In his column "Reproductive freedom enslaves us" (May 13, 2000) David Frum seems to have forgotten a well-established legal principle:  namely, that you can’t transfer rights you don’t own.  

If your television set is stolen and you discover it in the possession of an innocent person who bought it from the thief without knowing its history, you are still entitled to get it back.  The thief can’t convey good title to the television set because he never held good title himself.

In law, parents don’t own their children.  They can’t murder them, torture them or enslave them.  They can’t take them to the vet and have them put down, as they can a dog or cat they might own.  The only right they possess in respect of their children is the right to engage in a legally circumscribed parent-child relationship.  That relationship entails, on the parent’s part, an obligation to provide the necessities of life.  It carries with it the opportunity of reaping certain emotional and psychological rewards—love, fun, companionship.

If a parent decides to give up a child for adoption—whether the child is already born or still in the womb, and whether the transaction involves the exchange of money or not—all the parent can convey to the adoptive parent are the limited rights she had herself.  Those rights are not ownership.  They are simply the opportunity to engage the child in a relationship.  This is nothing at all like slavery.     

However, a more disturbing aspect of Mr. Frum’s column is his argument that it is the fault of the law that people are engaging in surrogate parenting contracts, artificial insemination, and perhaps one day soon, cloning.  These reproductive innovations are possible, he says because of the "active co-operation of the government" in enforcing such contracts.  

He seems almost to subscribe to the theory that everything should be forbidden unless the state makes an explicit decision to permit it.   Advocates of freedom generally take the opposite view: namely, that everything should be permitted unless good reason exists to prohibit it (for instance, if it violates another’s right to life, liberty or property).  

One of the proper functions of the state is the enforcement of voluntary contracts between freely bargaining individuals.   The state can’t possibly imagine in advance the terms of every conceivable type of agreement that we ingenious human beings might reach.  Innovation and human progress would grind to a halt if the government took the position that it would enforce only contracts that it had approved beforehand.   The default position should be that the state stands willing to enforce every new type of voluntary bargain unless it is for an already illegal purpose (for instance, a contract to commit a murder).

Like most conservatives, Frum seems to be troubled by the possibility that new reproductive technologies will give single people or homosexuals greater opportunities for raising children.  In his writings over the years, he has sometimes mentioned the substantial body of evidence supporting the proposition that children do better in two-parent families than in single-parent families.  Perhaps there is also evidence (although I don’t know of any) showing better outcomes for children raised by heterosexuals than by homosexuals.

While these phenomena may be true statistically, there are limits to the uses that should be made of them.  Certainly one valid conclusion is that we should not adopt public policy measures that increase the incidence of single parenthood--such as subsidies to single parents.   Another valuable use of this information would be for individuals contemplating single parenthood to do some soul-searching about the wisdom of their plan.

However, these statistics should be absolutely irrelevant to the question of  whether any particular individual should have the legal opportunity to be a parent.  No matter how great the advantage may be for the median child raised by two parents, no matter how great the preponderance of children who do better with straight parents, the fact remains that out at the far end of the bell curve for single or gay parents, there are some who will do an outstanding job of raising their children—far better than the vast majority of straight couples.  

We don’t know in advance which parents these will be.  To deny any individual the right to become a parent merely because of the statistical possibility that he or she won’t do as good a job as someone else leads us straight to authoritarianism.   All manner of intrusive laws might be justified on such grounds.   We might as well seize at birth all children born to unmarried women, whether conceived in a laboratory or by the more usual method.

If he’s like most conscientious parents, Mr. Frum probably doesn’t give his children everything they ask for.  He probably teaches them that they have to work to get what they want.  He knows they will value things more highly if they’ve had to make sacrifices to get them.  

Parents who pay for eggs, or sperm, or the services of a surrogate carrier should not be looked down upon as if they held human life cheap.  The extra sacrifices they make in order to become parents may well mean that they value the children they commission more highly than they would if they had been able to conceive normally.