Monash Bioeth. Rev. (2014) 32:217–231 DOI 10.1007/s40592-015-0024-0 ORIGINAL ARTICLE
Descendants and advance directives Christopher Buford
Published online: 3 March 2015 Monash University 2015
Abstract Some of the concerns that have been raised in connection to the use of advance directives are of the epistemic variety. Such concerns highlight the possibility that adhering to an advance directive may conflict with what the author of the directive actually wants (or would want) at the time of treatment. However, at least one objection to the employment of advance directives is metaphysical in nature. The objection to be discussed here, first formulated by Rebecca Dresser and labeled by Allen Buchanan as the slavery argument and David DeGrazia the someone else problem, aims to undermine the legitimacy of certain uses of advance directives by concluding that such uses rest upon an incorrect assumption about the identity over time of those ostensibly governed by the directives. There have been numerous attempts to respond to this objection. This paper aims to assess two strategies that have been pursued to cope with the problem.
Some of the concerns that have been raised in connection to the use of advance directives are of the epistemic variety. For example, it has been suggested that while we know what we want now, there is reason to believe that we are much less reliable concerning what we will want in the future. This raises the possibility that adhering to an advance directive may conflict with what the author of the directive actually wants (or would want) at the time of treatment.1 However, at least one objection to the employment of advance directives is metaphysical in nature. The objection to be discussed here, first formulated by Rebecca Dresser and labeled by Allen Buchanan as the Slavery Argument and David DeGrazia the Someone Else Problem, aims to undermine the legitimacy of certain uses of advance directives by concluding that 1
C. Buford (&) University of Akron, Akron, USA e-mail: [email protected]
such uses rest upon an incorrect assumption about the identity over time of those ostensibly governed by the directives.2 There have been numerous attempts to respond to this objection. This paper aims to assess two strategies that have been pursued to cope with the problem. Before turning to the potential solutions, let us state the problem explicitly.
1 The descendant problem First, consider the following scenario. Milo authors an advance directive at age 40. Milo takes time to craft the directive with his lawyer and critically reflects on his values before completing the directive. Milo states in the directive that he is not to receive lifesustaining treatment if he should enter into a state where his autonomy is significantly diminished. Milo specifies that severe dementia would compromise such autonomy. At age 65, after progressing into a state of severe dementia, Milo suffers a heart attack.3 Suppose that Milo’s caregivers consult his advance directive and decide not to revive him. At first glance, this decision may look both appropriate and of the very type Milo’s directive was constructed with in mind. However, a couple of plausible premises give rise to an argument that threatens to establish that Milo’s advance directive is in fact inapplicable. Advance directives provide an individual the ability to decide not only how she is to be treated now, but also to determine how she is to be treated at some future time at which she is not competent to make medical decisions; advance directives are an exercise of what Ronald Dworkin labels precedent autonomy.4 The fact that an advance directive can serve to protect an individual’s autonomy is a powerful reason for accepting the legitimacy of such documents. Given this justification for the use of advance directives (i.e. that the advance directive is to be used to extend my autonomy into the future), it would seem to follow that an advance directive can only apply to the author of the directive. That sameness of individual is a necessary condition for the application of an advance directive is captured by the following principle, NEC. (NEC) If an advance directive authored by an individual legitimately applies to an individual in the future, then the author of the directive and the descendant must be the same individual.5 2
Buchanan (1988), DeGrazia (1999), Dresser (1994).
We should understand ‘severe dementia’ to correlate with what Martin Harvey calls stage 3 dementia; a state that involves a conscious aware subject with both diminished agency and self-awareness. Harvey (2006).
A principle such as (NEC) seems most at home within a deontological framework. If we instead adopt a consequentialist stance, such principles may be more difficult to justify. For more on this topic see Furberg (2012).
