Justin Horky Paper # 2 Question Topic # 1 11/21/12

The State and Parental Rights

The ever-quickening, onward march of science has brought innumerable benefits

to modern society thanks to new technologies but those benefits have been accompanied
by an equally long list of moral quagmires which those very same technologies have
placed front and center by giving us the ability to perform many morally questionable
actions. One of the most fertile sources of such controversies is the burgeoning field of
biomedical enhancements which would allow us to improve our various physical and
mental capacities by making physiological changes to ourselves. The moral and
prudential permissibility of making such changes has been ably defended by writers such
as Allen Buchanan. However, these writers have done such a thorough job defending
the moral permissibility of people making such physiological changes to themselves by
pointing to the benefits and possibilities of biomedical enhancements that these defenses
raise a question which these authors do not deal with: if biomedical enhancements are so
beneficial, would it be morally permissible for the state to mandate their usage?
Specifically, if a safe drug existed which could raise the IQ of a person when
administered to him as a child, should the government require that this drug be
administered to all children or a subset of them? As I will argue in the rest of this paper,
as wonderful as biomedical enhancements may be, the answer to this question, except
with regards to children who are born with abnormally low IQs, is 'no' because such a
requirement would amount to an interference of the right of a parent to raise his or her
children which is not justified by any reasonable public interest.
The scenario outlined here requires us to go beyond discussing the nature of
biomedical enhancements; indeed, that issue now emerges as a merely secondary
consideration compared to the more pertinent questions raised by this scenario, namely:
'what is the nature of parental rights?' and 'what is the nature and purpose of the state?'
A state mandate requiring that all children or even just a large group of children be
administered such drugs obviously presupposes expansive state powers, such as the
power to buy or subsidize this drug for children of poorer families using general funds
because the state cannot reasonably require that people engage in an activity which they
cannot themselves afford. And any question concerning the permissibility of the state
requiring minors to undergo various procedures obviously raises the question of how the
parents fit into this picture and what rights, if any, they have to say 'no' to the state. The
nature of the state and of parenthood are remarkably open-ended inquiries so I will zero
in on what I take to be the most general aspects of the nature of the state and family from
a liberal point of view and how these aspects can be used in answering these questions.
The entire notion of biomedical enhancement speaks strongly to the notion of an
autonomous individual who is completely capable of determining his own self and his
own fate. As Sandel puts it: “There is something appealing, even intoxicating, about a
vision of human freedom unfettered by the given...It is more plausible to view genetic
engineering as the ultimate expression of our resolve to see ourselves astride the world,
the masters of our nature” (Sandel, pg. 62). For Sandel, this striving is not something
that is admirable but rather reflects a sort of hubris or unwillingness to accept the
’unbidden.’ But there is something unmistakably similar to this striving and the noble
Kantian notion of oneself as an autonomous individual endowed with dignity because of
a capability for acting outside the bounds of the mechanistic laws of nature and the
heteronomous inclinations of desire, an individual who refuses to be bound by ‘the
given.’ This conception of oneself as someone who is not beholden to any dictates of
nature grounds the liberal tradition and it is this conception which I believe will provide
us with a theoretical framework for making sense of what demands the state can and
cannot make upon its citizens and their children.
The liberal tradition views the relationship between the Good and the Right so
that, as Rawls so famously put it, “the Right is prior to the Good.” Rawls’ theory is a
beautiful example of just what exactly this means: behind the veil of ignorance, our
representatives have no way of knowing what our life plans are or what we subjectively
consider the Good to be. Hence, they bargain to set up a system of rights within which
the social primary goods will be distributed in a manner which makes a pluralist society
possible. From Hobbes to Kant, the main point of the liberal tradition is that the
government acts as a arbiter of some kind which people have instituted to protect
themselves from one another and enemies abroad so that they may pursue their own life
goals within a neutral legal framework. Regardless of whether the theorist believes the
state was brought about by a literal social contract, civil society is perceived as a sort of
contract or treaty amongst its citizens to live in peace and tolerance of one another, a
contract which the state or sovereign enforces. The normativity of the state is grounded
in the fact that we, as free individuals, voluntarily choose, whether actually or
hypothetically, to enter into this contract, making it binding upon us through our own free
will. This way of understanding duties that we owe to the state naturally unfolds from
this way of understanding ourselves as free, self-determining individuals.
If this is the general liberal conception of the state, then what is the liberal
conception of a family? The purpose of a family, we are often told, is to set up the
structure within which healthy children can be created and raised, thus propagating the
future of the society. Rawls himself tells us that “...essential to the role of the family is
the arrangement in a reasonable and effective way of the raising and caring for children,
ensuring their moral development and education into the wider culture... Moreover, the
family must fulfill this role in appropriate numbers to maintain an enduring society”
(Rawls, pp. 162-163). But surely this is not the only purpose of a family because we still
allow couples incapable of having children themselves (the elderly, the infertile and,
increasingly, homosexuals) to marry and create what we consider respectable family
units. The notion of the family as a source of future generations is no doubt essential on
a macro scale but on a micro scale, there are other justifications for them. Furthermore,
whatever merits there may be to viewing civil society and the state as a sort of contract,
obviously, in modern society marriages are no longer viewed as contractual in nature,
even if the exchange of vows can be viewed as a analogous to a contractual exchange to
honor and support one another; rather, these relationships are, or at least they are
supposed to be, grounded in authentic love between partners, a fulfillment of the natural
human yearning for intimacy and companionship.
However, when children enter the picture, it is now possible to see a real
contractual element enter as well. Spouses who freely elect to enter into a marriage and
then have children incur a moral obligation to maintain that marriage, Julian Savulescu
