The moral challenge of natality: towards a post-traditional concept of family and privacy in repro-genetics

Abstract

Modern repro-genetics is going to change the way we conceive our children, and will have a substantial influence on the family. Two concepts of the family have been present in the ethical debate: the traditional model and the care model of the family. The first one has been rightly criticized because it privileges form over function. I will show that the second model is also insufficient and does not answer to the moral challenge of human natality, particularly from a child's point of view. Instead, I will suggest a third, kinship model of the family as moral agent. In post-traditional and post-patriarchal societies, the family must be reconsidered as actor in the ethical debates. This poses a challenge for ethical theory. The family's interests are best protected by a concept of relational privacy.

Keywords:

• family
• privacy
• natality
• repro-genetics

In human reproductive medicine, the most challenging ethical questions arise in the fields devoted to human “design,” i.e. to the procreation of genetically enhanced human beings. Having discovered so much about the genetic underpinnings of diseases like cancer or dementia as well as traits like body height or sex, it is tempting to try to manipulate them genetically at a very early moment in human development. In vitro fertilization opens a window for such an endeavor. For the time being, manipulating singular traits in an early embryo for the purpose of creating specially enhanced features still seems far too risky. Not a small number of experts, however, think that we will take this path sooner or later (Buchanan et al. 2000, McGee 2000).

Renowned philosophers have dealt with the question as to which maxims should guide us ethically in these cases. Should the prospective parents be allowed to decide on their offspring's genetic make-up? The weightiness of this problem is demonstrated by the fact that political philosophers like Jürgen Habermas or Ronald Dworkin have contributed to the debate (Dworkin 2000, Habermas 2001). The necessary limitations to individual freedom or procreative autonomy are dominating topics in these debates. This is strange as reproduction is by definition – even if it was achieved through reproductive cloning – an event involving a minimum of two or three human beings. In reproduction, the moral agent is always a person-to-relation, a relative, a member of family.

In my paper, I will explain why the family as procreative entity should be considered an ethically relevant moral agent. Two concepts of the family have been present in the ethical debate: the traditional model and the care model of the family. The first one has been rightly criticized because it privileges form over function. However, I will show that the second model is also insufficient and does not answer to the moral challenge of human natality. Instead, I will suggest a third, kinship model of the family as moral agent. Even in post-traditional societies, the family should be considered a significant actor in the ethics of repro-genetics. Its interests are best protected by a concept of relational privacy.

A post-traditional concept of family as procreative entity

One cannot reproduce without genitor and offspring jointly being involved. Procreation creates kinship, a social and cultural institution based on the idea of permanent bonds mediated through the bodies of both genitors and offspring, shaping the nature, biography and identity of the persons involved. Compared to everyday encounters between fellow citizens, bonds through human procreation imply extraordinary responsibility and care. Procreation thus creates a singular, culturally significant alliance of human beings in society.

No wonder ethicists again talk about the family. However, the traditional institution of the family as married heterosexual couple with children has lost its pervasiveness. The notion of family has become notoriously vague, encompassing a multitude of ways of living together, ranging from so-called “traditional” or “nuclear families” to communes of adults without any offspring at all (Nelson and Nelson 1995). The traditional family has been rightly criticized as a repressive middle-class institution perpetuating the dominion of men over women and privileging certain types of sexual relations (Okin 1989, Nelson 1997). Against this perception, feminist ethicists have stressed the importance of freely chosen relationships and care as the basic characteristics of families. They endorse “privileging family function and not family form,” as Martha A. Fineman has put it (Fineman 1999, p. 1211). Iris Marion Young promotes a care model of the family, defining family as

people who live together and/or share resources necessary to the means of life and comfort; who are committed to taking care of one another's physical and emotional needs to the best of their ability; who conceive themselves in a relatively long-term, if not permanent relationship; and who recognize themselves as family. (Young 1997, p. 196)

This definition captures a variety of socially accepted forms of living together. However, it still mirrors an adult's view and looks at the family from a perspective of individual choice. Yet for children, families are not an issue of “commitment,” “conception,” or “recognition.” Children are born (or adopted) into situations they have not chosen. Being born means becoming part of a social system of ancestors and descendants, provenance, religious observance, ethnicity, cultural values, etc. Imagine a “savior sibling” born into an immigrant family in the UK, or a Brazilian boy adopted into an Israeli family. They may perhaps later choose a family when they become adults, but they cannot do so when they are young and the family they are raised in will inevitably shape their identity, biography and sense of belonging. Young's definition does not capture the view of children nor the meaning of family in a very general sense, as all of us have once been children born into families.

