paragraph shows a weeping mother, an irritated
father, and their Bart-like son looking away from them saying, "I only said what I think." Id at
13.
The Supreme Court has upheld constitutional privacy rights for

children in only two contexts, abortion and contraception. In a series
of cases beginning in 1976, the Court has recognized that, generally,
mature minors (with maturity being determined by a judge) may choose
abortions without parental consent, and that immature minors may have
abortions if a judge finds this choice to be in the pregnant minor's best
interests. 132 Yet, in the Court's most comprehensive analysis of minors'
choice rights within the abortion context, Justice Powell spoke not of
a "right of privacy," but of a specific "constitutional right to seek
abortion."'133 After explaining minors' "peculiar vulnerability" and their
I
"inability to make . . . mature [choices],""3 Powell explained how
abortion differs "in important ways from other decisions that may be
made during minority."135 This difference arises primarily from the
extraordinary circumstance that a pregnant minor is herself a prospec-
tive parent who would not require parental consent to place her child
for adoption. 136 Therefore, the rationale for abortion-related privacy has
no serious application to a minor's other choice rights and is a genuine
exceptio*n to the courts' recognition of parental authority in virtually
137
all other environments.
In 1977, in Carey v. Population Services Intl, the Court held that the
procreative dimension of the right of privacy prevents a state from
denying minors access to contraceptives. 38 The Court's purpose was
not to authorize a maturity-based "choice" right, but to protect im-
mature adolescents against the risks of pregnancy and venereal dis-
ease.' 39 Perhaps because of the Court's desire not to narrow adult
reproductive autonomy in the post-Roe v. Wade era, some dicta in
132. E.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990) (holding that a parental
notification requirement containing a judicial bypass option' was constitutional); Hodgson v.
Minnesota, 497 U.S. 417 (1990) (holding that a two-parent notification requirement without a
judicial bypass option was unconstitutional); Planned Parenthood of Kansas City, Missouri, Inc.
v. Ashcrofr, 462 U.S. 476 (1983) (upholding a parental consent requirement which contained a
judicial bypass option); H.L. v. Matheson, 450 U.S. 398 (1981) (holding a parental consent
requirement constitutional); Bellotti v. Baird II, 443 U.S. 622 (1979) (finding that a parental
consent requirement must contain a judicial bypass option); Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976) (invalidating a statute requiring parental consent
without providing a judicial bypass option).
133. Bellotti, 443 U.S. at 642.
134. Id. at 634.
135. Id. at 642.
136. Hafen, The ConstitutionalStatus of Marriage,supra note 58, at 515-16.
137. HYMAN RODMAN ET AL., THE SEXuAL RIGHTS OF ADOLESCENTS: COMPETENCE, VUL-
NERABILITY, AND PARENTAL CONTROL 59-76 (1984).
138. Carey v. Population Servs. Int'l, 431 U.S. 678 (1977).
139.
Carey... (seeks) to avoid harming kids in the name of helping them .... The sexually
active 15-year-old is given access to birth control not out of recognition of his or her mature
judgment. Indeed, the less equipped a particular individual is for the burdens of parenthood,
the stronger the argument against denying access to contraception when we cannot deny
Carey's majority opinion may have given some readers (including pro-
ponents of the CRC) 140 the erroneous impression that single adoles-
cents have a constitutionally protected "privacy" interest in choosing
to bear children outside marriage. That interpretation does not reflect
the Court's holding. It also runs counter to well-established United
States public policy interests in preventing teenage pregnancy, which
the Court recognized in 1988.141
For some advocates of adolescent choice, however, locating any chil-
dren's right within the modern concept of constitutional privacy im-
plies, even if the cases do not, that children may now make autono-
mous choices in any realm that is "private"-including sexual freedom.
Ironically, however, constitutional privacy in United States law actually
developed primarily to protect personal decisions regarding marriage
and kinship, not as a means of furthering the sexual revolution outside
marriage, whether for adults or for children. The Court has not ex-
tended constitutional "sexual rights" (as distinguished from the right
to abortion or contraception) to unmarried adults, let alone to chil-
142
dren.
Against this ambiguous background, a major risk of the CRC's
vague reference to privacy rights for children is that its language can
be construed to support sexual freedom for children. In fact, however,
one looks in vain for serious United States scholars or policymakers-
let alone courts or legislatures-who honestly believe it is wise for the
nation's adolescent population to be sexually active. Most pediatricians
have long agreed that "adolescent sexual activity is . . .unhealthy for
children-emotionally, psychologically, spiritually, and physically.""1' 3
Most contemporary debates over sex education and contraception poli-
cies for adolescents argue about the best means for preventing teen
pregnancy, not over the desirability of adolescent sex in general.
Nonetheless, policymaking in this area can be significantly impaired
by a growing reticence to interfere with society's new sense of respect
for personal autonomy. This risk is magnified by the claims of particu-
lar adult interest groups whose core policy interests move them to
resist any compromise with their commitments to unfettered auton-
accessto sex . . . .The civil right being vindicated is the right not to be gratuitously
harmed.
ZIMRING, supra note 38, at 62-63.
140. "The right to privacy [used in article 16 also protects other procreational choices" besides
abortion. Shepherd, supra note 12, at 144.
141. Bowen v. Kendrick, 487 U.S. 589 (1988).
142. See Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding a statute criminalizing consen-
sual sodomy). For a development of the rationale behind the conclusion stated in the text, see
Hafen, The ConstitutionalStatus of Marriage,supra note 58.
143. Henry J. Redd et al., Contraceptionand Adolescents: A Dissent, 21 CHILD & FA MILY 105,
106 (No. 2, 1990).
omy--even when those commitments are primarily associated with the