Descendants and advance directives
(NEC) alone does not cause problems for the application of Milo’s advance directive, but it does in conjunction with a plausible theory of personal identity over time. Those who endorse a psychological account of the identity over time of human persons argue that if I exist at some future time, I at that time must be connected psychologically in the appropriate fashion to myself now.6 For example, the individual in the future may be required to have memories of events that I have experienced, or act on intentions that I have formed, or be related to me via a chain of such connections. When the appropriate relation obtains, proponents of a psychological account deem the individuals to be psychologically continuous. It is a consequence of this account of personal identity over time that if an individual in the future and I are not psychologically continuous, then he and I cannot be the same individual. The proponent of a psychological account who accepts (NEC) must then endorse the following principle, derived from (NEC) and the psychological account. (NEC-Psych) If an advance directive authored by an individual legitimately applies to an individual in the future, then the author of the directive and the descendant must be psychologically continuous. The descendant problem is now apparent. Given the description above of Milo’s situation, Milo-at-65, the individual struggling with dementia, is a mere descendant of Milo-at-40, the individual who authored the directive; Milo-at-65 is neither identical to nor psychologically continuous with Milo-at-40. We are to imagine Milo-at-65’s mental life to be so compromised that he cannot form the psychological links necessary to be psychologically continuous with Milo-at-40.7 And lack of psychological continuity for the psychological account entails lack of identity. Milo-at-40’s advance directive though cannot be applied to a mere descendant; Milo must be identical to the descendant according to (NEC), and psychologically continuous with the descendant according to (NEC-Psych), but as we just noted, he is neither. Thus, the very type of case Milo-at-40 had in mind when he crafted the directive cannot be covered by the directive.8
For an explicit definition of such continuity see Parfit (1971).
There are theories of personal identity that qualify as roughly psychological but do not require for numerical identity the diachronic links necessary for psychological continuity to obtain. See for example Baker (2000) and McMahan(2002). Such views may be consistent with the numerical identity of Milo-at40 and Milo-at-65. However, these views will presumably rule out the identity of Milo-at-40 and Milo in a permanent vegetative state (PVS); this is also a case where an advance directive might be thought to be applicable.
A psychological theorist may balk here and claim that continuity has not been disrupted since there will be some psychological links, in the form of connections or capacities, between Milo-at-65 and Milo-at-40 (c.f. Shoemaker 1984). Whether this is the case will depend on the details of the account in question and the severity of Milo-at-65’s dementia, but presumably the psychological theorist will concede that some degree of psychological change is sufficient for an individual to go out of existence; we could thus modify our description of Milo-at-65 to account for this fact. The PVS case would also still pose a problem for those adherents of the psychological account that deny that the requisite links could fail to obtain in the case of Milo-at-40 and Milo-at-65. Thanks to an anonymous referee for raising this issue.
2 A solution Though a psychological approach to our identity over time has been embraced by many, and may be supported by a fair number of intuitions about our persistence conditions, there are alternatives. One alternative is Animalism. According to the Animalist, human persons are numerically identical to human animals. Thus, wherever (and whenever) this animal exists, you exist. Since an animal arguably does not persist in virtue of psychological continuity, but instead in virtue of what Eric Olson labels biological continuity, Animalism is seen as inconsistent with the psychological account.9 Most importantly, the Animalist need not claim that lack of psychological continuity between individuals at distinct times entails that the individuals are distinct. Thus, the Animalist is free to reject (NEC-Psych) and accept a different principle derived using (NEC), (NEC-Bio). (NEC-Bio) If an advance directive authored by an individual legitimately applies to an individual in the future, then the author of the directive and the descendant are biologically continuous. Unlike (NEC-Psych), (NEC-Bio) cannot be used to create an analogous problem for the legitimacy of advance directives since this would require that Milo-at-40 and Milo-at-65 are not biologically continuous, but there is little reason to think this is true. Though Milo has lost many of his sophisticated cognitive abilities, abilities that Milo deems necessary to have a significant degree of autonomy, many of the biological functions that supported Milo-at-40 still function to support Milo-at-65. Hence, Animalism, though perhaps not introduced for this reason, appears to offer a tidy solution to the descendant problem. While the Animalist who embraces (NEC), and thus (NEC-Bio), holds that biological continuity is necessary for the application of an advance directive, the question arises as to whether an Animalist ought to accept that biological continuity is sufficient to ground the legitimacy of an advance directive. Alasdair Maclean comes close to endorsing this position. Just as the narrative life cycle and physical continuity of the body allows the persistence of relationships with other beings, so it allows the competent Margo [the author] to feel psychologically connected to her future-self and so to have an interest in what happens to the future Margo.10 However, since biological continuity is consistent with radical psychological change, there is reason to think that such continuity is not sufficient. If I am the victim of head trauma, where such trauma completely changes my psychology, including my beliefs about end-of-life care, there is an intuitive pull towards the position that my advance directive authored years earlier is not applicable. Consider also the more fanciful yet apparently possible case of cerebrum transplant. Placing a 9
Maclean (2006). Another possible supporter is Craig Edwards who states (and later endorses) during a discussion of Dworkin’s case of Margo, ‘‘she [Margo with dementia] is also the biological extension of ‘Margo, the person,’ and therefore the beneficiary of that person’s interests.’ Edwards (2011).