So even if we favor a post-traditional understanding of the family, and I am convinced we should do so, we have to account for the family as something that is not individually chosen, where the child is given a place in the world that shapes its identity and where bonds of kinship and relatedness are created without recourse to an individual commitment. I call this the kinship model of the family. From the perspective of the child, kinship is not a matter of individual choice. Genetic and reproductive bonds are particularly relevant for this understanding of the family – not because they are “natural,” but because they culturally mediate our concept of the social place and space we belong to (Franklin 1997, Haimes 2003).

The kinship model of the family points to the moral dimension of unchosen and irrevocable intergenerational relationships. In an essay on “The need for more than justice” Annette Baier has identified this feature as the most relevant aspect of human existence not being accounted for in liberal morality (Baier 1987, p. 54). Baier was one of the first ethicists to react to Carol Gilligan's pathbreaking work in moral psychology, In a different voice, stressing the moral exigencies of close and unequal relationships and the relevance of care. Care ethicists, thereafter, have described much of the moral features of the parent–child relationship. Most importantly, they have shown that the moral minimum of caring relationships is not respect for autonomy or mutual non-interference, but responsibility for the well-being of others in line with the care for oneself.

Yet care does not render the full moral meaning of kinship. In care ethics, the perspective of the carer is still the dominant one. Some proponents even espouse it as a theory of female morality as women traditionally have been in charge of caring relationships. This has evoked two types of criticism: that care reinforces the dependency of the cared-for and that it essentializes and thus reinforces old-fashioned gender roles. Trying to elude these problems, care ethicists tend to oscillate between acknowledging the reality of human dependency on one hand and criticizing power relationships on the other. Yet, from the point of view of the newborn child, dependency and unchosen, irrevocable bonds are the very features that, for them, constitute meaningful relationships and personal identity.

Liberal ethicists, on the other hand, tend to view this as nothing but an obstacle to free and individual choice. They seek to compensate for the autonomy deficits resulting from family relations by surrogate decision making or anticipated consent (Gesang 2006). Habermas, for instance, suggests that genetic engineering of the embryo could only be justified when there are strong reasons to believe that the future adult would consent to the manipulation. However, the principle of autonomy cannot help overcome the predicament of natality for the very reason that individuals can never justify ex post what has befallen them at the very beginning of their existence. This is not to say that liberal ethics is per se inadequate but to indicate that it reveals some major problems with regard to close and unchosen human relationships. Natality is not just an oppressive condition to overcome – as some child liberationists have put it – but the origin of a fundamental moral relationship. Natality is a striking condition of human existence and its moral meaning is worth considering (Lütgehaus 2006). Kinship through natality engenders the family as moral space.

The post-traditional family as moral agent

Until now, ethical theory has conceived of families as either the private domain of the pater familias or as an assembly of individuals. In traditional approaches, the existence of families could be disregarded as they were thought to be fully represented by the head of household, i.e., the husband and father (see Baier 1987, p. 51). By appealing to the head of household as the morally relevant agent, the family could be assimilated into the realm of an individualistic ethics. Yet, today as patriarchal society is slowly but surely vanishing into thin air, the moral challenge of the family becomes evident. Trying to solve this problem by equating the family with an assembly of morally relevant individuals, however, does not respond to the relevant moral issues. In particular, it disregards the proper moral needs of children.

The post-traditional and post-patriarchal family as moral agent displays characteristic features. For the purpose of this article, I am interested in those traits that, from an ethical point of view, distinguish the family as procreative entity from other moral agents in general and from other close human relations as between friends or lovers in particular. These traits are: its status as a group, its being based on the idea of permanent, irrevocable, non-chosen bonds, its implying a personal and comprehensive, but not egalitarian responsibility and care (Schoeman 1980). Compared to the paradigmatic moral agent in medical ethics, the detached and disembodied autonomous individual, the family is a fascinating alternative.

