Published online by Cambridge University Press: 14 December 2011
The question of ownership—property rights—is important in addressing many issues of public policy. But the attempt to subsume all questions of rights under what I describe as “the property paradigm” exerts a distorting influence on debates about a variety of complex moral issues. More specifically, I argue that the application of the property paradigm deformed discussion of the nature and basis of parental rights. The claim that parental rights are not best understood as property rights is now widely acknowledged. However, while the property paradigm exerts only vestigial influence on contemporary discussions of parental rights, it still exerts a significant distorting effect on discussions of reproductive rights. I argue that focusing on the question of the ownership of gametes, in particular of sperm, tends to warp the moral dialog concerning reproductive rights. Those sensitive moral debates are better framed in terms of individuals' legitimate interests than in terms of property.
1 See Hohfeld, Wesley, Fundamental Legal Conceptions as Applied in Judicial Reasoning and other Legal Essays, Cook, Walter, ed. (New Haven: Yale University Press, 1919)Google Scholar. Hohfeld provides an analytical tool for understanding various rights in terms of four “incidents”: privileges (sometimes called “liberties”), claims, powers, and immunities. The view that property is to be understood in terms of a cluster of rights is not uncontroversial. See for example Lloyd Gerson's “Who Owns What? Some Reflections on the Foundation of Political Philosophy” in this volume.
2 Honoré, A. M., “Ownership,” in Guest, Anthony G., ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961), 107Google Scholar. Honoré's analysis presents a plausible proposal for understanding relatively modern conceptions of property and ownership in European and Anglo-American societies. Western conceptions of ownership and property have changed over the millennia. See, for example, Schlatter, Richard's Private Property: the History of an Idea (New Brunswick: Rutgers, 1951)Google Scholar.
3 For ease of exposition, I will often speak only of the cluster of rights of ownership, omitting explicit mention of those incidents of ownership that are not rights. Unless otherwise indicated, I mean throughout to be speaking of all of the incidents of ownership, not merely those that are properly considered rights.
4 Honoré calls the right to possess “the foundation on which the whole superstructure of ownership rests.” See Honoré, “Ownership,” 113.
5 This seems to be Honoré's considered opinion. For example, he says, “the listed ingredients are not individually necessary, though they may be together sufficient, conditions for the person of inherence to be designated ‘owner’ of a particular thing in a given system. As we have seen, the use of ‘owner’ will extend to cases in which not all the listed incidents are present.” Ibid., 112–13. He does, though, insist that they are “necessary ingredients in the notion of ownership, in the sense that, if a system did not admit them, and did not provide for them to be united in a single person, we would conclude that it did not know the liberal concept of ownership, though it might still have a modified version of ownership, either of a primitive or sophisticated sort.” Ibid., 112.
8 This is overly simplistic. Clearly, to the degree that we recognize intellectual property, we recognize that the rights that determine that the rights of ownership of this form of property are quite different from those of physical property. I am inclined to infer from this that intellectual property is, itself, a bit toward the edge of the property paradigm; it is not the central case of our concept of property. But, in any event, my puzzle cases concern physical property and, so, my claim need only be about our tendency to think of all physical property as involving roughly the same sort of rights.
10 Filmer, Robert, Patriarcha: of the Natural Power of Kings (London: Richard Chiswell, 1680), 12Google Scholar.
13 Tyrrell says: “Some Writers therefore think they have done sufficiently when they tell us, that the Father hath an absolute Dominion over his Child, because he got it, and is the cause of its being. By this Argument the Mother hath greater Right over the person of the Child, since all Naturalists hold the Child partakes more of her than of the Father; and she is besides at greater pain and trouble, both in the bearing, bringing it forth, nursing and breeding it up.” Ibid., 14.
