Georgetown paperRevised

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Procreation, Exploitation, and Parental Role-Morality: Doing Wrong while Doing Better

Three Cases

Ill start with three cases that appear to have interesting affinities. In each, parents

create or acquire a child under conditions that leave all the affected parties better off, or

no worse off, than they would otherwise be. Yet their actions are deeply troubling. The

first two cases seem to involve the non-identity problem, the problem of explaining the

wrong in actions and policies that bring about the existence of worse-off people without

making anyone worse off. The difficulty may seem to lie in explaining how the parents

could have wronged their child if they could not have done better for him. I will argue

that this is not the real difficulty. The wrong the parents commit in these cases appears to

be the same as in cases where they clearly couldhave done better for their children. It is

not the possibility of doing more good or less harm that explains the wrong; I will spend

the rest of the paper exploring what does.

The first case is taken from The Paradox of Future Individuals, a 1982 essay by

Greg Kavka:

In a society in which slavery is legal, a couple that is planning to have no children

is offered $50,000 by a slaveholder to produce a child to be a slave to him. They

want the money to buy a yacht. Should they sign the agreement, take the money,

and produce the child? On the assumption that life as a slave is better than never

existing, their doing so would not harm the child. For if they turned down the

slaveholder, they would either produce no children or if they later changed their

minds about becoming parentsproduce otherchildren. Thus, all involved

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themselves, the slaveholder, and the slave child they produce would benefit

from the arrangement (100).

The second case I want to present is less fanciful. A woman with a serious alcohol

addiction wants to have a child. She is not willing to do so, however, if she must stop

drinking she has had several agonizing failures to stop, and there is nothing like the

stress of pregnancy to drive her to drink. But she can control her intake enough to ensure

that her child will have only mild fetal alcohol syndrome a significant impairment, no

doubt, but one that will not preclude a worthwhile life. She reasons that since she would

never have this child if she were on the wagon, the arrangement is beneficial for both of

them.

In these first two cases, the child who appears wronged by his creation would

otherwise not have existed, and enjoyed a worthwhile life. Melinda Roberts argues that

such cases do not involve non-identity, since the child couldhave existed without the

harm. If she is right, the parents could have avoided the harmful conditions that the child

faces the couple couldhave had the same child but not given him to the slaveholder; the

woman couldhave carried the same child without drinking.

Yet this cant be explanation for the wrong. To see why, consider a third case, in

which the prospect of doing better for the child is clearly not the source of a very similar

wrong. Adoption agencies will sometimes relax certain rules, or offer certain breaks, to

get couples to adopt hard to place children. For example, Im told that some countries

which set 40 as the age limit for adoptive parents waive it for special needs children.

Imagine a more problematic waiver, adopted by a jurisdiction anxious to unload its

inventory of hard-to-place children. The harder the child is to adopt (by some metric of

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difficulty) the less effort the parents will be required to put into his upkeep (by some

metric of effort). In every case, however, the burden of care will be set high enough to

ensure that the child will be at least as well off as he would have been otherwise -- if he

were left on the street or in an orphanage.

Now imagine an ambivalent couple, who vaguely want a child but are willing to

put very little effort into its upkeep. On the last day of the waiver, they consider adopting

a very unpleasant and unattractive child that no one else will take. If they do adopt, and

proceed to give that child only the minimum of care the arrangement requires, they will

have acted wrongly, even if the alternatives for that child are clearly worse. But if they

decline, because even that minimum is too high for them, they do not appear to have done

anything wrong. In both cases, they will have failed to do as much as they could have for

the child. But they will not have acted wrongly in the second case, although they do even

less for the child than in the first.

Whats Wrong Here?

The parents of Kavkas slave child, the alcohol-addicted pregnant woman, and the

reluctant parents lured by a sliding scale of care for less-adoptable children all offer a

good deal to a being who obviously cannot bargain on his own behalf: he gets a life

worth living, clearly preferable to non-existence, abortion, or institutional rearing, but

only by allowing the source of that benefit a little self- indulgence a yacht, the freedom

to continue drinking during pregnancy, a reduced burden of care. The child gets the great

benefit of an existence, a birth, or a family that he would not have had, or been highly

unlikely to have, without that deal sweetener. In each case, the actions of the prospective

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parent seem wrong, and seem to wrong the child, though they appear to make him better

off than he would otherwise have been. Following Kavka, I suggest that our judgment in

these cases does not rest on the parents selfishness: replace the yacht with a charitable

contribution, drinking with critical drug research equally risky to the fetus, or a bohemian

lifestyle with a large brood of biological children to care for, and the parents conduct

still seems to wrong the child. I do not think, however, that Kavkas own explanation, in

terms of the exploitative character of that conduct, captures the wrong.

Rather, I will argue that our judgment is grounded in a conception of the role that

parents should play. A parental action may be wrong, even when it is better in some sense

for the child, if it violates the specific obligations of that role. Clearly, there is room for

disagreement about what those role-obligations are. I will be less interested in defending

a particular view of those obligations than in illustrating how questions like those posed

by the above cases can b e addressed in terms of parental role morality.