By singling out this understanding of family, I do not want to imply that it is morally superior or that it is somehow derived from nature. My aim is to examine the social relevance of natality and unchosen bonds for the moral understanding of the family. How would this perspective change our discussion about the ethics of gene technology and human reproduction?

The morality of the family copes with the fundamental dependence of the child, being born into and raised in a world the child has no influence on. This is compensated for by an all-embracing responsibility on the side of the parents which will be made up for when the grown-up children become parents themselves, thus linking themselves to a diachronic moral chain of beings.

The family observes an ethos of collectivity. Members are responsible for the well-being of all of them without compromising the interests of anyone. Members are motivated to promote the moral good of the family by mutual care, personal affection, and bonds of love. The overarching aim is a flourishing of loving relationships, thus distinguishing the family from a club or a company with similar but not identical moral values. To analyze its moral laws, one has to draw upon a kind of group theory, a theory that accounts for interrelationship and collective existence (Smith 1993, Wiesemann 2006).

Parents are responsible for their children, i.e. they have to take care of the present and future of each and every child as well as their relationship now and tomorrow. If a child is to be born, questions the parents-to-be usually ask themselves are: Will I be able to care for my children? Am I strong enough to take on responsibility for the well-being of my family? Will my family continue to flourish? These are fundamentally moral issues derived from the particular morality of the family.

This is not to say that in practice every family lives up to these expectations. People will, in reality, sometimes fail to fulfill these high moral requirements. We know that parents, albeit rarely, neglect or abuse their children. The same is true for other moral principles as, for example, truth-telling: we know that we should always abide by the truth, but occasionally, out of convenience, thoughtlessness, or purpose, we lie. Nonetheless, like the ideal of truth-telling, the moral ideal of family responsibility is present in everyday life and guides the actions of family members.

Most of us will try to live up to the ideal of family morality, as we all have parents and some of us have children, too. But we are also individuals. In private, everyday life, we have to bring in line both the individual and the family perspective. As individuals, we might understand ourselves as self-determined and autonomous; as members of a family we belong to a family identity, history and affiliation that requires us to comply with different moral rules. A young woman, for example, might act as an autonomous person when applying for a new job and, at the same time, be deeply connected to and responsible for her two children and her mother, all of them living together and caring for each other. A comprehensive ethical theory will have to deal with this ambiguity of moral life.

Family privacy

To account for the moral constitution of childhood, the family has to be considered as a moral agent per se with traits distinctive from those of individual human beings. This is the very challenge of post-traditional, non-patriarchal societies where family needs can no longer be simply represented by the family patriarch. The family is characterized by intimacy, identity-shaping bonds, relatedness, and collective responsibility. It is a moral space adjusted to the fact that we are born beings. The moral principle most adequate to protect this space and respect its ethos is relational privacy. The right to privacy, as Radika Rao puts it, “should not attach to isolated individuals; it belongs instead to close relationships, fostering intimate associations that mediate between the individual and the state.” Privacy is a relational right that “affords the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference” (Rao 1998, p. 1103).

The idea of family privacy was already – albeit indirectly – expressed by the human rights movement. Historically, the family as moral space for human reproduction was frequently the object of state intrusion. From a human rights perspective, privacy and the family therefore have for long been thought together. The notion of family as procreative entity is represented in Article 16 of the Declaration of Human Rights by the United Nations (1948):

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family …

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The purpose of this paragraph is not to forever fix the “traditional family,” but to protect its privacy against state interference as is demonstrated in Article 12, where privacy and family are treated analogously:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Fifty-five years later, the same equation can be found in Article II-7 “Respect for private and family life” of the Draft Treaty Establishing a Constitution for Europe by the European Convention (2003):

Everyone has the right to respect for his or her private and family life, home and communications.

Here again, the family is subject of particular legal protection as in Article II-33:

The family shall enjoy legal, economic and social protection.