interests of adults, not those of children.
For example, contemporary models of medical counseling encourage
physicians to be nonjudgmental. Children who need to be immunized
or fitted for braces require parental consent, but advice related to sexual
experience is more protected, partly because pregnant minors require
special help, but also because sex seems closer to the core idea of
autonomy. Public school teachers and officials are increasingly reluctant
to describe adolescent sexual choices as right or wrong, both because
emerging models of sex education ask adults to "get real" in accepting
teen sex,144 and because of the growing cultural assumption that "chil-
dren are . . . capable of choosing their own morality as long as they
do not commit crimes."'145 Some lines of feminist thought have argued
that attempts to limit the sexual freedom of teenagers is but one more
form of female repression.1,4 6 And the commercially based determina-
tion of media and entertainment businesses to eliminate censorship has
led to public portrayals of adolescent lovemaking that were unthink-
able a generation ago-this despite the Supreme' Court's view that
preventing the "sexual exploitation . . . of children constitutes a gov-
4
ernment objective of surpassing importance.1 7
Within specific contexts, there are often understandable reasons why
various groups feel the need to defend their institutional positions
without compromise. But the aggregate effect of such attitudes is to
load the public policymaking apparatus with so many constraints that
children's needs for special forms of protection, education, and nurtur-
ing can simply be lost amid noisy and ironic claims about the impor-
tance of children's privacy and autonomy-claims that may be su-
perficial surrogates for more fundamental claims to adult autonomy or
to institutional profitability.
144. Barbara D. Whitehead, The Failure of Sex Education, ALAuc MONTHLY Oct. 1994, at
55, 80.
145. Gerald Grant, The Characterof Education and the Education of Characte, 18 AM. EDUc. 37,
44 (1982).
146. See, eg., Cheryl Dalby, Gender Bias Toward Status Offenders: A PaternalisticAgenda Carried
Out Through theJJDPA, 12 LAW & INEQ. J. 429 (1994) (arguing that statutory rape laws are a
societal attempt to "restrict female sexuality").
147. New York v. Ferber, 458 U.S. 747, 757 (1982).
C. GeneralLimitations in the CRC's Autonomy Model for Children's

Rights
1. Children's Rights and Adult Preferences-Autonomy in Whose

Interest?
In a general sense, the CRC's autonomy model ironically undermines
the very autonomy-building process of education and nurturing that
every child needs. A child is not "free" to play the piano just because
no physical force keeps her from walking to the piano bench. She will
achieve the freedom to make music only when she has developed the
capacity to obey the laws of music. Similarly, a child writing a paper
in a public school does not enjoy "freedom of expression" merely by
being left alone at his desk. He may be free of censorship, but freedom
of expression also means freedom for expression-having the capacity
for understanding and self-expression. If free speech is to be meaning-
ful, a citizen must not only be free to speak but should have something
worth saying, together with the maturity, insight, and skill needed to
say it intelligibly.
To develop the capacity for autonomous action, children must sub-
mit their freedom temporarily to the schoolmaster of education and
training, the developmental processes that create the tools and skills
that are essential for responsible and self-determined action. This edu-
cational relationship between child learners and adult parents or other
teachers is that of master-apprentice, not master-slave or even master-
servant. On the master or adult side of such apprenticeships, as the
Supreme Court recently observed, "the tutor or schoolmaster is the very
prototype of [parental] status,"1 48 a status that imposes not merely a
power of supervision and a duty to protect, but an affirmative respon-
sibility to teach and nurture a child's capacities toward mature powers.
Because both society and children have such a stake in the outcome of
this process, the Western liberal tradition has traditionally placed
parents (and those who otherwise act in parental/tutorial roles) under
a heavy obligation of both nature and law to help children attain
rational capacities--as John Locke wrote, "till... [their] understanding
49
be fit to take the government of [their] will."1
To serve the interests of both society and its children, therefore,
society has limited children's legal autonomy in the short-run precisely
in order to maximize their actual autonomy in the long-run-assum-
ing, of course, that adults shoulder the heavy task of teaching children
148. Vernonia Sch. Dist. 47J v. Acton, 115 8.Cr. 2386, 2391 (1995).
149. JOHN LOCKE, THE SECoND TREATISE OF GOVERNMENT § 59 (Thomas P. Peardon ed.,
Liberal Arcs Press 1952) (1690).
how to act freely and responsibly. This is obviously both a flexible and
a gradual process, successively adapting, customizing, and eventually
removing limits on children's freedom as they acquire the abilities that
characterize autonomous capacity.150 But in principle, short-term limits
on the freedom of the young are essential not only to develop children's
ability to function independently, but also to sustain in perpetuity the
social conditions that will continually regenerate autonomous capacity
in successive generations.
As the CRC illustrates, however, an increasing number of adults
prefer a short-range view of child autonomy that would liberate both
children and adults from the mutual yoke of tutorial responsibilities.
The emerging popular interest in greater freedom for children has
arisen from a variety of recent cultural and legal developments, one
theme of which is the simplistic but topical assumption that "kids are
people too."''1 1 Therefore society's modern tolerance for self-determined
lifestyle choices now urges us to stop judging and controlling children's
choices, just as American adults over the past generation have been
learning to be less judgmental and controlling toward one another. In
addition, a combination of judicially reduced discretion for adult care-
takers and our legal system's increased reliance on procedural protec-
tion for children 5 2 has sometimes created the illusion that, parents,
teachers, and other adults owe children only what the law procedurally
demands of them.
Within this general cultural context, we have recently "discovered
(accurately enough) that young people have their own perspectives and
values; but this valid insight has led us to defer to the views of the
young, to treat children's sensibilities gingerly, [even if we thereby]
153
allow young people to drift rudderless in a sea of moral confusion."
And some popular child care literature has recently begun to regard
absentee parenting as not only acceptable but as giving children who
engage in "'self care' advantages they do not enjoy in traditional,
stay-at-home parenting. 1 4 The core of these purported advantages is
that parents who "'turn their attention to taking care of themselves"'
first are better role models for their children, because these parents are
more likely to be "'happy and contented." '155 With these assumptions,
children may be "'better off alone." ' 15 6 Therefore, the growing assump-
150. See ZIMmING, supra note 38.