I will proceed as follows; I will start by claiming that parents can be seen as

occupying a role; that they are like doctors and lawyers in being subject to a role-specific

morality which generates duties and liberties which would not arise from the bare facts

of their situations. I will suggest that the parental role must be understood in the context

of institutions, especially the family and the state, but will not attempt to resolve the issue

of whether the role-morality of parents (or of doctors and lawyers) can be reduced to or

derived from a more encompassing morality. I will, however, argue that such a reduction

or derivation is only possible if the wider morality recognizes that duties can arise from

the occupation of conventional roles, roles that may vary widely across societies and

times.

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I will then attempt to motivate a role-morality account of the last two cases by

examining the problems with Kavkas analysis in terms of the exploitation or misuse of

unearned powers. I will argue against an exploitation account in three ways. First, I will

claim that equally harmful actions that are more compatible with what we understand as

the prerogatives of the parental role are less objectionable. Thus, it is more acceptable

for a parent to spend only a few hours a week with his child if his time is made scarce by

his duties to his other children than by his devotion to worthy social crusades. Second, I

will argue that the refusal of prospective parents to assume the full duties of the parental

role is no less objectionable if the alternatives for the future child are not as poor as in the

cases we began with if the childs very existence, birth, or family membership did not

depend on the suspect bargain. Third, I will argue that bargains that it would seem

exploitative for parents to strike may be acceptable for guardians or care-givers who do

not assume parental roles. I will focus on cases like the third, involving a sliding scale of

parental commitment for difficult foreign adoptions. I realize, of course, that this case

does not involve the exploitation of reproductive powers, but of powers whose exercise is

equally precious: the powers of love and nurturance that parents provide. I think those

powers are equally subject to misuse, but better understood in terms of the role that

parents are expected to play.

The Parental Role

It is obviously necessary to say more about the role of parent and the kind of

association it creates, although what I say here will be very preliminary. Parents take care

of children, rear them, and form families. Although these functions may be severable in

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theory from each other, they are currently seen as aspects of the same enterprise. Of

course, even in contemporary society, they frequently do not coincide some parents

assign the care or rearing of their children to third parties, and some parents, especially

fathers, contribute to the care and rearing of children in different families, with different

household heads. But despite their frequency, such arrangements are seen as exceptions,

and the household with two parents and their children however acquired is seen as a

norm or ideal.

It might be thought that the term role as applied to parents rather than lawyers

and doctors (or actors) was at best, a metaphor that the former role was natural and

universal, the latter conventional and culture-specific. Theres obviously some truth to

the contrast, but it is greatly oversimplified. While the biological creation of children has,

until recently, been achieved only one way, the arrangements for caring for and raising

children once born have differed enormously across societies. I dont want to numb you

with pop anthropology, just to observe that roles, or types of relationships, can vary on

several dimensions.

In her neglected book on Rules, Roles, and Relations, Dorothy Emmet offers a

nice account of the notion of role and its limits:

[I]t seems best to keep the notion of role to apply to relationshsips which are

sufficiently structured to be classified under common names, which have some

pattern of conduct associated with them, recognized in the breach as well as the

observance. Otherwise, if any form of social relation, however transitory or

spontaneous, is to be a role-relation, the concept will become so all embracing as

to lose its effectiveness as a tool of social analysis. . . . . [T]his suggests that the

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more enduing forms of social relations, however deeply personal they may be, are

also role relations. Our ordinary usage as well as common law recognizes this, in

giving relations such as those of husband and wife a social recognized status with

specific right and obligations.

Likewise for parents.

A recent article on reasonable partiality and the division of moral labor (Jacobs)

contrasts roles created by a technical division of labor that is intended to maximize some

end with roles that contribute to a social division of labor, arising from spontaneous,

deeply rooted partiality. The former division is top-down, the later bottom up. Parents fall

into the latter category, lawyers into the former. But this dichotomy, while helpful, is still

an oversimplification. However deep and spontaneous their emotional source, parental

roles are profoundly shaped by social and institutional pressures.

Admittedly, it would be implausible to view the parent as a role established by a

social system designed to create, nurture, and socialize children this suggests the kind

of consequentialist justification of families that is more often ridiculed than defended.

But few roles result from a deliberate or centralized division of labor. In being justified

on the basis of a carefully balanced and structured system of roles, lawyering may be a

lonely paradigm for a top-down role. It is also a suspect one, as there is a great deal of

skepticism that the adversary system was either designed to serve, or actually serves, the

goal of justice.

What is clear, however, is that the extent to which roles are designed or modified

by law and explicit custom has little to do with how strong or widespread the sentiments

are that animate them. For various economic, social, cultural, and reasons, some forms of

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human intimacy are treated more formally than others at various times and places. Like

parenthood, friendship is a powerful and probably universal from of intimacy, requiring

significant devotion and partiality. But while some types of friendships have, at various

times and places, become well-defined roles, with formal ceremonies and specific duties

and privileges, being a friend is generally a more amorphous role than being parent, with

less definite expectations in general though perhaps not in specific friendships. This

difference may reflect the both the biological distinctiveness of the acts that make one a

parent and the social imperative of regulating procreation, child-care, and inheritance.

Unlike friends, parents play critical roles in a division of labor that promotes important

economic and social objectives. The roles of parents and children have typically been

defined in detail by law and custom; in this respect, parents are more like lawyers or

doctors than like friends.