Descendants and advance directives
new cerebrum in my body does not disrupt the biological functioning that keeps this animal alive, but it would arguably void an advance directive created prior to the transplant even given biological continuity between author and descendant. At least one Animalist, David DeGrazia, appears to reject the sufficiency of biological continuity by tentatively endorsing the following approach. One way to approach the issue is to ask whether the agent of an advance directive, who contemplates the possibility of severe dementia, would (coherently) identify with the surviving individual. I believe I would…I also identify, though barely, with the possible future old-timer who bears my name and exists as a ‘mere subject’; a human who is sentient but entirely lacking in self-awareness. I have some prudential (as opposed to altruistic) concern for him…But I don’t really identify with ‘myself’ in a possible future state of permanent unconsciousness, because I would not experience such an existence…11 DeGrazia here endorses the following principle, (NEC-Identify) (NEC-Identify) If an advance directive authored by an individual is to legitimately apply to an individual in the future, the author of the directive must identify with the descendant. Given DeGrazia’s understanding of identification, where identification involves extending one’s prudential concern to a future individual (e.g. fearing the pain or looking forward to the pleasure this individual will experience), Milo-at-40 can identify with Milo-at-65. This indicates that (NEC-Identify) cannot be used to generate a version of the descendant problem. Further, since one cannot identify with oneself in a future state of permanent unconsciousness, (NEC-Identify) rules out the application of an advance directive even though the author and victim are biologically continuous. Thus, biological continuity on this account is not sufficient for the legitimate application of an advance directive. There are some concerns with DeGrazia’s proposal. Though the original descendant problem is avoided, it is not difficult to generate a variant of the descendant problem. All that is required is that we extend the story of Milo. Suppose that Milo’s heart miraculously starts beating again and he lives for another 5 years, but due to a fall enters into a permanent vegetative state. Let us also suppose that Milo-at-70 is connected to a feeding tube before care-givers are made aware of Milo-at-40’s advance directive and that they are now considering whether to remove the feeding tube. The earlier problem for advance directives relied in part on the intuition that we ought to apply the advance directive. If one was motivated by such an intuition, then presumably one will be inclined to allow the application of the directive in the current scenario. However, this looks to be in tension with the passage from DeGrazia cited above. If identification with a comatose individual is impossible, then it would follow that Milo at-40 cannot identify with Milo-at-70. Thus, Milo-at-40’s advance directive could not be legitimately applied to Milo in a permanent vegetative state. 11
DeGrazia (1999), p 390.