15 Tyrrell proposes that:
… the highest Right of Parents in their Children, doth arise merely from their discharge of this great Duty of Education, as may appear from this Instance, Suppose the Parents not being willing to undertake the trouble of breeding up the Child, do either expose it, or pass over their Right in it to another, as soon as it is born; I desire to know if the person that finds this Child, or he to whom it is assigned, breed it up until it come to have the use of Reason, what Duty this Child can owe his Parents, if they are made known to him? Certainly, all the obligation he can have to them, must be upon the score of their begetting him; which how small that is, you may observe from what hath been said before: nor can the Parents claim any further Right in this Child, since by their exposing and granting it away, they renounced all the Interest they could have in it; so that the Duty and Gratitude he should have owed them, had they taken upon them the care and trouble of breeding him up, is now due to his Foster-Father or Mother, who took care of him until he was able to shift for himself. From whence it is evident, that the highest Right which Parents can have in their Children, is not meerly natural, from generation; but acquir'd by their performance of that nobler part of their Duty. And so the highest Obedience which Children owe their Patents, proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents, for the trouble and care they put them to in their Education. (Ibid., 14–15)
17 See Hubin, Donald C., “Parental Rights and Due Process,” Journal of Law and Family Studies, 1, no. 2 (1999): 126Google Scholar.
18 Locke, John, Two Treatises of Government (New York: Cambridge University Press, 1960)Google Scholar.
22 Okin, Susan Moller, Justice, Gender, and the Family (New York: Basic Books, 1989), 74–88Google Scholar. Her suggestion that it is a problem that was obscured by the degree to which political thought was male dominated is undermined, I think, by the fact that the issues were treated with some seriousness by the 17th-century philosophers mentioned above as well as by Nozick himself. Nozick's treatment is quick and breezy, of course, but given the style of Anarchy, State, and Utopia, that is no indication that Nozick does not take the matter seriously.
23 In deducing the latter claim, Okin relies on the claim that a woman's labor in gestating and bearing a child is a clear case (“a paradigm” she says) of the sort of labor that the theory acknowledges gives one ownership in the product of the process. (See Okin, Justice, Gender, and the Family, 83.) And, furthermore, it is the woman alone who does this, employing sperm that she has acquired through a legitimate transfer—either as the result of a gift or a purchase. This latter claim will occupy us anon.
24 See, for example: Andersson, Anna-Karin, “An Alleged Contradiction in Nozick's Entitlement Theory,” Journal of Libertarian Studies, 21, no. 3 (2007): 43–63Google Scholar; Beckman, Ludvig, “Rights, Rights-Talk, and Children,” Journal of Value Inquiry, 35, no. 4 (2001): 509–15CrossRefGoogle Scholar; Perrett, Roy W., “Libertarianism, Feminism, and Relative,” Journal of Value Inquiry, 34, no. 4 (2000): 383–95CrossRefGoogle Scholar; Jeske, Diane, “Libertarianism, Self-Ownership, and Motherhood,” Social Theory and Practice: An International and Interdisciplinary Journal of Social Philosophy, 22, no. 2 (1996): 137–60CrossRefGoogle Scholar.
25 Nozick, Anarchy, State, and Utopia, 331.
26 This is roughly the line taken by Anna-Karin Andersson, “An Alleged Contradiction in Nozick's Entitlement Theory.”
27 I suspect that they are especially problematic for many standard libertarian theories that wish to limit government interference to actions that prevent force and fraud against moral agents.
28 Anna-Karin Andersson, “An Alleged Contradiction in Nozick's Entitlement Theory,” 62.
29 For a discussion of the distinction between the status of progenitor and procreator, see: Vallentyne, Peter, “Equality and the Duties of Procreators,” in Archer, David and McCleod, Collin, eds., The Moral and Political Status of Children (Oxford: Oxford University Press, 2002), 195–211CrossRefGoogle Scholar; and, Hubin, Donald C., “Daddy Dilemmas: Untangling the Puzzles of Paternity,” The Cornell Journal of Law and Public Policy, 13 (2003): 61–69Google Scholar.