Most important for our purposes, the duties of parents to their children, however

much they are grounded in our psychological and biological constitutions, are subject to

considerable moral debate as well as continual social revision. Since Fishkin wrote about

families as a bulwark against equality, political philosophers have attempted to set limits

on the partiality parents can reasonable exercise in a society striving for equality. In one

of the most recent and plausible of these efforts, Brighouse and Swift argue that in an

egalitarian society, parental partiality should be limited to those activities necessary to

achieve the relational goods of a parent-child relationship bedtime stories, not trust

funds -- but concede that even then, it will pose a significant barrier to equality. Parental

bonds may have unmediated moral significance (Jacobs), but the strength of the duties

they impose and the reasons for action they provide are often debatable. The man who

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rescues his wife rather than a stranger from a burning building because she is his wife

may be having one thought too many, but the man who pulls his son out of a good public

school because he can pay for a slightly better private one may be having at least one

thought too few.

We are also uncertain about the weight that parents may give their own interests

in promoting their childrens. Unlike in conflicts with the interests of justice or equality,

it might seem that less weight was always better, or at least morally safer. But feminist

criticism has raised questions about self-sacrifice or self-abnegation even as an ideal. And

some writers, like Ruddick, Schoeman, and Brighouse and Swift, argue for a recognition

of the weighty interests that parents have in raising children in ways consonant with their

own values and passions. I will argue that our judgments about the permissibility of the

bargains made by prospective parents can often be understood as judgments about the

moral requirements of the parental role.

Desperation and Exploitation

Kavka condemns the yacht-seeking couple for the misus[e] of their reproductive

powers. They exploit their unearned position of control over life for others to, in a sense,

extort an unfair price for the exercise of those powers (106). He compares the couple to

a young man who demands an enormous monopolistic price from the trustees of

cryogenically-preserved people for the life-restoring drug he accidentally discovers

reading the notes of his deceased uncle (107). Like the couple, he extorts an excessive

(and unearned) price from those to whom he provides the benefit of existence or their

representatives (108). The fact that the price is unearned in these cases seems at most an

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aggravating factor prospective parents may have earned the price they can demand by

expensive fertility treatment, an arduous gestation, or the dogged pursuit of the economic

status required to adopt. Moreover, the charge of extortion suggests a threat that need not

be present for the bargain to be wrongful. Thus, we can imagine that the parents would

choose to go childless without the deal-sweetener; that their demand is a warning, not a

threat, in Robert Nozicks sense. Still, their genuine unwillingness to assume parental

duties without the incentive or break they demand hardly makes their conduct acceptable.

So the heart of Kavkas objection -- in legal terms, the gravemen of the offense --

is that the price is excessive. I think this is right but do not think it is explanatory. What

makes the price excessive is just that it involves a derogation of the parental role. Parents

have certain inalienable duties toward their children. If we recognize those duties, we

also recognize that they cannot be bargained away, even if the bargain would be in

everyones best interests. Although we may disagree on the precise scope and nature of

those duties, it is clear that parents should not enslave their children, cause them serious

physical harm unless it is for their own good, or rear them in a perfunctory manner. But

the liberty to do these things is the price sought by the prospective parents in the three

cases; it is excessive because it releases them from a central parental duty. Releasing

them from that duty may well be in the best interests of the individuals who would be

their future children. While it is characteristic of exploitation that what appears to be

pareto optimal is also wrong, I do not think that exploitation is the core wrong in these

cases.

The first problem with the charge of exploitation is its sufficiency in accounting

for the perceived wrongfulness of arrangements that parents might seek to justify as a

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good bargain for their children. Parental conduct with equally harmful consequences to

the child is not wrongful if it is more consistent with, or in fulfillment of, the parental

role. Thus, I think we would be more critical of a social crusader, call him Ralph 1, who

was willing to have a child but could devote only 3 or 4 hours a week to her because of

his schedule, than of a family-values advocate, call him Ralph 2, who could only devote 3

or 4 hours to his first child because he had 7 others (and a day job). We assess parental

duties in the context of the families parents form; we think that parents can appropriately

create families of varying size and appropriately divide their attention among the children

they have. Parents face conflicts in resolving their childrens competition for the many

scarce goods they bestow on them, but such conflicts are inherent in parenting a family

with more than one child, and we are more accepting of conflicts internal to the role than

conflicts between the role and other responsibilities, like social activism. Perhaps families

with 8 children put too much of a strain on parental responsibilities to each child; we may

be overly tolerant of such arrangements just because of their familiarity. My interest is

not in defending Ralph 2, but in suggesting that a role justification or excuse can have

greater force than a justification or excuse based on conflicting roles or responsibilities.

If exploitation in Kavkas sense is not sufficient for the perceived wrongfulness of

the parental conduct, it is not necessary either. Prospective parents appear to be subject to

the same kind of objection as Kavkas parents when the alternative is not so grim; when

what is at stake is not existence, a benefit so valuable that any potential recipient would

pay almost any price in order to obtain [it] (108), but only the prospect of a significantly

better life than that offered by a more-than-adequate alternative. This suggests again that

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the heart of the objection is not the exploitation of desperate need, but the derogation of

the parental role.

Consider a real case involving the friends of a colleague, who were planning to

adopt a second child despite their expectation that they could never love an adopted child

in the same way as their biological one. Many adoptive parents have this anxiety, but this

couple was actually planning to be less generous with and attentive to the second child

than their first during the years when both would be in the household. They wanted their

first child to have a sibling, and reasoned that they would be giving the adopted child a

vastly better life than she was likely to have otherwise.