Another problem with DeGrazia’s principle is that the notion of identification looks to be consistent with disruption of biological continuity (and thus identity over time for the Animalist). Biological continuity then would be neither necessary nor sufficient for the legitimate application of an advance directive. For example, if I imagine myself subjected to one of the brain or cerebrum transplant operations so often discussed in debates about personal identity, then it is quite easy for me to imagine myself as (and thus identify with) the recipient of the brain or cerebrum.12 Being told that the individual is not biologically continuous with my earlier self, and thus not me according to DeGrazia, does little to change my conception of the scenario. Further, there doesn’t seem to be anything incoherent about conceiving of the scenario in this fashion. It is true that the Animalist does not believe that such thought experiments can be used to establish the truth of a psychological account of personal identity over time, but this need not commit the Animalist to the incoherence of such thought experiments.13 Yet if one can identify with another person with whom she is not biologically continuous, then DeGrazia is actually committed to the falsity of (NEC-Bio), and thus (NEC).14 DeGrazia is aware of the types of cases that threaten (NEC-Bio) and appears open to its falsity since he allows that cerebrum transplant cases might serve as counterexamples to the claim that numerical identity is a necessary condition for what he labels ‘rational prudential concern.’15 Though DeGrazia doesn’t discuss the matter in detail, this looks to be a significant concession. If advance directives can possibly be legitimate in cases where biological continuity and hence numerical identity is absent, then one begins to wonder what it is that makes for the applicability of an advance directive.16 One possible answer is psychological continuity, but this leads us right back to the descendant problem. Instead we might follow DeGrazia and claim that it is identification that is best fit to play such a role. However, we can now see that the notion of identification has some heavy lifting to do if it is to avoid the descendant problem and its variants. It must allow one to both identify with a distinct individual in a manner that is not explained in terms of psychological continuity and to identify with a subject that has permanently lost the capacity for consciousness. If identification is explained in terms of psychological continuity, then there is no guarantee that the descendant problem has been solved. And if identification cannot extend to permanently unconscious individuals, then advance directives will fail to apply to many cases the directives were drafted to cover.
See for example Shoemaker’s Brown and Robinson case in Shoemaker (1963).
See Snowdon (1991).
If identification can hold across distinct lives, then DeGrazia is wrong when he claims ‘‘what we are talking about here can be understood in terms of qualitative dissimilarity, major change in an individual over time’’. DeGrazia (1999), p. 390. My emphasis. 15
DeGrazia (2005), p 198 fn. 58.
That an advance directive can apply in the absence of numerical identity also weakens DeGrazia’s case against those, like Jeffrey Blustein, who argue that narrative identity is sufficient for the applicability of advance directives. DeGrazia (2005), 185 states, ‘‘[I]t is a grotesque error of philosophical logic to think that I will have interests or any other properties when there is no me.’’ Blustein (1999).
Descendants and advance directives
DeGrazia, in a more recent work, attempts to address some of these worries.17 Whether because living, permanently unconscious former beings can have interests, or because precedent autonomy can extend to times when one lacks interests so long as one still exists, I am inclined to accept the claim that precedent autonomy and weak narrative identity can extend to PVS or permanent coma.18 DeGrazia here appears to alter his position by leaning on the concept of narrative identity. DeGrazia’s characterization of weak narrative identity is thus of importance. Let us call weak narrative identity the relation that is created when a person projects her self-narrative to a future time when she will exists without narrative capacity, as with decision making in accordance with precedent autonomy.19 The proposal then is that the Milo-at-40’s advance directive may legitimately apply to Milo-at-70 given that Milo-at-40 can extend his self-narrative to times at which he is no longer conscious. One concern with this solution is that it leads, at least for the Animalist like DeGrazia, to the conclusion that biological continuity is sufficient (at least where the victim exists without narrative capacity) for the legitimacy of advance directives since there seem to be no constraints, other than numerical identity, on extending one’s narrative in this fashion. As noted earlier, there is reason to doubt that biological continuity is sufficient to ground the legitimacy of an advance directive in cases where the victim still retains certain cognitive capacities. This is due to the possibility of radical psychological change. If there is little psychological continuity between author and victim and thus lack of in DeGrazia’s words ‘significant psychological unity’, then the legitimacy of the advance directive is threatened.20 If lack of psychological continuity or unity explains why this type of case is problematic, then the lack of continuity or unity in the case of Milo-at-70 might be thought to be equally problematic; Milo-at-40 is just as psychologically disconnected from Milo-at-70 as would be a person who undergoes change of all memories and psychological capacities from his future ‘self’. Of course, the response will be that weak narrative identity can be employed to connect Milo-at-40 with Milo-at-70. The problem is that the same concerns that were raised earlier about the employment of the notion of identification to ground the legitimacy of advance directives will confront those who invoke weak narrative identity. For example, the considerations that suggest identification can extend to numerically distinct individuals seem equally applicable to narrative identity.