152. See supra text accompanying note 32.
153. WILLAM A. DAMON, GREATER EXPECTATIONS: OVERCOMING THE CULTURE OF INDUL-
GENCE IN AMERICA'S HOMES AND SCHOOLS 21 (1995).
154. Mary Eberstadt, Putting Children Last, COMMENTARY, May 1995, at 44, 48.
155. Id. at 49.
156. Id. at 48. Oddly, this literary and cultural phenomenon has arisen amid middle and upper
tion that children should enjoy more autonomy may be essentially the
default position that results from reducing our general sense of adult
responsibility for children.
The new adult willingness to defer to children's preferences has
occurred in the absence of empirical evidence demonstrating that to-
day's children actually possess greater capacity to assume the risks and
responsibilities of making autonomous choices. Moreover, no one has
yet shown that reducing the paternalistic direction adults have .tradi-
tionally given to children translates into greater benefits or greater
autonomous capacity for children, because children need protection
against their own immaturity as well as against exploitation by oth-
ers. 157 They also need affirmative tutoring that develops their intellec-
tual, psychological, and other capacities toward actual, independent
autonomy.
It is therefore natural to wonder whose interests are being served by
the resurgence of interest in liberation and autonomy for children
reflected in the CRC and in today's cultural echoes of CRC themes.
Some of the adults who want to liberate children seem motivated not
primarily by children's actual interests but by their own interests, some
ideological and some that merely serve adult convenience. Because the
tutorial yoke between adults and children is a mutual one, adults face
a beguiling conflict of interest in thinking about autonomy for chil-
dren. When they disengage from the arduous task of rearing and
teaching children in the purported name of increasing those children's
freedom, adults' actual-even if not fully conscious-purpose may be
to increase their own freedom by liberating themselves from the bur-
dens of providing meaningful education and child care. Worse yet,
some pro-child autonomy claims may be essentially a faqade intended
class parents just as a national consensus has also emerged that what "the children of the
underclass" most need is "parents." Id at 50.
157. Professor Coons put it this way:
Th[e] inescapable limit on children's freedom is not merely an artifact of politics, It is a
factof nature. Even if one held liberty to be the sole concern, there would remain a practical,
insuperable and permanent obstacle to liberation. Children are small, weak, and inexperi-
enced; adults are big, strong and initiated. One may liberate children from the law of man,
but the law of nature is beyond repeal. There is no way to send an eight-year-old out of the
sovereignty of the family and into the world of liberty. For he will be there introduced to
a new sovereignty of one kind or another.
It may be a regime of want, ignorance, and general oppression; it may be one of delightful
gratification. The ringmaster could be Fagin or Mary Poppins. Whatever the reality, it will
be created by people with more power and by the elements. Children-at lest [sic] small
children-will not be liberated; they will be dominated.
Coons, supra note 42, at 503. Other commentators, to varied extents, echo these words. See, e.g.,
Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts & Possibilities, 1 YALE J.L. & IMINISM
7, 8 (1989); Milton C. Regan, Market Discourse & Moral Neutrality in Divorce Law, 1994 UTAH
L. REv.605, 667-73.
to protect the interests of adults who profit from such claims while
indirectly exploiting the actual interests of children.
For example, Barbara Whitehead has documented a recent change
in Americans' view of adolescent sex. Adults once saw adolescence as
a time for nurturing their children toward responsible behavior, so they
urged teenagers to abstain due to the high risks of sexual experience.,
Adults felt responsible for teaching young people "the competencies
and credentials of adulthood before they took on the responsibilities of
... parenthood." 158 As an extension of adult society's own sexual
revolution, however, we have recently entered a new revolutionary
phase in which many adults assume that ever-younger adolescents are
presumptively autonomous and that enlightened parents should simply
provide their teenagers with unrestricted access to sexual experience
along with protection from the dangers of being sexually active. Yet
experience shows that this hypothesis seldom works in practice, 159 and
that the contemporary assumption that adolescents can handle sexual
autonomy responsibly is an illusion created as much by adult prefer-
ences as by adolescent hormones.
This interpretation is reinforced by the candid admission of a team
of prominent social scientists addressing the problem of teenage preg-
nancy. After describing nationally increasing rates of adolescent preg-
nancy in a major research report, these scholars offered their view about
the possibilities for reducing the rate of teenage pregnancy: "For our-
selves, we prefer to cope with the consequences of early sex as an aspect
of an emancipated society, rather than pay the social costs its elimina-
tion would exact."1 60 This view of adolescent autonomy serves adult
interests at the expense of adolescent interests.
The proliferation of emancipation statutes in the United States over
the last thirty years further illustrates the conflicting interests of adults
who would liberate their children. "Emancipation" is a process by
which the state bestows many aspects of legal adulthood on qualifying
children of minority age. Until the 1960s, emancipation decisions
generally remained within the exclusive province of judge-made com-
mon law. Such "judicial emancipations" were generally reserved for rare
instances in which resolution of an existing dispute turned on the legal
status of the parent-child relationship, such as in cases involving in-
6
trafamilial tort immunity or parental rights to a child's earnings.1 1
158. Whitehead, supra note 144, at 80.

159. Id. at 55-80.
160. MELVIN ZELNIK ET AL., SEX AND PREGNANCY IN ADOLESCENCE 182 (1981).
161. Sanford N. Katz et al, EmancipatingOur Children--Comingof Legal Age in America, 7 FAM.
L.Q. 211, 219-25 (1973). Professor Homer Clark has termed judicial emancipation a "peculiar
and, fortunately, unimportant corner of the law." HOMER CLARK, THE LAw oF DOMESTIC
RELATIONS IN THE UNITED STATEs § 9.3 (2d ed. 1987).
While common law prerequisites to judicial emancipation vary greatly

from state to state, as a general matter, at least the following circum-
stances must exist: (1) a proven ability of the child to live inde-
pendently; (2) a recognized interruption of parental control, such as
through independent residence, marriage, or entrance into military
service; and (3) parental acquiescence to the emancipation. 62 Thus, the
1 63
burden for establishing a common law emancipation is fairly high.
In an attempt to codify the requirements of judicial emancipation
or, in some cases, to make emancipation more accessible to minors,
some states have enacted emancipation statutes. 164 Unlike judicial eman-
cipation, however, statutory emancipation is intended to serve as "a
practical, easy means of promoting the interests of mature minors." 165
While judicial emancipation is traditionally reserved "for specific pur-
poses such as protecting a minor's wages from parents or establishing
a residence separate from parents, statutory emancipation achieves a
more comprehensive promotion into adulthood" by removing nearly
166
all aspects of minority status from qualifying minors.
167
Under California's Emancipation of Minors Act, for example, minors
aged 14 and older can terminate their minority status using a simple
procedure that usually takes less than a week to complete. 168 Early
162. Katz et al., supra note 161, at 219. For examples of courts granting judicial emancipation
on these bases, see Tencza v. Aetna Casualty & Sur. Co., 527 P.2d 97, 99 (Ariz. 1974) (inde-
pendent residence with parental consent sufficient to establish common law emancipation); Smith
v. Seibly, 431 P.2d 719, 723 (Wash. 1967) (marriage constitutes sufficient grounds for common
law emancipation).
163. Katz etal., supra note 161, at 217.
164. Such statutes have been adopted in approximately 20 states. Dana E Castle, Early
Emancipation Statutes: Should They Protect Parents as Well as Children?, 20 FArM.L.Q. 343, 358
(1986).
165. Carol Sanger & Eleanor Willemsen, Minor Changes: EmancipatingChildrenin Modern 7mes,
25 U. MICHi.J.L. REF. 239, 242 (1992). One commentator advocating more widespread use of
statutory emancipation has postulated that the failure of judicial emancipation to keep pace with
social changes, such as the deteriorating societal importance of the nuclear family, led to the
enactment of emancipation statutes. H. Jeffrey Gottesfeld, Comment, The Uncertain Status of the
Emancipated Minor: Why We Need a Uniform Statutory Emancipation of Minors Act (USEMA), 15
U.S.E L. REV. 473 (1981).
166. Sanger & Willemsen, supra note 165, at 245 (citing INSTITUTE OF JUDICIAL ADNIINI-
STRATION, AMERCAiN BAR ASS'N, JUVENILE JUSTICE STAND DISPROJECT 22 (1980)) (other
citations omitted). While certain restrictions remain inplace following emancipation, "[s]tatuto-
rily emancipated minors can sign binding contracts, own property, keep their earnings, and
disobey their parents." Id. at 240-41. According to Sanger & Willemsen, "[clourts have tradi-
tionally used the doctrine of emancipation not so much to bring about or verify a child's
independence, as to work around other legal doctrines in which minority [status] was an
impediment." Id at 251-52.
167. The Act "was the result of dissatisfaction felt by several San Francisco public interest
lawyers in the late 1970s over persistent and seemingly unnecessary problems faced by teenage
clients on account of their minority." Id. at 250-51. The Act, codified at Cal. Civ. Code §§ 60-68
(West 1982), was subsequently repealed and continued without substantial change in Cal. Fam.
Code §§ 7120-7123, 7140 (West 1994).
168. Sanger & Willemsen, supra note 165, at 244. Compared to traditional procedures that
reviews enthusiastically welcomed California's new emancipation stat-