These human rights reflect common threats against family privacy in twentieth-century totalitarianisms which considered the family an ideal sphere of indoctrination. In the former German Democratic Republic, for example, children of ideologically dubious individuals could be ripped out of their family and given for adoption without them ever knowing their real parents. In China, the one-child policy has led to forced abortions and sterilizations. Medicine itself has played a rather questionable role in these cases. Physicians often acted as representatives of ideologies and state interests instead of protecting their patients. In German National Socialist dictatorship, physicians supported eugenic laws like the Erbgesundheitsgesetz (“Hereditary health law”) from 1934. They reported families with so-called hereditary diseases like epilepsy or alcoholism and wrote expert opinions for trials that justified forced sterilizations (Schmuhl 1987). These examples from history illustrate the immense political relevance of family privacy for democratic societies.

Yet, family privacy is a contested concept. Some critics argue that today it is but a means to perpetuate repressive and unjust family relations. This critique refers to the traditional or “nuclear” family where women were dominated by their husbands and deprived of equal rights. Feminists have thus for a long time strived to make private relations an issue of public morality (Bethke-Elshtain 1982, Okin 1989). Others argue that family privacy is irrelevant. For them, family relations are a question of individual lifestyle and choice, and privacy, therefore, is an irrelevant concept because it can easily be replaced by the concept of individual rights (DeCew 2006, Levit 2009).

Instead, I argue that in the era of the post-traditional and post-patriarchal family, privacy becomes most relevant. We have already shown that even when women's rights are acknowledged and reproduction is no longer restricted to heterosexual married couples, the notion of family maintains its relevance when we look at the family from a child's perspective. The family is the cultural and social unit for human reproduction that transcends individual choice and always effects at least two human beings in intimate relation. Its intimate, relational, trans-individual space must be specially protected. The concept of privacy makes it possible to focus on the relational entity and on the interrelationship instead of the individuals involved. So the post-traditional family as procreative entity is not just a relevant social institution but also the proper realm of the concept of privacy.

Family privacy protects the social space where adults envision and engage in a lifelong relationship to children based on the idea of bodily intimacy, personal responsibility and loving care. The social meaning of the body is particularly relevant for our conception of what constitutes privacy with regard to reproduction. The body is means and medium of family relations, of our next of kin (Hauser-Schäublin et al. 2001, Schicktanz and Ehm 2008). This does not foreclose social parenthood as for example established by adoption. We highly value social parenthood and, in conflict, we often even tend to privilege social parents over their biological counterparts. However, social parenthood, like, for instance, in adoption is modeled on its biological prototype, that is to say it is similarly understood as intimate and permanent.

The family should be considered a proper player in the ethical debate, representing more than just the individual or societal perspective. In repro-genetics, the ethical debate balancing rights and interests should include the family as bearer of privacy rights. Ethical questions should not only touch individual rights, but also family interests. For instance: Does family privacy include the right to decide on the genetic disposition of the child? Is prenatal and preimplantation genetic diagnosis a matter of parental responsibility and family privacy or a matter of the rights of disabled persons and the dignity of human beings? These questions can only be answered if we fully understand the moral rules that guide the family. The ethical analysis will be richer if we refer not only to the individuals involved or to society – as e.g. Habermas does – but also to the family as sphere of privacy (Steinfels 1982).

The debate so far has spared the problem of how the interests of individuals, families and society can be balanced. Radika Rao, for one, suggests that “the right to relational privacy ends once individuals entwined in a close relationship assert contradictory interests” (Rao 1998, p. 1106). However, this would only apply to adults able to consent (or dissent) and thus again emphasizes the individual perspective. But how to resolve conflicts within the kinship model of close human relationships? These relationships cannot easily be transformed into two dissenting individuals. The lack of theory in this field is particularly alarming as we will be confronted with a surge of problems resulting from genetic design and genetic enhancement. Only in post-traditional societies, conflicts within the family can be rendered truly visible and open for moral consideration. However, this will not happen if we conceive of the family as an association of individuals.

The family as moral space for those relations that are not based on consent calls for another set of moral rules. It is not within the scope of this article to fully develop these rules. My aim is to show that even in the post-traditional society this space calls for special protection and such a protection is not sufficiently achieved by appealing to individual rights. As reproductive medicine and gene technology are ever expanding, and national legislation adapts, a comprehensive theory of family as moral agent and of family privacy is urgently demanded. An individual rights approach alone will not do in these cases. The privacy rights of families, too, have to be taken into account. This will provide physicians and ethicists with a richer account of the moral issues at stake.