17 Thanks to an anonymous referee for broaching concerns that led to the inclusion of the next three paragraphs. 18
DeGrazia (2005), p 199.
DeGrazia (2005), p 180.
DeGrazia (2005), p 180.
One might also wonder here about the relationship between the descendant problem discussed above and another problem confronting the advocate of advance directives. Even if we grant that Milo-at-40 and Milo-at-65 are the same individual, we might still wonder whether the wishes of Milo-at-40, who wishes to deny lifesustaining treatment, should trump the interests of a seemingly content Milo-at-65. Following Dworkin, let us call this the past wishes/present interests problem. Some have suggested that this, not the descendant problem, is the most pressing problem facing those who endorse the legitimacy of advance directives.21 Two points can be made here. First, the descendant problem is prior to and distinct from the past wishes/present interest problem since the latter only arises when we assume that author and victim are in fact the same individual. It may be that of the two, the latter problem is thought by many to be the real threat to advance directives, but that requires that the former problem either has been solved or really isn’t much of a problem. The present article is in an attempt to argue that neither is true. And while we have seen that versions of the descendant problem can arise even given the assumption of identity between author and victim, the original version of the argument relied on the premise that author and victim are numerically distinct. And versions of the problem that assume identity of author and victim (e.g. Milo-at-70 in a PVS) need not involve a victim who has any interests grounded in his present experiences. Second, if the preceding criticisms of DeGrazia’s proposals are cogent, then there are some grounds for thinking that it is the present interests of Milo-at-65 that should ultimately carry the day. According to these criticisms, it is not the absence of identity between author and victim that dooms an advance directive, but the lack of psychological link between author and victim. Since this link is presumably not present, or at least is very weak when the past wishes/present interests issue arises, the foregoing suggests that the past wishes should not override the victim’s present interests. DeGrazia disagrees. My tentative, uncertain suggestion is that diminishing the authority of precedent autonomy makes sense only if the earlier person did not robustly identify with the later self…. I suggest that, when someone’s prospective autonomous wishes are clear for a later circumstance in which he finds himself, they apply with full authority if the individual robustly identifies with the later self.22 DeGrazia is now though confronted with a dilemma. If robust identification requires some form of narrative identity, then an account based on such identification will inherit the problems noted above. And if robust identification does not require some form of narrative identity, then the concern is that the relation is too weak to ground the extension of precedent autonomy.23 Our discussion of DeGrazia’s positions suggests that it might be (NEC) itself, as opposed to a particular theory of personal identity over time, which is the primary 21
Menzel and Steinbock (2013).
DeGrazia (2005), p. 196. My emphasis.
Such identification will thus require more than ‘‘believing and feeling that the older man will be he.’’ DeGrazia (2005), p. 176.
Descendants and advance directives
cause of the descendant problem. However, since (NEC) is plausible, and appears to flow naturally from the main justification for the legitimacy of advance directives, it would be nice to have an explanation of its falsity. Perhaps DeGrazia’s notion of identification or weak narrative identity could be further illuminated to accomplish this task. Another strategy, to which we now turn, has been to compare the mere descendant to a literal descendant, one’s child.
3 Another solution Parents are obviously distinct individuals from their children. Thus, a solution to the descendant problem that draws on an analogy to parents and children can easily embrace the rejection of (NEC). Further, since parents are often asked to make decisions concerning a child when the child is no longer capable of conscious experience, the solution will, unlike DeGrazia’s, extend to advance directives governing individuals like Milo-at-70. Unlike the solutions discussed earlier, this solution will not necessarily rely on the extension of the author’s precedent autonomy, but instead on the fact that parents are often assumed to have a significant amount of power to dictate what happens to their children. Whether this solution is viable depends in part on the nature of the parent/child relationship, as well as whether it accurately captures key elements of the author/descendant relationship, especially where the author and descendant are distinct individuals. Alasdair Maclean offers the following characterization of the parent/child relationship. By law, parents have the authority of make decisions on behalf of their children where the children lack the capacity to make their own decisions. This decisional authority is not absolute and must be in the ‘best interests’-or at least not be contrary to the child’s interests or welfare. The parent’s decisions are open to the scrutiny of the court and may be challenged by other parties with an interest in the child. This is because parental authority is grounded in the interests of the child and not the autonomy of the parent.24 Taking this description as our starting point, we can formulate the following argument. (ANALOGY)25 (1) (2) 24
The parent/child relationship and the author/descendant relationship are deeply (as opposed to superficially) similar. Parents have the right to make decisions on behalf of their children.