What bothered my colleague about their attitude was not their desire to give their

present child a sibling a common reason for having a child, with built-in reciprocity

both children get a sibling but their willingness to settle for what they saw as a second-

class relationship with their second child. Even assuming that the adoption would still be

in that childs best interests that she was unlikely to be adopted by a more committed

couple in the near future their attitude was still troubling. Moreover, it would have been

troubling regardless of how much better it would be for the child to be adopted by this

couple whether her alternative were a childhood in a Dickensian institution or just a

three or four year wait for a more loving couple to adopt her. Indeed, the less grim the

expected alternative, the more objectionable the couples conduct might appear to be.

But even if the likely alternative was a childhood in the institution if the host country

was about to end foreign adoptions the conduct of the prospective parents would seem

wrong, and a wrong to the child. The child should become a full member of the family,

with the same status as his older sibling. It might well be acceptable for the couple to act

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as rescuers, to get the child out in time for a real adoption, but this would just involve a

deferral, not a derogation, of the parental role.

Were I the childs legal guardian, I might well decide that it was in her best

interests to be adopted by this couple, and might even encourage them to adopt if they

were the only couple willing to do so in the foreseeable future. But I would still regard

their conduct as wrong my role would be to promote the childs welfare, not to prevent

the couple from acting wrongly, and this would be a case in which the two objectives

diverged. [note on role of intentions in permissibility; permissibility of getting someone

else to act impermissibly]

More broadly, the fact that parents or prospective parents act wrongly, and wrong

their children, does not imply that the state or third parties are morally, let along legally,

required to prevent continued wrongs of this sort when it is in the childs interests to let

them continue. The setback to those interests in preventing those wrongs might be great

enough to make non-intervention morally acceptable, even required. Thus, the state might

reasonably adopt a different standard for initiating parental relationships, as in adoption,

than for continuing parental relationships the harm to the child of terminating a flawed

parental relationship might be much greater than the harm of not beginning one. But the

parents are still acting wrongly, and wronging the child, even when it is right for the state

to let them continue.1

1 Its important to note at this point that even if the flourishing of children is one of thejustifications for the role of parents and the institution of the family, that justificationdoes not require that the proper execution of that role and the operation of that institutionis in the childs best interest in every case, on any plausible account of those interests.Even if the justification for establishing a role is consequentialist in this way, the role,once established, does not rely on that justification to underwrite specific duties. At thesame time, the justification for a parental role need not be rule-utilitarian the claim isnot that children are better off if society assigns their rearing to parents and families inevery case, without making a case-by-case judgment. We make case-by-case judgments

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It is instructive to compare similar dilemmas in roles that are more obviously

socially-constructed. Consider the involvement of physicians in lethal injections and

psychiatrists in torture. The AMA and APA condemn such involvement in both cases, as

incompatible with the professional roles of physicians and psychiatrists as healers. Many

physicians do engage in activities that are not strictly health-enhancing, e.g., performing

abortions, or even assisting a dying patient in a long-contemplated suicide. But most

would balk at participation in executions and torture, even if, in both cases, their function

would be to employ their expertise to reduce pain or harm. There are of course, many

types and gradations of involvement, and I do not want to argue for a particular position

in these debates. My point is only that the refusal of professionals to perform these

functions does not rest on a claim that their refusal is in the patients best interests.

While it might help end the practices of execution and torture if physicians and

psychiatrists shunned them, it very well might not, and it would almost certainly not help

current death-row inmates and terror suspects. Rather, it may well be in the interests of

those individuals to have a conscientious physicians administering the lethal injection or

overseeing the interrogation. If I were going to be executed or tortured, I would want a

palliative-care specialist or humane psychiatrist in charge. Of course, some physicians

and psychiatrists (Mengele and Karadovicz come to mind) are sadists who make things

worse for the victims, but my doctor or psychiatrist would definitely make things better,

and her conscientious refusal to take part would hardly be in my interests. But it may be

that she would nevertheless act wrongly (or at least unprofessionally) in participating. If

her role is to preserve and protect her patients physical or mental health admittedly a

for many children in many circumstances, and should perhaps make them more widelyand more often. Finally, it should be clear that the judgment of what is best for children isonly partly empirical the question of what counts as best is obviously valued-laden.

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debatable proposition -- then she derogates her role by her participation in killing them or

breaking their wills, however much her participation reduces the harm.

A third argument against the exploitation account is that non-parental roles may

permit arrangements would look like exploitative bargains if they were made by parents.

An understanding of the role is critical to an assessment of whether the bargain is fair.

Consider the role of foster parent, an increasingly critical one in a society where large

numbers of children are removed from their biological parents without the prospect of

immediate adoption. While foster care websites stress the importance of giving abused

and neglected children the gift of unconditional love, and many foster parents end up

adopting their charges, their role is not to serve as pre-adoptive parents, but to provide a

secure and loving temporary home. Indeed, prospective foster parents are discouraged

from seeing their assignment as a prelude to adoption, especially since they often assume

their role when the agencys goal is reunification with the biological family. Although the

role of foster parent is a terribly difficult and often uncertain one, it clearly does not

require those individuals to love their foster children in the same way as their own

children. One critical function of parenting is making provisions for the childs future, a

function that foster parents are generally not expected or even permitted to perform. An

upper middle class couple is certainly not expected to make the same financial provisions

for their foster children as their own children, and it might be inappropriate to do so.