Conclusions

The implications of futuristic reproductive technologies like human genetic engineering have become a challenge to ethical reasoning. Individual autonomy, and in particular reproductive autonomy, has been proven an important ethical principle to safeguard individual privacy against societal interference. However, principles now are becoming dubious for their very aim to protect individual choices. If we were able to beget and give birth to specially “designed” children, should we be allowed to choose to do so, on the basis of the very principle that prevents the state from acting in the same way? Some have criticized this as “eugenics by the backdoor,” pointing to the dangers that stem from societal expectations and collective behavioral constraints implicitly guiding individual choices (Raz 2009).

German philosopher Jürgen Habermas has pointed to another lingering effect of positive eugenics. By designing the genetic make-up of our offspring, we might undermine the natural basis of our moral self-conception. However, the consequences this criticism implies are ambivalent: in order to protect the moral autonomy of the offspring, the autonomy of the genitors with regard to reproductive choice has to be severely impaired. Habermas’ approach rests upon the idea of the individual as moral agent. In genetics and reproductive medicine, however, the moral agent is always a person-in-relation, a relative, a family. Parents act on behalf of a family. Reproductive choices create and pertain to families. In this paper, I have examined how the ethical debate changes if the relevant moral agent would be considered not an individual (which, in any case, for the time being is impossible) but a family. What if privacy, usually interpreted as an individual moral right, is applicable to families, i.e. to a different type of moral agent?

Family is a multifaceted notion with different meanings in varying contexts. For the purpose of this analysis, I have focused on the family as a basic unit of human reproduction. Until now, the family has been defined from an adult's point of view. Two concepts have been prevalent in the debate: some stick to the idea that a family is represented by the traditional heterosexual, married couple; others suggest that it is best conceived as a group of persons whose gender and sexual orientation is irrelevant, but who are committed to live with and care for each other. In post-traditional, post-patriarchal societies that concede equal rights to both sexes, to homosexuals, and to children born to unmarried couples, the first perspective is no longer convincing. The second perspective, however, stresses mutual agreement, commitment and choice and thus misrepresents the particularly challenging moral features of the family. From a child's point of view, family relations necessarily and inevitably transcend individual choice. The moral challenge of the family in post-traditional societies is that it is based on the idea of non-chosen, permanent, irreversible and identity-shaping bonds. The ethos of the family copes with this predicament of natality.

The family as procreative entity can be understood as a moral agent in itself. The idea of the family as a moral agent is important because it allows respecting children as morally relevant qua being children, whereas in an individualist ethics, children either count as future adults or have to be represented by other adults. Yet children are not just very young adults – this triviality holds true in ethics, too. Unlike adults, young children are in permanent need of others, they are born in an environment that shapes and molds their identity without asking for consent. Their very existence is marked by an irreversible, unegalitarian relationship to adults. Whereas adult encounters can be framed in liberal philosophy, those between parents and offspring cannot (Baines 2008).

Ethics is in need of a principle or right that reflects the particular role of the family as moral agent. I have suggested that this principle is family privacy and outlined its features. Family privacy is more than just the sum of the privacy rights of the individuals involved. Family privacy protects the small group of human beings attached to each other through reproduction and care. It demands respect for the idea of a lifelong commitment and bonds that are not chosen but given.

The concept of privacy was essential to guard families against state interference, as has been demonstrated in twentieth-century totalitarianisms. But even in the democratic societies of today, it remains relevant. This particularly holds true with regard to the physician. The physician's role is ambivalent. On the one hand, medicine plays a decisive role in the public sphere, defining for instance what counts as illness and what does not. On the other hand, physicians are moral agents in very private settings and intimate human relationships, such as when delivering a baby. A theory of family privacy would also have to deal with the role of the physician as advocate of the patient-in-relation.

Modern repro-genetics is going to change the way we conceive our children and will have a substantial influence on the family. When pondering the moral consequences of these technologies an individualistic approach alone will not suffice. Until now, the views of adults have dominated the debate. In order to represent the interests of families in general and children in particular, family privacy will have to be considered, too. We are in need of a comprehensive theory of family privacy and the way it could be balanced against individual rights. In particular, we have to explore how conflicts between family relations might be resolved that cannot be framed as dissenting individuals. If we truly respect the needs of children, the time for this endeavor has come.