69
ute, enacted in 1978, as a needed addition to the body of family law.1
In conducting a comprehensive empirical study of how the Act has
been applied in two northern California counties,170 however, Professors
Sanger and Willemsen discovered that the statute, rather than freeing
children from the "burdens of minority [status]," actually ended up
being used by children and parents to deal with "the complications of
modern life," often with unfortunate and perhaps unintended results. P1
Parents soon realized that under the statute they were no longer
responsible for financially supporting their child and also could not be
held vicariously liable for their child's conduct. 172 As a result, Sanger
and Willemsen's "findings reveal[ed] that while in some cases emanci-
pation provided independent teenagers with legal authority appropriate
to their life situations, in many others it was used by parents to end
responsibility for more ordinary teenagers who lacked the experience,
7 3
resources, or desire to live independently."'
alter the parent-child relationship, such as termination of parental rights or adoption proceedings,
Professors Sanger and Willemsen report that statutory emancipation "is a procedural snap.
Declarations of emancipations are obtained with stunning ease and speed; the ones we studied
typically took under a week from formal start to finish." Id at 247. In the two years of the study,
none of the 90 petitions filed in the two counties was denied. Id. at 305.
169. See, eg., Francis C. Cady, Emancipation of Minors, 12 CONN. L. REV. 62 (1979) (urging
other states to enact statutes similar to California's); Priscilla Brown, Note, The Emancipation of
Minors Act: A CaliforniaSolutionfor the Mature Minor, 12 U.C. DAVIS L. REv. 283 (1979). At least
one professor has suggested that such emancipation statutes be extended to allow parents as well
as children to unilaterally achieve a legal separation from their child under certain circumstances.
See Castle, supra note 164, at 372. Until 1989, Michigan's emancipation statute permitted parents
to do exactly that. Sanger & Willemsen, supra note 165, at 318 (Under Michigan's previous
emancipation statute, it was possible for "the parent of a teenager to walk into a county clerk's
office, sign a small piece of paper, and walk our with no further parental obligations to that
teenager. No judge or referee considers the implications of the action. No interview of the youth
in question occurs. Sometimes, the youth in question does not even know what occurred."
(quoting MICHIGAN RUNAWAY AND YOUTH SERVS., EMANCIPATION ISSUE INVITES CONFUSION'
2 (1988))). Under Connecticut's emancipation statute, either the parents or the child may petition
for emancipation. The court must then grant the emancipation if it finds that the emancipation
is "in the best interest of the minor, any child of the minor or the parents or guardian of the
minor." Conn. Gen. Stat. Ann. § 46b-150b(4) (West 1995).
170. Professors Sanger and Willemsen undertook their study of the Act after one of the authors
was told by a 50-year-old woman that "in order for her and her new husband to begin their
marriage without the complicating presence of stepchildren, they 'had to emancipate' their
sixteen-year-old daughter." Sanger & Willemsen, supra note 165, at 241.
171. Id. at 242, 290-95. See also Dalby, supra note 146, at 453-54 (noting that because of
disadvantages to the child, statutory emancipation should only be used as a last resort).
172. Sanger & Willemsen, supra note 165, at 241, 299. In this regard, statutory emancipation
departs from judicial emancipation, under which parents' obligations to financially support their
children does not necessarily end with emancipation. Id. at 253.
173. Id. at 242. Sanger and Willemsen summarized their study as follows:
The study suggests that at times emancipation may facilitate an abdication by parents of
caretaking responsibilities, an abandonment of sorts. Viewed this way, emancipation may
raise much the same concern more classical abandonment raised during the Middle Ages,
that "close attention must be paid ... to determine whether parents are forfeiting respon-
Especially troubling was Sanger and Willemsen's discovery that