30 “Every Sperm is Sacred,” http://video.google.com/videoplay?docid=9002085385040727366# (accessed August 30, 2010)Google Scholar.
31 I mean by this that the presence of a man's sperm is, like the presence of a fingerprint, typically good evidence that the man was present. It is also typically good evidence he ejaculated. Both conclusions are, of course, defeasible. However, if not defeated, they can be evidence that the man committed a criminal act in relevant contexts.
32 For a sustained development of these arguments, see, my “Daddy Dilemmas: Untangling the Puzzles of Paternity,” 50–61.
33 The practice of various U.S. courts of treating a man's being the source of the sperm that resulted in the creation of a child as constitutive of (or conclusive evidence of) paternity in a sense relevant to the establishment of a duty to support, can be seen as a fallacy that results from what we might label “the paternity paradigm.” For a detailed discussion of this matter, see my “Daddy Dilemmas: Untangling the Puzzles of Paternity.”
34 Susan Moller Okin, Justice, Gender, and the Family, 76.
39 Phillips v. Irons, 16.
40 Donald C. Hubin, “Daddy Dilemmas: Untangling the Puzzles of Paternity,” 52.
41 Phillips v. Irons, 17.
42 Phillips v. Irons, 17–18.
43 Steinbock, Bonnie, “Sperm as Property,” in Harris, John and Holm, Søren, eds. The Future of Human Reproduction: Ethics, Choice, and Regulation (Oxford: Clarendon Press, 1998), 150–61Google Scholar.
45 Bonnie Steinbock, “Sperm as Property,” 161.
46 Two important caveats are needed here. First, if the clear meaning of the statutes in question did not answer the legal questions put by Hecht, then (one might argue) the court is placed in the role of adopting a legislative stance within the discretion allowed it by statute and other governing legal standards. Second, the order of justification that is relevant here is that of an ontological grounding, not a mere epistemic grounding. Surely, one should not deny that if it were known (or reasonably believed) on some independent basis, that Smith owns some object, one would be justified in drawing conclusions about what rights Smith had over that object.
47 Recall that I am using this phrase as shorthand to include all of the relevant incidents of property, some of which are not, in fact, rights or powers.
48 See, for example, Louisana v. Frisard, 694 So. 2d 1032, 1034 (La. Ct. App. 1997)Google Scholar in which the court found that a man whose sperm was allegedly recovered from a condom after oral sex and used by the woman he had engaged in oral sex with to impregnate herself was not entitled to relief from paternal obligations even if the facts were as he alleged.
49 Phillips v. Irons, 16.
50 There could be. Suppose that the woman has had a tubal ligation—a fact that is known to the man and on which his voluntary genital intercourse is conditioned. If that woman, without the man's knowledge or permission, retrieves the sperm and combines it, in vitro, with an egg that was surgically removed from her ovaries, then implants it in her uterus resulting in a successful pregnancy (assuming all of this is possible), there would be precisely the sort of subsequent wrongful action of just the sort alleged in Phillips and Frisard.
51 Steinbock, “Sperm as Property,” 155.
52 The problems with the moral evaluation of population-affecting decisions were recognized early in utilitarian literature—at least as early as 1907 with the original publication of Sidgwick, Henry's The Methods of Ethics (New York: Dover Publications, 1966), 414–16Google Scholar. Parfit, Derek's Reasons and Persons (Oxford: Clarendon Press, 1984Google Scholar) provoked a great deal of philosophical literature on the normative and conceptual conundrums involved in the moral evaluation of decisions affecting the identity and size of future populations. See Parfit, Reasons and Persons, part four, generally.
53 I do not mean to suggest that it is never appropriate to subsume gametes under the property paradigm. Absent special restrictions, human sperm and eggs that have been donated for research to one lab could, I would assume, be sold by that lab to another for research purposes. I am grateful to Jason Brennan and Matt Zwolinski for encouraging me to indicate this way in which my conclusion is a limited one.