Indeed, in many jurisdictions, the state provides all foster parents, regardless of income, a

stipend to cover the childs living, educational, and other expenses, although the money is

not supposed to be a bribe, or even to be spent on anything other than the foster childs

needs. In contrast, no biological or adoptive parent with the wherewithal to support his

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children expects the state to pay him for doing so. (The one-shot adoption subsidy may

reflect a concession to the demands of the adoption market.) Moreover, foster parents

often negotiate conditions on the kind of children they will take in with the placement

agency, a selectively that would be inappropriate in adoption and, until recently,

impossible in procreation.

Of course, foster parenting is a second best arrangement, but a perennial one,

since we will always have highly dysfunctional families among us. It can be argued

based on the most widely accepted work on child development -- that children need the

kind of unconditional love that only parents can provide, whether biological or adoptive.

It is not enough to have their needs met by a succession of competent and conscientious

care-givers; they require the continuous involvement and unconditional love of one or

two individuals throughout their childhood. Even more than clients and patients, they

must have a vertical relationship with their provider. This poses significant moral

constraints on collective or communal children-rearing arrangements while it may take

a village to raise a child, it also takes one or two individuals with a special relationship to

that child. But this just suggests that the role of parent, however much it has changed over

time, is less socially-constructed than some of the other significant roles in our society,

and that the psychological imperatives which dictate its construction also dictate unique

duties.

This is not to say that we have arrived at the best construction. We have no reason

to believe, and some reason to doubt, that the nuclear family in its present form, is better

for the flourishing of children and parents than, e.g, the extended family more common a

hundred or two hundred years ago. The hegemony of the two-parent, two-generation

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family, recently reinforced by the denial of visitation rights to grand-parents in Troxille,

may be a setback to the interests of children and even parents. But no improvement in the

parental role will obviate the recurring need for substitute roles, such as foster parents,

which do not require the same level of care or degree of commitment.

Finally, I think that the moral character of the family limits the kinds of selectivity

that can be properly exercised about what kind of children to create. Ive argued, with

Adrienne Asch, that parents should strive for an ideal of unconditional welcome, under

which they would set no more conditions for admitting children to their family than for

retaining them. Many people apparently find that ideal unappealing as well as unrealistic,

so rather than lobby for it here, Ill shift to sex selection. Here, most Americans find a

categorical preference for one sex problematic and oppose prenatal selection. There is

less resistance to sex-selection for family balance, but that is also problematic -- families

can be balanced by many different qualities in their children, and sex may be a poor

proxy for the qualities one might reasonably seek to balance.

But consider the social response to large-scale sex imbalances. Imagine that one

effect of global warming was to substantially increase the proportion of male births. A

society might reasonably see in this imbalance a source of social friction and instability.

If that concern was plausible, it seems to me that the society, or government, might take

certain measures that to reduce the disparity. For example, they might try to eliminate or

counteract substances in the food or water supply that reduced the motility of X-bearing

sperm. It would be far more problematic, I think, for the government to give individual

couples an incentive to have more male children, e.g., higher tax deductions or subsides

for PGD and selective implantation. Officials arguably operate under a more impersonal

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role morality than parents (see Goodin, Government House Utilitarianism) and it might

be more acceptable for them to promote the birth of male children in ways that did not

encourage or pressure parents to exercise selectivity themselves. Those officials might

also be prospective parents; if so, they should not engage in sex-selection in their private

lives. There is no inconsistency, just the demands of different roles.

Slave Children and Pregnant Addicts

It is now time for me to return to two of the cases with which I began, the slave

child and the pregnant addict. In these cases, Kavka would claim that the parents acted

wrongly by exploiting or misusing their reproductive powers. I think Kavkas account is

more plausible for the first of these cases, in which a parental-role analysis is inapt. But I

do not think the conduct of the pregnant addict can be seen in a similar way, as a misuse

of her gestational powers to strike an exploitative bargain. Rather, she acts wrongly

because she has assumed a parental role whose duties she is unwilling or unable to fulfill.

It might appear that the biological parents of the slave child had engaged in a

particularly egregious breach of their parental duties, relinquishing their child to a slave-

master. While I do think their conduct is egregious, I am not sure this is the right analysis.

It makes more sense to me to see the couple as progenitors rather than parents. In denying

that the couple have become parents, I favor an account of the formation of a parent-child

relationship in which intentions have a critical part. Even in our own society, which has

no provisions for completely surrogate procreation, I do not think that adults who do not

intentionally conceive, or consent to carrying the fetus they conceive to term, assume a

parental role when the child is born. They have serious duties to assure that the child is

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adequately cared for until he can be taken in by people willing to assume a parental role

but I do not think they must assume that role themselves, even by default. [Thank Maggie

for helping me clarify this.] We do not yet recognize a distinct role of progenitor, and, as

the debate over surrogacy suggests, we may reject so complete a divorce of procreation

from parenthood. I think, though, that the character of the couples wrongdoing becomes

clearer if we imagine that the wealthy individual intends to become a loving parent to the

child, and merely offers them a yacht as a rather generous gift for their troubles. I do not

find this an unacceptable incentive for bearing a child, at least in a society where such

transactions were permitted it would be, in Kavkas terms, a profitable use, not a

misuse, of the couples reproductive powers. [note tension with current norms]