some parents led their children to falsify emancipation petitions in
order to ensure that their children qualified for statutory emancipation.
For example, although California's statute requires a showing of inde-
pendence, such as a separate residence and adequate income, some
parents of emancipating children encouraged their children to move
out shortly before filing their emancipation petition or to lie about
their circumstances in order to comply with the statute's require-
174
ments.
Also troubling is that, in contrast to the traditional requirements of
judicial emancipation, California's statute does not require parental
acquiescence, although notice to the parents is required. 17 ' The law
makes clear that statutory emancipation is a right to be exclusively
exercised by the child, even though the court often conducts "no
significant investigation of the minors' living circumstances or best
interests" before granting the emancipation petition. 176 Such a result
is particularly ironic in light of the traditional presumption that mi-
nors should not enter into binding contracts because of their judg-
mental incapacity and susceptibility to external influence.' 77 As one
California appellate court wrote in invalidating an emancipation agree-
ment between a boy and his mother: "'The limitations upon the
minor's right to make binding contracts with strangers emphasize the
sibility for a child or simply forwarding a young person to the next stage of life according
to contemporary expectations."
Id. at 247-48 (quoting JOHN BOSWELL, THE KINDNESS OF STRANGERS 35 (1988)). This reflects
data recorded by social scientists, which indicates "a trend beginning in the 1960s in parental
value preferences away from obedience and conformity in their children and toward autonomy
and self-direction." Id. at 312 (citing Duane Alwin, Changes in Qualities Valued in Childrn in the
UnitedStater 1964-1984, 18 Soc. Sc. REs. 195, 203-14 (1989)).
174. Id. at 280-85, 298. In one instance, a father paid his son $50 "for being good in court"
after the son falsely told the judge that he was supporting himself financially, when in reality his
father had been sending him money each month. Id at 287.
175. Id. at 261. If parents do acquiesce, a hearing to determine whether the emancipation
would be in the best interests of the child is not required. CAL. FmAf. CODE ANN. § 7121(c)
(West 1994); Sanger & Willemsen, supra note 165, at 247. Even where such hearings did occur,
"exchange between the minor and the judge was minimal at best." Id Of the emancipations
studied by Sanger & Willemsen, nearly all were supported by the parents. In three instances,
minors from stable homes with loving parents and only insignificant parent-child conflicts had
to "cajole" their reluctant parents into signing the emancipation petition in order to avoid the
"best interests" hearing. Id. at 287. In one of those three cases, a high school guidance counselor
erroneously told a student that emancipation would qualify her for college loans regardless of
parental income. Id.
176. Id. at 297.
177. Moreover, due to their minority status and presumed lack of capacity, children are not
permitted to initiate a judicial emancipation proceeding. In sharp contrast to such restrictions,
in order to effectuate a statutory emancipation, a minor must fill out the emancipation petition,
by writing her name, address, county, and the date she began living in the country. The rest of
the form, except for the signatures of the child and parent(s), is filled out by checking boxes. Id,
at 262-63.
illogic of a rule that he may bind himself by a contractual release of

his parent, the person most likely to have a strong influence upon
178
him."'
Sanger & Willemsen found that "[1]ife after emancipation is often
precarious and lonely, and the decision to become emancipated is
regarded with ambivalence." 179 While statutory emancipation effects a
"near overnight legal transformation of minor to adult," 180 emancipated
children were rarely prepared for the adult world in which they abruptly
found themselves. For such reasons, California's Emancipation of Mi-
nors Act and other emancipation statutes potentially represent a risky
bestowal of de jure autonomy prior to a minor's attaining de facto
autonomy.
While parents or other adults do not "own" children, they do not
ensure children's autonomy simply by declaring that children own
themselves. Indeed, under traditional formulations of children's rights,
each child is fundamentally entitled to educational processes that de-
velop his or her actual autonomous capacities, often at the expense of
adult convenience. A personal as well as legal commitment by adults
to the nurturing and education of children is necessary to develop each
child's actual autonomous capacity, which in turn sustains the aggre-
gate autonomy and continuity of a democratic society. To assert that
untutored, unguided children already enjoy all the autonomy they need
may relieve adults of demanding responsibilities, but in the long run
that assertion ironically becomes a profound form of child neglect.
Children cannot raise themselves.
2. State Paternalism Distinguished from Family Paternalism

Our second general concern with the autonomy-based provisions of
the CRC is their failure to distinguish between state paternalism and
parental paternalism. By trying to create a direct political and legal
relationship between children and the state, the CRC, perhaps unin-
tentionally, could have the long-term effect of reducing parental com-
mitments to childrearing while concurrently increasing the dependency
of children on the state. Almost two decades ago we stated:
178. Id. at 330 (quoting County of Alameda v. Kaiser, 48 Cal. Rptr. 343, 344-45 (Cal. Ct.
App. 1965)). In an interesting aside, Sanger & Willemsen compare -statutory emancipation with
divorce, noting that the complete legal severance in the parent-child relationship is even more
quick and simple than an uncontested divorce. Id. at 318-21. They found this especially
surprising given that "unlike spouses, the legal duties between parent and child are not supposed
to be equally beneficial to both. Benefits go mostly to children who are presumed to lack the
capacity to renounce either the relationship or its benefits." Id. at 320.
179. Id. at 297.
180. Id. at 248.
To the extent that governmental policies foster noncommittal

attitudes on the part of parents--either because parents believe
they have no right to give direction to their children, or because
they fear that in giving them direction they might meet . . .
state-supported resistance . . . both the children of those families
and the larger society will suffer.
For most parents, the "rights" of parenthood leave them no
alternative but an assumption of parental responsibility, because
that responsibility, both by nature and by law, can be assumed by
no one else until the parent has failed. But when state-enforced
policies undermine traditional parental rights, those same policies
will inevitably undermine the assumption of parental responsibil-
ity. To undermine parental initiative would pot be wise because
our society has found no realistic alternative to it .... One might
even say that children l8have a right to [policies that encourage
parental responsibility].
In the intervening years, we have witnessed increasing adult disinterest

in the nurturing of children. 8 2 The CRCs attitude only exacerbates
this tendency.
In addition, the CRC's effort to build a direct relationship between
children and the state creates a statist conception of community that
not only undermines such private mediating structures as families,
churches, and other voluntary associations, but also hastens the anti-
democratic tendencies inherent in state-imposed paradigms of childrear-
ing. Children are inherently dependent persons-a concept less of law
than of nature. So the question is on whom will children depend, not
whether they should be dependent. In this "struggle between the
family and the State for the minds of the young," 18 3 the pluralistic
democratic tradition has looked to parents and families, not to the
state, to teach children the values, beliefs, and commitments that
184
sustain an open society.
For that reason, policies that reduce the institutional strength of
parents in a family entity encourage totalitarian attitudes, not the
attitudes of liberal democracy. The totalitarian cannot succeed until
"the social contexts of privacy-family, church, association-have been
atomized. The political enslavement of man requires the emancipation of
man from all the [intermediate] authorities and memberships ... that
181. See Hafen, Children'sLiberation, supra note 58, at 655-56.