argues, because of the harmful effects that divorce can have upon those children: “The
parent elected to enter the marriage in the first place...in full knowledge that it might
grow tough; the child did not elect to be born and came into the world totally dependent
upon parental care... So, we do agree that the flippant abandonment of a marital
commitment, due to one's own private sense of lack of satisfaction and under the
misguided impression that “the children will be fine,” would be a serious dereliction of
one's responsibilities toward one's offspring“ (Savulescu, pp 8-9). In both a contract and
in a marriage in which the parents voluntarily have children, we see parties entering
voluntarily into an arrangement where they incur duties and obligations; in the case of
parenthood, those obligations are moral duties that a parent owes to one’s offspring.
But where exactly do these “responsibilities toward one’s offspring” that
Savulescu mentions come from? Obviously, this view of a parent owing moral duties
towards children depends upon viewing children as moral agents of some kind but
unfortunately, the exact moral status of a child brings up numerous difficulties, many of
which are related to the abortion controversy. If we define a moral agent as one that has
rationality, this seems to leave infants and many small children out of the picture; if we
define a moral agent as anything which could someday have rationality, then it seems we
have cast our net too widely because we have now conferred moral status to all of the
children who could be hypothetically born. And if we define a moral agent as one that
that has the DNA of Homo sapiens sapiens, even if it is not yet capable of rationality or
self-consciousness, then it seems we have cast our net both too widely and too narrowly,
ensnaring human tumors and leaving out rational, self-conscious aliens. Here in the
United States, the most religious of the Western nations, I suspect many parents
sub-consciously adopt the view of Locke, believing that children are not owned by their
parents but rather are, like everything else, the handiwork and property, and thus equal
moral subjects, of God who temporarily leaves that child in the care of its parents until it
comes of age. But regardless of wherever a child’s moral rights (and our moral rights)
come from, we all at least have a deep moral intuition that a child, at least after it has
been born, is a moral agent who we all owe duties to and to whom that child’s parents
especially owe duties of various sorts. In other words, the child is a source of moral
obligation, just as a contract is a source of legal obligation.
But if a child gives its parents moral responsibilities, this would also seem to
grant the parents parental rights over how the child is to be raised. Under the principle
of ‘ought implies can’ it seems that to tell someone that they have a moral and legal
responsibility to do something implicitly conveys the message that they also have a right
to do that thing, a right which guarantees them the moral and legal ability to even
perform that action in the first place. To say ‘you have a responsibility to care for this
child’ implies that ‘you also have a right to care for it.’ Some people may think that it is
strange to speak of rights which we are morally and legally obligated to exercise but I do
not share this intuition; a case can be made that the citizens of a democracy who have the
legal right to vote are morally obligated to do so; furthermore, in countries like Australia,
they are also legally required to do so. Consider also Hegel’s argument that a person
who has committed a crime has a ’right’ to be punished because a refusal of authorities to
do so is an insult to the criminal’s status as an equal moral agent of the community whose
free will endowed him with the responsibility to not commit the crime in the first place.
 Here then, is our model of the relationship between a family and the state in a
liberal society. A marriage in and of itself is grounded upon love and affection but
when children are brought into the picture, that marriage becomes characterized by
responsibilities that change the marriage into something akin to a true contract. And it
is the state’s duty as arbiter to ensure that this ’contract’ is honored by all parties; thus, if
the parents neglect their child, the state follows up with the appropriate punitive
measures.
But how wide of a scope do the parents have in raising their child before the state
can step in and find them in violation of their duties? The state within any liberal
society draws it power from the people, acting as the corporate body of the citizenry.
When it wields the monopoly which it alone has on force in the enforcement of laws and
regulations, it does so in the name of the people. But if it is to truly act as a corporate
body, it must work from justifications and principles of reasoning which all reasonable
people within a pluralistic society can assent to (Rawls, pp. 26-29). Hence, the bar for
adequate parenting must be relatively low. Everyone agrees that physical abuse and
malnourishment are breaches of a parent’s duties towards his children but it cannot be
considered an abuse punishable by a public body to not give a child a religious education
or to not give a child a vegetarian diet. Parents must have relatively wide latitude in
exercising their rights to make decisions concerning their children if the state wishes to
avoid unfairly endorsing any specific conception of the Good.
What public principles of reasoning could the state draw upon to justify
administering an IQ drug to all children? Obviously, appeals to specific religions or
cultures would not work. Perhaps the state could use the same reasoning that it uses to
justify vaccination programs, i.e. the necessity of warding off a dangerous public threat
like disease. But what dangerous public threat could an IQ drug be directed against?
A technologically superior enemy? If the state can justify ignoring the wishes of parents
who do not want their children to use such a drug in the name of national security, it can
justify anything and thus it is hardly any longer a corporate body responsible to its
constituents; the same goes for justifications that appeal to the magnificent economic
consequences of a future powered by drug-induced super IQs. The only public
justification which seems reasonable would be one in which such a program is targeted
towards children with abnormally low IQs because here it would seem to be the case that
a parent who has access to a drug that could help her cognitively handicapped child but
refuses to do so is truly letting that child down by passing by an opportunity that could
allow that child to live a normal life. But justifying a requirement that parents be
required to eliminate a handicap their child suffers from if the resources to do are
publicly available and requiring that parents give a booster to an non-handicapped child
are a world apart from one another.
Therefore, if we are to take seriously the idea of the government as a corporate
body that represents all of its citizens, we must accept that parents, in exercising their
right and responsibility to care for their children, have broad latitude in how to do so and
therefore have the right to turn down a mandate requiring the usage of such a drug.