Maclean, pp. 315–316.
Maclean himself appears to endorse (Analogy). ‘‘However, my argument is not based on the parent’s role as career, but more fundamentally on the parent’s relationship to the child. Just as it is the nature of the parent’s relationship to the child that justifies the parent having the strongest claim to act as the child’s career, so it is the nature of the relationship between the past and present-self that allows the past self a prima facie claim to act, through an advance directive, as decision-maker.’’ p. 316.
So, the author of an advance directive has the right to make decisions on behalf of her descendant (including the right to refuse life-sustaining treatment for the descendant).
In order to assess the cogency of (ANALOGY) we must answer (at least) the following two questions.26 (A) (B)
Are the two relationships deeply similar? Do parents have decision-making rights with respect to their children?
Let us first address (B). As Maclean notes above, parents certainly have the legal right to make decisions for their children. And we might take the legal right as at least defeasible evidence for the existence for a moral right. It should be noted however that existence of such moral rights has been called into question. Here is Phillip Montague on parental rights. My substantive claim is not that parental rights (or any class of rights, for that matter) can be legislated out of existence simply by labeling them ‘‘obligations’’ rather than ‘‘mandatory rights.’’ What I am arguing is that paradigmatic rights are discretionary, and are oriented towards their possessors; and that there are no such things as parental discretionary rights.27 Montague agrees that parents have significant obligations to their children, but believes that granting such obligations actually makes granting rights to parents unintelligible. Suppose that parents, as many believe, have an obligation to act in the best-interests of their children.28 Montague argues that we might say that a parent has a ‘right’ to do what is in the best-interest of her child, but for Montague this is not sufficient to possess a right akin to those invoked in debates concerning abortion or euthanasia. Genuine rights serve to protect in some sense the possessor of the rights and are discretionary (i.e. one need not do what one has a right to do). According to Montague, one’s obligations to one’s children will (i) make certain types of actions (e.g. ensuring quality education and health-care) mandatory and (ii) make no mention of the interests of the parent. Thus, Montague concludes that there are no parental rights. If parents do not have genuine decision-making rights with respect to their children, and the best-interests standard rules supreme, then the power of an advance directive (seen as analogous to the judgment of a parent) is severely limited.29 This is due to the fact that if we know a choice to not be in the best-interests of an individual, then we would presumably at least sometimes have an obligation of attempt to alter that decision. As noted in the last section, one of the contested questions surrounding 26 One should also be concerned with any relevant disanalogies between the two relationships. This is discussed by Maclean, pp. 318–319. However, this is most pressing if the argument appears cogent after questions such as (A) and (B) have been answered. As will become clear, I don’t think this argument meets that condition. 27
For example, see the Maclean quote above.