182. See Hafen, supra note 42, at 447-49.
183. Allan Carlson, What's Wrong with the United Nations' Definition of'Family'?, Remarks for
the Seminar sponsored by the Population Research Institute, (Apr. 14-15, 1994) (quoting
Norman Ryder, POnULATION BuLLaN OF THE UNITED NATIONS (1983)).
184. For further development of this theme, see Hafen, The Constitutional Status of Marriage,
supra note 58, at 479-84.
18 5
serve . . . to insulate the individual from external political power."
Building a state-child tie that inherently reduces the strength of the
parent-child tie creates the kind of "spiritual and cultural vacuum" that
"the totalitarian must have for the realization of his design." 186 By
declaring that children are autonomous when in fact they are depend-
ent, the CRC, perhaps unwittingly, accelerates what Peter Berger calls
the "therapeutic totalitarianism" of a statist community that, per-
versely, does not want its individual citizens to develop the actual
autonomy and capacity for personal liberty that could ultimately chal-
lenge the authority of the state.1' 7 The nurturing of truly educated
individualism, as distinguished from mere dependency, is only possible
within the deep commitments to value-based child development found
in families, not in state nurseries.
Given this concern, we find great irony in the observation of Akira
Morita, a Japanese constitutional and juvenile law scholar who has
studied the CRC's drafting process. Professor Morita found that after
a long period of discussion and development, the CRC's 1988 draft-
particularly its emphasis on child autonomy--suddenly resulted from
"a hurried compilation of the then current discussions as heavily im-
pacted by the growing momentum toward the end of the Cold War.
In other words, the 'civil rights and liberties of the child' was .. .88a
child of the ideological victory of the United States over the U.S.S.R."'
In his view, the then-impending collapse of total state paternalism in
the Soviet Union helped convince the drafters that they should accept
the anti-paternalistic ideology of the proposed CRC.
If so, the drafters significantly confused state paternalism with fam-
ily paternalism, for the Western liberal tradition has long viewed
strong familial authority as a primary check on excessive state power. 189
Nonetheless, the anti-paternalistic flavor of the times helped lead the
drafters "in the final phase of deliberations in Geneva" to "defeat...
an attempted resistance by the representative of West Germany who
tried ... to defend the traditional paternalistic structure of child and
family law in Western society."' 190
It is also possible that the willingness of some drafters to link
coercive state paternalism with a dim view of parental paternalism
185. ROBERT NISBET, THE QUEST FOR CoMMuNITy 202 (1953).

186. Id. at 203.
187. Conversation with Peter Berger, Professor at Boston University, Institute for the Study
of Economic Culture, in New York, N.Y. (1994).
188. Akira Morita, The Legal-HistoricalBackground and Drafting Process of the Convention on the
Rights of the Child--Protectionvs. Autonomy, SOCIO-LEGAL STUD. ON FAM. L., Sept. 1994, at 29,
31.
189. See Hafen, The ConstitutionalStatus of Marriage,supra note 58.
190. Morita, supra note 188, at 31.
resulted not from confusion, but from a conscious acceptance of an
ideological critique that regards the nuclear family as "'a microcosm
of the fascist state, where the women and children are owned by, and
191
their fates determined by, the needs of men, in a man's world.' If
so, one wonders if such a vision of the nuclear family was acknowledged
when the CRC made its way to the floor of the United Nations General
Assembly in 1989.
Whatever the drafters' understanding about state versus familial
paternalism, their document resolves too many tough issues by erring
on the side of children's autonomy. This stance places the full weight
of the United Nations behind the idea that parents and other adult
caregivers should leave children alone, letting them speak for their own
welfare and choose for themselves how their needs should be met. This
approach confuses children's needs for nutrition, education, and pro-
tection (with which the United Nations has historically, and wisely,
been concerned) with children's alleged right to make autonomous
choices. Such confusion can undermine children's most basic needs. The
drafters evidently wished to use avant-garde terminology that seems
to place the United Nations on the cutting edge of human rights
thinking, but they have failed to see the distinction between the
applications of that terminology to adults and its applications to
children.
The standards and language of the CRC extend well beyond the
current state of United States law, despite the inferences of some
proponents to the contrary. In an understated expression that reflects
his seasoned perspective on such issues, American family law professor
Sanford Katz describes the CRC as "a statement of ideals," that, like
any international treaty "in the area of domestic relations creates prob-
lems for an American audience." 192 He sees the CRC as addressing
several "controversial subjects" with such language as "privacy," "best
interests of the child," and other terms that "are not easily defined in
American law, nor is there necessarily a national consensus on their
193
meaning."
We are concerned that members of the international community,
especially those who look to the United States for leadership in the
emerging field of children's rights, have adopted the CRC's language
without realizing that some of its key propositions and assumptions
are not self-defining and are highly debatable. 194 For example, we were
191. Lilian Handlin & Oscar Handlin, America and Its Discontents, 64 Am. SCHOLAR 15, 25
(Winter 1995).
192. Sanford N. Katz, Afierword to CHILDREN'S RIGHTS IN AmucA, supra note 2, at 335.
193. Id. at 336-37.
194. As examples of international family law scholars issuing warnings about the dangers of
uncritical acceptance of the Convention, see Barbara Hug, Die Kinderrechtsphiloophle,81 ZBN-
told by a practicing Danish lawyer that Denmark adopted the CRC in

1991 and that the national offices that monitor child welfare and
family law matters in that country now routinely defer to the CRC's
language to ensure that local practices follow United Nations guide-
lines. 195 To the extent that others follow this pattern, we hope they do
so as a result of conscious reflection on the alternatives, not simply
because they believe that the latest word on children's rights is neces-
sarily the best one.
III. CONCLUSION
During September of 1994, the United Nations sponsored the 1994 196
International Conference on Population and Development in Cairo.
The Conference plans were established by a group that included Clin-
ton Administration representatives and was led by Dr. Fred Sai of
Ghana, the president of the International Planned Parenthood Federa-
tion. 197 Following a highly publicized debate, the delegates to Cairo
defeated several key aspects of the Conference agenda, including those 198
that would have established elective abortion as an international right.
A primary factor leading to this outcome was the public campaign
mounted against the original plans of the Conference by Pope John
Paul II, who resisted not only the abortion proposals, but also the core
philosophy of the Conference planners. 199 George Weigel describes this
philosophy as a "view of the human condition and the human prospect"
that is "rooted in [the] concept of the radically autonomous individ-
ual." 2°° Thus, "while frequently noting the importance of 'the family
in its various forms,"' the draft document rejected by the delegates said
nothing about the importance of families rooted in stable mar-