I suspect that those who find the couples conduct reprehensible even in these

circumstances see them as treating the child like a commodity; they make the same moral

judgment that underlies the criminalization of baby-selling. I confess I am less moved by

this concern than many people. I can imagine a society, quite different from our own, in

which the role of progenitor was a dignified and solemn one, undertaken by women, or

couples, who regard themselves as performing a service no less valuable for being highly

remunerative. It might be as acceptable for progenitors as for fertility doctors to require a

fee for their services; both roles might reasonably have a more mercenary character than

the role of parents. At the same time, such progenitors would have a grave responsibility

to care for their precious cargo -- just because they were not making a commodity but

conceiving and gestating someones child. The likelihood that many woman would find it

extremely difficult to limit their involvement to gestation might mean only that the role of

progenitor was not for everyone; that, like some medical specialties, it required a rare and

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in some respects unattractive discipline and detachment. If, however, surrogate gestation

were linked as inextricably as wet-nursing with servitude or subordination, it would be a

debasing role, which could not be a source of moral duties.

I would actually be more troubled by a couple who accepted a yacht to have a

child of its own, although such bribery by prospective grandparents is commonplace. If

the yacht was just the extra push the couple needed, or offered generous compensation

for the expenses and hardships they expected to incur, it would not be so troublesome.

But if the two had no interest in having a child and did so just for the yacht a very big

one they would wrong the child in a way that the mere progenitors would not. Unlike

the latter, they would be creating an unwanted child; even if the childs birth transformed

their attitudes (and even if they had expected it to do so), the wrong would merely be

mitigated, not eliminated. Becoming a parent only because one is paid to do so is an

even greater wrong to the child than becoming the childs friend only because one is paid

to do so, and this would be so even if it was clearly in the childs interest in both cases,

and even if one subsequently became a devoted parent or friend.

In contrast, I think that the pregnant addict who severely damages her fetus by her

alcohol consumption does violate her parental duties, even though she does not yet have a

child. She has those duties because she assumed a parental role by committing herself to

bear the child. The object of her duties is in one sense obvious it is the entity, now a

fetus, who will become her child. Alternatively, it is a duty to her future child to nurture

the fetus from which he will develop. This is, however, a puzzling duty -- even without

questions about the numerical identity of the fetus and child -- because of their different

moral status (for McMahan, the difference in the strength of their time-relative interests).

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Since the fetus has less moral standing, or weaker interests, than the child, the woman

may be able to avoid breaching a stronger duty to the child by aborting the fetus.

Consider her duty to the future child if she does not abort. Whether her violation

of that duty is egregious depends on a number of considerations, including the badness

for the child of the resulting injury and the constraints imposed by the parental role on

what a woman may do to her own body to prevent such injury to her child. The first

consideration, concerning the badness of congenital impairments, is one Ive addressed

elsewhere with Adrienne Asch. For now, I will only say that it is easy to exaggerate the

badness of static physical impairments, that involve no pain or progression, and that

require no medical interventions. But fetal alcohol syndrome is not a static impairment,

and I will readily concede that it is a condition any parent should be willing to make

some sacrifice to avoid inflicting on her child.

I will focus on the second consideration: what kind and how much sacrifice the

parental role requires. Because the woman intends to bear the child, the general issue of

her rights against the fetus does not arise she has presumably consented to the routine

impositions, discomforts, and agonies of pregnancy, which I mercifully lack the first-

hand experience to assess. On the other hand, it is clear that the parental role, as least as

presently conceived, does not require that she be willing to die or incur a serious risk of

death in order to bring the fetus to term. Even our increasingly restrictive federal abortion

law permits (Carthart notwithstanding) late-term abortions where there is a significant

threat to the mothers health.

At the same time, the evolving role of mother exerts a countervailing pressure

against career-impeding sacrifices. Our conception of the maternal role has undergone a

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significant change in the past 50 years, and, at least in theory, we do not regard mothers

as required to make significantly greater sacrifices than fathers to protect and rear their

children, beyond those demanded by gestation itself. I suspect we would be less willing

to require a pregnant woman to take a leave from a dangerous job than to abstain from a

dangerous drug even if the work and drug use imposed similar risks on the fetus and

despite the fact that the latter but not the former involved the her immediate control over

her body. This difference is justifiable in terms of the maternal role as we now understand

it, not in terms of a simple comparison of maternal and fetal/child burdens and benefits.

I think the value of a parental-role account can be illustrated by the alternative it

presents to Jeff McMahans analysis of the dilemma faced by an expectant woman who

can only spare herself a minor impairment by causing a major one to her fetus. McMahan

compares two cases: In the 3-option case, the woman can take either a mutagenic pill,

which will prevent her minor impairment but cause her child a major impairment, or an

abortifacient, which will have the same effects but also induce an abortion. Or she can do

nothing, in which case she will have a minor impairment but her child will have none. In

the 2-option case, the last alternative has been foreclosed; her choice is only between the

two pills. In both cases, the woman wants a child, prefers a normal to an impaired child,

would have difficulty bearing a child if she aborted now, but most of all wants to avoid

the impairment she faces.

McMahan argues, persuasively, I think, that the interest of the fetus in being

brought to term are much weaker morally than the interest the child would have in

avoiding a major impairment; the mothers interest in avoiding a minor impairment

exceeds the former but not the latter. McMahan argues that this combination of interests

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creates a paradox (actually, several, but I will try to simplify) -- in the 2-option case,

the woman must choose the mutagenic pill, which will injure but not abort the fetus,

whereas in the 3-option case, she must not choose that pill. The paradox arises because in

the 2-option case, the woman must consider only the fetus interests, since her own are

not at stake and it is clearly in the fetus interests to be born impaired rather than aborted.