Descendants and advance directives
advance directives, and one where the notion of precedent autonomy is especially salient, is whether even granting that the author and the descendant are the same individual, the past wishes of the author should be allowed to override the present interests of the descendant.30 The best-interests standard as applied to advance directives would often preclude favoring the author over the descendant, especially in those rare cases where we have very good reason to believe that the descendant is leading a pleasant life. Yet this would significantly limit the power of an advance directive. It would disallow not only adhering to an author’s past wishes in the Dworkin case, but also possibly ignoring do not resuscitate (DNR) orders that are deemed to be inconsistent with the victim’s best-interests. If parents do have an obligation to do what is in the best-interests of their children, then Montague’s argument is compelling. However, the best-interests standard is arguably too stringent. This is not to say that parents have no obligation to promote the interests of their children. Instead, it is more plausible to require that parents guarantee some minimal threshold of interest-satisfaction of their children.31 If this is correct, then Montague’s claim that parental obligations are in conflict with parental rights can be questioned. To see this, imagine a parent who is trying to decide whether to take a promotion that has been offered at work. The promotion will require her to move to a new city, enroll her daughter in lower quality schools, and in general disrupt the life of her child. Even if the move is not in the bestinterests of her child, it doesn’t seem blatantly wrong for her to accept the promotion. And an explanation of the permissibility of this action would presumably invoke the rights of the parent with respect to her children. Montague’s response here might be that a parent would still have the obligation to not let her child fall below a particular threshold, and that this obligation, like the obligation to do what is in the best-interests of one’s child, precludes the existence of genuine rights. However, this also isn’t obvious. Rights presumably are the sorts of things that make it permissible to act in certain ways towards others; ways that might in fact be to the detriment of the interests of such individuals. It is thus hard to imagine how our parent above could be justified in moving her child if the parent does not possess a genuine right to make such a decision for her child. Rights are often associated with liberties to act in particular ways conjoined with the duty of others to not interfere.32 This is just what we have here. Let us then move forward on the assumption that parents do possess some, perhaps only prima facie, rights to make decisions on behalf of their children. A query that will help us answer (A) asks why parents have any obligations to their children. Michael Austin proposes the following explanation. The Causal Theory of Parental Obligations (CT): If a moral agent causes, in the relevant way, the existence of a child, then that moral agent has special prima facie obligations to that child.33 30
Though I am skeptical of where she draws the line, this objection could be phrased in terms of Laura Purdy’s concept of a ‘minimally-satisfying life.’ Purdy (2005). 32
According to Austin, causation is relevant in part because by having a child, a person is bringing into existence a being that initially requires an enormous amount of support to live. Further, though (CT) doesn’t mention rights, if there are parental rights, then such rights might be grounded in the same fashion.34 Suppose that Austin is correct that (CT) is the correct story as to how it is that parents acquire obligations to (and rights with respect to) their children. The analogue relevant to the descendant problem would be (CTA). The Causal Theory of Author Obligations—If a moral agent causes, in the relevant way, the existence of a mere descendant, then that moral agent has special prima facie obligations to (and rights with respect to) that descendant. The prospects for using the principle to dissolve the descendant problem however are not promising. The main problem is that it seems wrong to describe Milo, and most other advance directive authors, as persons who cause the existence of the numerically distinct descendant.35 Certainly the persons are part of a causal chain of events that leads to the existence of the descendant, but being part of a causal chain that leads to a particular event is not equivalent to causing the event itself. I might be a participant in a car crash without being guilty of causing the crash. This is not to claim that it is impossible for the author to cause the existence of a mere descendant; this is quite easy to imagine. All that is needed here is that the causal principle does not apply to cases like Milo’s and is thus unable to help us explain how Milo-at-40’s directive can be legitimately applied to Milo-at-65. Another attempt to ground a parent’s obligations to her child focuses on the biological relationship that obtains between a parent and her child.36 The Biological Theory of Parental Obligations (BTP)—if a moral agent is biologically related, in the right way, to a child, then that agent has special prima facie obligations to (and rights with respect to) that child. We can then also formulate an analogous principle governing authors and their descendants. The Biological Theory of Author Obligations (BTA)—If a moral agent is biologically related, in the right way, to a mere descendant, then that moral agent has special prima facie obligations to (and rights with respect to) that child. One favorable fact about this line of thought is that there is little reason to doubt that the author and the descendant are biologically related. Thus, if (BTA) is true, it will most surely apply to the case of Milo. Unfortunately, three facts make the attempted use of a biological theory problematic. The first two are related to drawing on a biological connection to ground parental obligations. Placing such an emphasis on a 34
David Archard calls this the ‘parental package view’. Archard (2010).
The ‘numerically distinct’ qualification is important here. As an anonymous referee pointed out, it doesn’t seem problematic to think that I am part of the cause of my continued existence. 36 This type of view might be combined with the position that children are akin to property of the parent. See for example Page (1984).