riages for the physical and mental well-being of children. Nor did
TRALBLATT FOR JUGENDRECHT 508 (1994) (ER.G.); Akira Morita, Schutz oder Autonomie, ZEsT-
FRAGEM, Jan. 1995, at 9 (Jan. 1995) (Japan); D. Phillips, The Risk to Family Relationshipsfrom the
UN Convention on the Rights of the Child, LIGHT, February 1990, at 8, 11 (Australia); Stoecker,
supra note 108, at 245 (Germany). For sources indicating the potentially significant international
effect of the Convention, see Maggie Black, Recommendations and Follow-Up, in MONITORING THE
RIGHTS OF CHILDREN (May 23-June 1, 1994) (from transcript of Innocenti Global Seminar on
Monitoring the Rights of Children sponsored by UNICEF); Giran Therborn, The Politics of
Children's Rights: Experiences, Dimensions and Perspectives, (December 1994) (unpublished
manuscript, on file with author) (presented at European Conference Monitoring Children's Rights
in Ghent, Belgium).
195. Interview with Eva Caspersen, Associate Professor of Family Law at Aalborg University
(Denmark) and Legal Adviser, City of Aalborg, in Provo, Utah (Feb. 7, 1994).
196. Weigel, supra note 45, at 24.
197. Id. at 24, 26.
198. Id. at 30.
199. Id. at 29, 30
200. Id. at 26.
the draft document have much else to say about the natural and
moral bond between parents and children and its importance for
achieving many of the document's laudable goals, such as im-
proved health care and education for youngsters. Indeed, the docu-
ment sundered the moral relationship between parents and teen-
age children by treating sexual activity after puberty as a "right"
to be exercised at will, and by suggesting that state population
and "reproductive health care" agencies be the primary interlocu-
tors of young men and women coming to grips with their sexu-
20
ality.
As Part II of this Article suggests, this description of the original Cairo

agenda could have been written to describe some of the philosophy and
terms of the 1989 United Nations Convention on the Rights of the
Child.
Five months after the Cairo conference, in February 1995, the Clin-
ton Administration announced that the United States Ambassador to
the United Nations would sign the CRC and that the Administration
would then send it to the United States Senate for ratification. 20 2 In
making this announcement, the Administration stated that the CRC
is simply a statement of "ideals and principles" designed "to promote
the well-being and protect the basic rights of children throughout the
world" in such areas as "health care and protection from violence," and
it "will not give children the right to sue parents or supersede state
laws dealing with the punishment of minors.."20 3 This language implies
that the Administration wishes to present the CRC as a reaffirmation
of basic, even obvious, human rights, not as a conceptual or technical
departure from current United States law.
Our research has not taken us far enough to explain why the
international community's resistance to the Cairo draft's notion of "the
radically autonomous individual" did not also surface in ways that
would have altered the 1989 Convention prior to its adoption. 20 4 This
201. Id. at 27. As finally adopted, the report of the Cairo Conference stated that "'in no case
should abortion be promoted as a method of family planning."' Id. at 30. Moreover, the final
document reaffirmed "the rights and responsibilities of parents in respect of their teenage
children" and "the worst of the euphemistic language about the structure of the family had been
changed, so that the Cairo document could not credibly be appealed to on behalf of 'gay marriage'
and other innovations." Id
202. Clintos Asking Senate to Endorse Children's Rights, SALT LAKs TRI., Feb. 12, 1995, at A8
(from WASH. PosT, Feb. 11, 1995, at A3).
203. Id.
204. We are indebted to Professor Michael Young for the insight that international debates
over human rights issues have often pitted developed Western nations' interests in sophisticated
legal rights against less developed nations' interests in infrastructure and capital formation: many
in the developing world want help in purifying their drinking water before they are ready to talk
seriously about protecting dolphins. Telephone Interview with Professor Michael K. Young,
Director, Center for Japanese Legal Studies, Columbia University Law School (Jan. 1996), In
puzzle is underscored by the U.N.'s candid and provocative acknow-
ledgement that the CRC presents a "new concept of separate rights for
children with the Government accepting the responsibility of protect-
ing the child from the power of parents, ' 20 5 a concept that its advocates
say promotes "an 'autonomous' view" of children's rights "more based
on choice than needs" of children. 20 6 It is quite possible that many
members of the international community have simply not understood
either the CRC's language or its conceptual novelty. Given the com-
plexities of language translation in an area where nuanced phrasing and
subtle legal distinctions are at the heart of the arguments, 20 7 this is a
believable interpretation.
The Vatican's early approval of the CRC explicitly assumed "that
the Convention represents the enactment of principles previously adopted
by the United Nations," an apparent reference to earlier United Na-
tions declarations on children. 20 8 Those close to the drafting of the
CRC, however, have explained that the principles previously adopted
by the United Nations were concerned only with "care and protection"
for children, not with the CRC'S new idea20 9of children's choice rights
of autonomy and "individual personality.
Amid this confusion, now that the CRC has been widely accepted
in the world community, its newly fashioned approach to children's
liberation could today be offered in the United States as evidence that
addition, as the Cairo experience demonstrated, some Islamic, Asian, and other countries have at
times worried that the sometimes facile rhetoric of rights may be a veiled vehicle to export
unwelcome Western cultural imperialism. Confrontations between such differing perspectives
typically produce compromises and trade-offs in the positions taken by international treaties. A
possible question for future research on the CRC's origins and implications is why its cutting
edge positions on child autonomy and the relationships among child, parent, and state did not
more fully engage the nations and delegates who might have questioned the vision of the NGOs
who drafted the document. We do know that the drafting process did not include "most of the
less developed countries." Cohen, supra note 51, at 84.
205. UNITED NATIONS 1994/95 PUBLICATIONS CATALOGUE at 64.
207. In the Cairo conference,
French translators had to resuscitate a nineteenth-century term (sante gerwique) in the effort
to render "reproductive health" in their language. "Family leave" had almost everybody but
the Americans stumped; the Arabic translation refers to parents leaving each other after a
birth, while the Russian translation spoke of the entire family taking a vacation together.
The Chinese thought "sexual exploitation" was an easy one, for they could rely on Chairman
Mao's critique of capitalists .... But the Arabs were caught between American buzz words
and their own religions sensibilities. "Sexually active unmarried individuals"-who are
committing criminal acts under Islamic law-thus became "sexually active as-yet-to-be
married individuals."
Weigel, supra note 45, at 31. And the Russian translation of "'reproductive health' turned out
to read, "'health that reproduces itself again and again."' Id.
208. Statement by H.E. Archbishop Renato R. Martino, Permanent Observer of the Holy See
to the United Nations, Address at a press conference on the occasion of the accession of the Holy
See to the Convention on the Rights of the Child (Apr. 20, 1990).
209. See supra notes 51-53 and accompanying text.
the CRC simply reflects established international thought about hu-
man rights for children; hence, the United States is arguably out of
step not to adopt it. 21 0 The CRC's approach to child autonomy, how-
ever, was unheard of in the international arena prior to 1989.211
The surprisingly rapid global acceptance of the CRC since 1989 may
well have been hastened by two faulty assumptions. One flawed as-
sumption is that the CRC simply restates principles long recognized
by the United Nations. The CRC's own drafters have stated, with some
pride, that this is not the case. 212 A second flawed assumption is that
the CRC simply reflects contemporary United States legal approaches
to individuals rights for children, which implies that the United
Nations would have been behind the times not to adopt what pur-
ported to be an enlightened American concept. Part II has summarized
how the CRC goes beyond United States law not only on several key
issues, but in its overall concept of child autonomy. Since neither of
these significant assumptions is correct, there is reason to wonder
whether the CRC's proponents have somehow pulled it up by its own
bootstraps. If so, perhaps a debate on the CRC before the United States
Senate would provide needed clarification, because the CRC's ideas
about child autonomy as a legal rather than a merely developmental
213
concept apparently originated in American minds.
Clearly, in the United States as elsewhere, many older adolescents
are quite capable of making sound lifestyle choices; far too many
210. For an example of how the CRC can persuade U.S. courts despite not having been ratified
in this country, see Batista v. Batista, 1992 Conn. Super. LEXIS 1808, at *18-*19 (Conn. Super.
Ct. June 18, 1992).
211. Seesupra text accompanying notes 51-53. Nonetheless, some commentators today refer
to the CRC in such matter-of-fact terms that one could assume its approach to children's rights
is a long established one. E.g., "[Alt least as a rhetorical matter [children's rights] are common-
place among the international human rights community, but they remain controversial within
significant sectors of this country." Martha Minow, What Ever Happened to Children's Rights?, 80
MiNN. L. Ray. 267 (1995) (describing the confrontation some have predicted will occur when
the Clinton Administration sends the CRC to the U.S. Senate for ratification).
Professor Minow then summarizes various legal and policy approaches that U.S. advocates have
taken to address the needs and rights of children. She concludes that none of these approaches
has found a strong enough constituency to succeed in the United States; therefore, perhaps
Americans who are concerned about children should look to "the emerging [international] human
rights rhetoric" represented by the CRC for a fresh set of ideas drawn from "the standards for
treating children developed elsewhere." Id. at 295. As we have suggested, however, it is quite
possible that recycled U.S. children's liberation ideology from the 1960s and 1970s played a
larger role in shaping the CRC'S child autonomy rhetoric than did actual and successful experience
with children in countries outside the United States. If so, Professor Minow's perception of the
CRC illustrates our concern that American children's rights advocates who failed to persuade
their own courts and legislatures may have used the CRC to legitimize their untested theory in
a less sophisticated venue, allowing them now to unveil it at home as if it were a substantively
established international norm. See supra notes 6, 57-58 and accompanying text.
213. See spra note 54.
parents are dysfunctional; far too many children are ignored and abused;
and no investment of human or political resources has greater long
range significance than investments in children. But years of serious
struggling with these issues in one of the world's cultures most friendly
to ideas about personal autonomy has not persuaded most United
States courts and legislatures that-short of actual neglect-state agen-
cies (or children themselves) are better equipped than the nation's
parents to assume parental roles.
Current legal literature contains increasing autonomy rhetoric, and
modern culture reflects an emerging but misguided tendency among
some adults to defer increasingly to children's preferences. But the
United States legal system still limits children's autonomy in the short
run in order to maximize their development of actual autonomy in the
long run. When responsibly embraced by parents and others involved
in child care and education, this approach also encourages development
of the personal competence needed to produce an ongoing democratic
society comprised of persons capable of autonomous and responsible
action. To short-circuit this process by legally granting-rather than
actually teaching-autonomous capacity to children ignores the reali-
ties of education and child development to the point of abandoning
children to a mere illusion of real autonomy.

