Rights are tricky things, because they are often in conflict with each other. For example, one person’s right to expression can conflict with another person’s right to privacy. Parents’ right to parent their children as their conscience dictates can sometimes conflict with certain conceptions of a child’s right to an education. These situations put us in the difficult position of having to protect two groups of citizens whose rights conflict with each other.
So much work has been done to identify the rights of children without parental care – typically referred to as “vulnerable children.” In general, we assume that if we can identify the rights that need to be protected, then we can figure out strategies for protecting those rights. But we saw in the last article in this series, that even though it is difficult to articulate the rights of vulnerable children, it is even more difficult to have a conversation about how to protect those rights across cultural and religious boundaries. We identified how both sides of the debate about adoption and orphan care can miss important nuance and end up talking past each other instead of engaging and collaborating to develop innovative solutions to protect vulnerable children.
So how do we mediate between conflicting rights to ensure that vulnerable children are protected? When we are placed in the difficult position of having to privilege some of the conflicting rights over others, we should make that decision based on identifying 1) whose rights are ultimately being protected, 2) whose interests are being served, and 3) what kind of precedent is set by the decision to privilege some rights over others.
As a reminder, there are multiple rights articulated in the Convention on the Rights of a Child, the foundational human rights document addressing children. In addition to these articulated rights, there are two overarching themes—that all actions must protect the best interests of a child, and that the family is an important unit that enables the “full and harmonious development” of a child. This structure of the document represents the first space for a conflict between the rights of vulnerable children—there is no articulated right to a family, but rather the recognition that a family is an important context for child development and flourishing. Many groups which advocate for international adoption articulate and support a right to a family, but this right is not directly enumerated in the primary document articulating child rights.
Beyond this conflict between the themes of the document and the articulated rights, there is also potential for conflict between the rights that are directly expressed. For example, children have a right to be protected from discrimination, abuse, and exploitation. But they also have a right to be protected from separation from their parents against their parents’ will and unlawful interference with their privacy, family, and home. Sometimes these two sets of rights can be directly in conflict with each other, especially when it is the parents perpetuating the abuse or exploitation, or when those outside the family perceive that the parenting style is inappropriate. For example, since at least the 1980s, there has been debate about the appropriateness of spanking, or corporal punishment. This ongoing debate has led to more than twenty countries outlawing all domestic forms of corporal punishment. Many parents, and parental rights advocates, maintain that this privileges an interpretation of a child’s right to be protected from abuse over the child’s right to be free from unlawful interference with their privacy, family, and home. These cases are incredibly difficult to mediate both legally and socially.
Another area where articulated rights come into conflict is the possibility that a child’s right to freedom of expression could potentially conflict with the child’s right to an adequate standard of living for their mental development. Children have to be taught when it is appropriate to express their mind and when it is appropriate to reserve comment. This learning process could at times be seen as violating a child’s right to expression. But a child cannot properly develop, mentally and socially, if they are not instructed on when it is appropriate to not express themselves.
So how do we mediate between potentially conflicting rights? When two rights come into conflict with each other, how do we decide which right to privilege and which right to violate? This is a particularly salient issue for vulnerable children, because in society we generally trust parents to make these decisions for children until they are at an age that they can make the decision for themselves. Vulnerable children are often vulnerable primarily because they lack parental advocacy and guidance. In such cases, other caretakers and the state are left to mediate between rights in these tricky situations.
It is not feasible or even possible to create a guide to each conflict in rights. But we can still rely upon guiding criteria that can help us more effectively mediate between conflicting rights. These guiding criteria help in multiple ways: 1) they provide a way of carefully thinking through decisions (on the individual level) and policy (at the state level), 2) they provide common language we can use to justify decisions, and 3) they provide a means of assessing decisions after they have been made and implemented. I will address each guiding criteria in turn.
First, whose rights are being protected in the decision to privilege one right (or set of rights) over another? This might seem obvious, since we are talking about the rights ofchildren. But often the rights of children, vulnerable children in particular, get intertwined with the rights of others involved with the child. For example, when considering vulnerable children we are also confronted with the rights of birth parents, adoptive parents, caretakers investing in the child, and even the child’s siblings. These groups are all important people to consider. But ultimately, if we are trying to decide which of a child’s rights to privilege over other rights, we must consider how that decision impacts the child who is in need of protection.
Second, whose interests are being served in the decision to privilege one right (or set of rights) over another? Again, it might seem obvious that if the child is being protected, their interests are the ones being served. But often there are other groups whose interests are also served by the decision to privilege one set of rights over another. For example, does the decision serve the interests of adoption agencies or other groups advocating for vulnerable children? Or perhaps are the interests of institutions, like orphanages, also being served? If there is little difference in the protection of the child between the two choices, looking at other groups whose interests are served in the decision can add an additional layer of problem-solving capacity. Additionally, identifying other benefiting groups can expose ulterior motives that might change the calculation of which rights to privilege in the decision.
Finally, what precedent does it set to privilege one right (or set of rights) over another? Though the ultimate concern in this type of decision should be the child being protected, there are always long-term, and sometimes unintended consequences when the decision is made to privilege some rights over others. In the end, none of these criteria prevent the tension that comes when we are trying to protect children. Often there are rights that conflict with each other, not just in their interpretation but also in their application. But we should care about engaging in the conversation and finding a way to effectively mediate between conflicting rights. Having a guiding criteria provides a language, helps us analytically think through the options, and helps us evaluate the decision after it has been implemented.
-Becca McBride is Assistant Professor of Political Science at Calvin College, in Grand Rapids, Michigan. Her research focuses on investigating how politics influence states’ efforts to control intercountry adoption, and how advocacy organizations influence state policy on adoption. She has a PhD in Political Science from Vanderbilt University and an MA in Russian, Eurasian, and East European Studies from Georgetown University.