Descendants and advance directives
biological connection would seem to entail that a man who donates sperm to allow an infertile couple to have child may have special obligations to the child. For those who believe that donors do not have such obligations, this consequence is troubling. Second, even if such a connection is sufficient to ground obligations, it is arguable that this type of connection is not sufficient to ground rights. As has been pointed out, if such a connection is sufficient, then the rapist who happens to father a child would have parental rights with respect to that child.37 And it is rights that are most germane here since what is in question is whether the author of an advance directive possesses the right to decide what will befall her mere descendant. The final problem is that we have already seen that is at least a contentious claim that biological continuity alone is sufficient to make applying an advance directive legitimate, but this is exactly what is suggested by (BTA). It may be that the proponent of (ANALOGY) can grant that parents and authors differ as to how they obtain their respective rights and obligations, but can argue that nevertheless, the obligations and rights possessed by each are similar. To assess this claim, it might be helpful to have a plausible model of the parent/child relationship to guide us. Let here use Michael Austin’s Stewardship Model. Stewardship is a helpful concept with respect to parenthood, because there are many ways in which parents are caretakers, or stewards, of their children. First, a parent can see themself as caring for the body and mind of their child, and acts as if the adult human person who the child will become is away on a trip, a trip they will return from in approximately twenty years…A parent is also a steward of their child of their child because society has entrusted the raising of the child to them… The quality of the child- rearing will have a deep impact on who our children will become…38 One issue with attempting to apply the stewardship model to the author/descendant relationship is that the steward metaphor is forward looking. One is to think of what type of individual will result from parental choices, both for the person’s own sake and the sake of society. Thus, as a parent I should not only take into account my child’s current interests, but those in the future as well. I might then tell my child to practice piano, knowing that though he won’t enjoy this now, it will hopefully lead to a future filled with the enjoyment of music. However, when we are dealing with advance directives, it is usually the case that the kinds of interests involved are situated solely in the present and are not sophisticated in nature. We know that Milo-at-65 will not grow up to be a successful pianist or career criminal; Milo-at-65 is suffering from severe dementia and it is only interests that are compatible with this fact that can factor into our analysis. Austin does grant that sometimes the steward’s interests may outweigh those of her charge, but in the case of Milo, what interests of the steward could do this?39 If Milo-at-65 was the same individual as Milo-at-40, then how we treat Milo-at-65 would be directly relevant to the steward’s (i.e. Milo-at-40) interests. But we are conceding here that this is not the case. 37
Archard, ‘The Obligations and Responsibilities of Parenthood.’
Austin, p. 58.
Austin, p. 58.
Further, we need not reject here the possibility of posthumous harms, but only that allowing Milo-at-65 to live would directly harm the distinct individual who is Miloat-40. While surely not conclusive, the preceding shows us that the attempt to extend rights to the author of an advance directive via analogy with parental rights faces numerous challenges. The relationships themselves are quite different, making any extrapolation based on their similarities quite tenuous. Most importantly, the types of obligations and rights that are had by parents are grounded in aspects of relations to their children that are not instantiated by authors and their mere descendants.
4 Prospects The difficulties facing each of the solutions discussed above help to highlight the issues that make the descendant problem so intractable. Many of us value our autonomy and conceive of that autonomy as being able to extend into the future. This drives us to endorse the creation and legitimacy of advance directives. However, if the legitimacy of the advance directive that I create is grounded in facts about my autonomy, then initially it appears that such a directive cannot apply to you or anybody else. This leads to the acceptance of a principle like (NEC). (NEC) however requires a tight connection between author and descendant, so tight that it may not obtain when we most need the advance directive, this is true especially if we accept a psychological account of personal identity. We may then choose to reject (NEC), but then we are left looking for a relation that is both strong enough to ground advance directives, but weak enough to be consistent with the distinctness of author and descendant. DeGrazia relies on the notions of identification and narrative identity to play this role, but both are susceptible to versions of the descendant problem. Further, the preceding gave us reason to believe the parent–child relation is not up to the task. One solution that has not been addressed here is to give up on the legitimacy of some (or all) advance directives. This is admittedly a radical solution, but not one that can be dismissed without due consideration in the future.40 Acknowledgments I would like to thank two anonymous referees for comments that led to the improvement of the current paper. I also thank Mark Vopat for reading and commenting on an earlier version of this paper.
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This position is of course not without its supporters. See Robertson (1991).
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