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VOLUME 37, NUMBER 2, SPRING 1996

Abandoning Children to Their

In 1989, the United Nations General Assembly adopted, without a

* Provost and Professor of Law, Brigham Young University.

5. See infra note 54.

To this end, the CRC's proponents say it "recognizes that children

I. KIDS ARE PEOPLE TOO: AUTONOMY IN CHILDREN'S

A. Autonomy in Children's Rights Law

criminating against children, this tradition sought to give children

21. State v. Koome, 530 P.2d 260, 263 (Wash. 1975).

The most zealous proponents of children's liberation relied not on

B. Autonomy as IncreasedFreedom for Children in American Society

possess threshold-level constitutional rights. 37 Moreover, legal scholar-

Our discussion of the CRC attempts to illustrate how undermining

H. AUTONOMY IN THE UNITED NATIONS CONVENTION

document reflects a significant degree of both conceptual development

47. U.N. BOOKLET, supra note 8, at 3.

United Nations approaches to children's needs or rights, nor did it

the autonomous legal personhood of children have never been fully

Protection rights, which do not depend on any minimum level of

B. Autonomy and Civil Rights for Children in the CRC

vention in intact families. Among the fundamental axioms of United

"parents ...have the primary responsibility for the upbringing and

69. Id. art. 18, at 169.

interests standard is indeterminate and very difficult to apply even

2. Subjective vs. Age-Based Determinations of Capacity

Some courts in recent years have experimented modestly with legal

are demonstrably unfit, long established United States juvenile law

automatically competent nor incompetent." 91 But whatever the mean-

3. "Civil Rights" for Children

a. Free Speech and Association

Articles 28 and 29 do urge participating countries to provide "com-

tion claims in upholding a local ordinance that prevented young people

1934 phrase which now seems to capture the contemporary idea of

125. See supra note 14 and text accompanying notes 14-15.

The Supreme Court has upheld constitutional privacy rights for

omy--even when those commitments are primarily associated with the

C. GeneralLimitations in the CRC's Autonomy Model for Children's

1. Children's Rights and Adult Preferences-Autonomy in Whose

150. See ZIMmING, supra note 38.

158. Whitehead, supra note 144, at 80.

While common law prerequisites to judicial emancipation vary greatly

reviews enthusiastically welcomed California's new emancipation stat-

Especially troubling was Sanger and Willemsen's discovery that

illogic of a rule that he may bind himself by a contractual release of

2. State Paternalism Distinguished from Family Paternalism

To the extent that governmental policies foster noncommittal

In the intervening years, we have witnessed increasing adult disinterest

181. See Hafen, Children'sLiberation, supra note 58, at 655-56.

185. ROBERT NISBET, THE QUEST FOR CoMMuNITy 202 (1953).

told by a practicing Danish lawyer that Denmark adopted the CRC in

nothing about the importance of families rooted in stable mar-

As Part II of this Article suggests, this description of the original Cairo

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