In the 3-option case, however, the counterweight to her interests is not the same for the

abortifacient option as it is for the mutagenic option. In deciding whether to take no pill

or the abortifacient, she weighs her own interests in avoiding a minor impairment against

the fetus lesser interests in survival; in deciding whether to take no pill or the mutagenic

pill, she weighs her own interests against the childs greater interests in avoiding major

impairment. Her own interests outweigh the fetus present interests in survival but the not

childs future interests in avoiding major impairment. For this reason, she may take the

abortifacient but not the mutagenic pill.

I do not think that the right choices in either case are as clear cut McMahans

analysis of competing interests makes them appear. Whether or not the woman still had a

choice to sacrifice her own interests to those of her child, her decision to abort would be a

morally problematic one. It appears to be the right course in the 3-option case, because

the mother should not continue in a role for which she is unwilling to make the requisite

sacrifices. But it is not an easy out even there, since she is abandoning a role that she has

already assumed. In the 2-option case, the appraisal of the mothers choice is affected by

the reason that the third option was foreclosed. It may be that the mother should bear an

impaired child rather than abort the fetus regardless of why she no longer has the option

of bearing an unimpaired child. But the choice appears significantly more difficult if she

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has made that option unavailable, by choosing to prevent her own impairment. Under

those circumstances, both remaining options may seem more problematic the abortion

because it allows her to avoid the moral consequences of her own self-favoring decision;

the childs birth because it forces her to live with those consequences. Before exploring

these complexities, I want to explain why McMahans analysis cannot accommodate

them.

The moral dimensions of the choices faced by the pregnant woman simply cannot

be captured by an enumeration and comparison of the interests that she and the fetus have

with respect to various options. In particular, McMahans analysis cannot explain the

moral weight of the reasons the woman has against bearing a child whose impairment she

will be responsible for causing. Since he recognizes interests but not roles, he must treat

the womans desire in the 3-option case to avoid having severely injured her own child as

just a special moralized prudential reason (647): Her reason may be, to the greatest

extent possible, to minimize her own wrongdoing or to avoid becoming a violator of

rights. This reason, he argues, will not tip the balance in favor of abortion because the

agent cannot avoid becoming a violator of anothers rights by preventing [those rights]

by preemptively killing their prospective bearer (648). So even though she might have a

powerful desire to minimize her wrongdoing in this case, she cannot have an interest in

measures that would fail to do so.

I do not find this analysis persuasive even on its own terms. If an act that would

result in a rights-violation has not yet been performed, a preemptive abortion might well

be an acceptable response to the high probability of its occurrence. If the Delphic oracle

had told Jocasta that that she would murder the child she was carrying (rather than marry

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him), it would be reasonable for her to (attempt to) avoid that result by aborting. It might

seem peculiar to allow an abortion to prevent the agents future act from violating a right,

while not allowing an abortion to prevent her past act from violating a right, especially if

the odds of a rights violation from the future act were no higher than those from the past

act. A role-morality account suggests one reason: it is more appropriate to abandon a role

if one believes one will not be able to live up to it than if one believes one has already

failed to do so but also expects that one will be able to do so in the future.

Perhaps, as I maintained in an earlier exchange with McMahan, he could treat the

injury to the fetus as a reckless attempt to injure the child an act that had could not be

undone but could only be prevented from causing significant harm. But although some

jurisdictions recognize such attempts as offenses, applying that notion to the case of

fetal injury would not help McMahan. While attempts are wrongs in themselves, even if

they have not, or have not yet, caused harm, it is often held that the agent can mitigate the

wrong and reduce his culpability by preventing the harm. McMahan would have to argue

either that such renunciation, as it is called, was not appropriate for a reckless attempt,

or that abortion was not an acceptable form of renunciation. Either response would leave

him roughly where he started. [Consider attempts by third parties that can only cause

serious harm at or after birth]

While McMahans view of preemption leaves the pregnant women to face the

moral consequences of her recklessness, it gives her an easy out if she acquires any

further prudential interests that favor abortion. For example, pregnancy complications can

rescue her, by giving her a prudential interest in terminating greater than the fetus slight

interest in continuing. But she would almost surely be invoking these additional medical

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interests pretextually her dominant reason for aborting would remain the harm to her

child and her role in causing it. McMahan, though, is concerned with the availability of

reasons, not the sincerity with which they are held; I do not see how he could disqualify

pretextual reasons. More perversely, McMahan would permit the woman to abort if the

state she lives in had, shortly before her pregnancy, criminalized maternal fetal abuse

and imposed a fine if the abuse resulted in significant injuries or impairments to a born

child. [Thank Maggie for lowering the penalty]. If the fine gave the woman a prudential

interest in aborting just slightly higher than the fetus interest in surviving, it would be

morally permissible for her to abort, even though the avoidance of the fine would be no

less pretextual a reason than the avoidance of minor medical complications. In becoming

criminally liable, the woman would acquire have the prudential interest she needed to

escape moral liability.

The mothers dilemma cannot be understood, I would argue, without reference to

her role as parent, and her special duty under that role not to harm the child her fetus will

become. An analysis of her choices in terms of her role, and the conflicts arising under it,

may not resolve the conflict, but it does avoid the paradoxes generated by a comparative-

interests analysis -- in which differences in the number and the order of options result in

differences in their moral ordering. An analysis in terms of the womans role explains

why we might find abortion permissible even in cases where the mother was responsible

for the fetal injury, but still regard that recourse as having such a painful moral residue.

A woman who has made it the case that her child will have a major impairment, whether

by taking a pill that will spare her a lesser impairment or by a bout of heavy drinking,

does not face a simple choice between a greater and lesser setback to the fetus interests.

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If she aborts, she relinquishes or abandons a role that she has already assumed; if she

carries the fetus, she preserves that role, but makes it the case that she has breached one

of its most significant duties not to cause or allow serious harm to her child, a duty that

applies even if its fulfillment imposes a significantly lesser harm on the mother.

Although (as McMahan notes), I once characterized it as ignoble and perhaps

even contemptible for the mother to preempt this breach of duty by aborting, I now think

that is too harsh a characterization. A woman who chooses not be become the mother she

was intending to be rather than to become what she reasonably regards as a bad mother is

making a terribly difficult choice. Her difficulty is highlighted by contrasting a case in

which her fetus was similarly impaired by an unavoidable infection. Most people would

be more sympathetic with the woman who chose to abort in this case, even if some think

she should have made a stronger commitment to her future child -- in sickness and in

health. In contrast, the woman responsible for injuring her fetus has already breached

the minimal duties of a parent. If she relinquishes or abandons her role, it is at least in

part to avoid the greater breach of duty involved in causing serious injury to her own

child. And yet if she chooses to continue with the pregnancy, she is putting the fetuss

interests over her own desire to avoid greater guilt and shame, and doing so may seem to

compensate morally for her making that breach, and her culpability, greater.

Nevertheless, her choice to abort should hardly be seen as the clever exploitation

of an escape clause. It is at least in part because she will be haunted by her responsibility

for causing the childs impairment that she does not want to continue in a parental role.

Indeed, she would be lacking a full appreciation of that role if she faced the prospect of

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raising the impaired child with no greater misgivings than she would have if she was not

responsible for his impairments.

Both alternatives seem less problematic in a case to which McMahan draws a

parallel, in which you wish to have a child but you have negligently, recklessly, or

deliberately acted in a way that would violate the rights of any child you might conceive,

for example, by causing the child to be disabled in a way that would violate its rights

(44). McMahan holds that despite some contrary sentiment, it would be permissible for

you to have a child thereafter, as long as you expected to have a life worth living, even

though doing so makes it the case that your earlier act will violate its rights. I agree with

McMahan that it should be permissible to have a child, but think the wrong to the child

you will complete by doing so is less grave than in the case of the pregnant addict. This is

because when you acted culpably, you merely wanted to have a child you had not yet

assumed a parental role, so you did not violate the special duties of a parent towards her

(future) child. Although by having the child, you still make it the case that you will have

caused him to be impaired, you can treat that impairment as necessary for the worthwhile

life you wanted that child to have, and so your rights violation, if any, will arguably be

justified.

It is not clear when one assumes a parental role even on an intentional account,

there may have to be an object for ones intentions before they are complete but if we

assume that you had not yet begun the project of having a child, you would not yet have

parental duties. By the time you acquired those duties, it would be too late for you to

prevent the injury to any child. What makes the decision to have a child at that later point

less problematic is not the mere passage of time since your bad act, but the fact that in

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having the child, you will not make it the case that you violated the special duties of a

parent. For similar reasons, your decision to abort would not be an attempt to escape the

special onus of having violated a parental duty. Although that decision may reflect an ill-

considered initial commitment to having a child in the circumstances, it will not be as

troublesome as a decision to abort by the pregnant addict.

Thus, a role-analysis appropriately leaves the woman with a morally ambiguous

choice, rather than the misleadingly clear directives of McMahans comparative-interest

account. Even if the woman has no opposing prudential interests, she need not do what is

in the fetuss interests; she must decide if she can continue in a parental role despite the

fact that in doing so, she will make it the case that she has caused her child serious harm.

But abandoning the role by aborting is a morally problematic choice as well, not because

her interest in aborting is less than the fetus in continuing, but because withdrawal from

the role can itself be a breach of the roles duties. She has made a binding if unilateral

commitment to carry this fetus to term. There may be many reasons for withdrawal that

are consistent with her initial commitment, or are not encompassed by it, but this does not

seem to be one of them.

In a case where the mothers alcohol consumption has narrowed her options to

abortion and impairment, other agents might reasonably make, or encourage, different

choices. If I were the court-appointed fetal guardian, I would chose impairment over

abortion if I thought the mother would accept my decision, as long as I thought her guilt

and her addiction would not make the childs life intolerable. On the other hand, if I were

the mothers psychiatrist, I might encourage her to abort, if I thought that decision would

best serve her long-term psychological health. And if I were her partner in creating the

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child but not in her reckless drinking, I might face a conflict between my duties as a

spouse and a prospective parent. To attribute such a claim of moral differences in the

choices faced by different agents to a perversely agent-centered view, as McMahan does,

is to ignore the moral significance of the roles that ground those differences.

To quickly conclude, I have not attempted to resolve difficult conflicts about the

scope and weight of the duties we have to those whom we intend to make our children.

But I hope I have suggested that an analysis in terms of the role-morality of parents may

deepen our understanding of these conflicts.

Documents

Georgetown paperRevised