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HUMAN REPRODUCTIVE INTERESTS: PUZZLES AT THE PERIPHERY OF THE PROPERTY PARADIGM*

Published online by Cambridge University Press:  14 December 2011

Donald C. Hubin
Donald C. Hubin
Affiliation:
Philosophy, The Ohio State University
Rights & Permissions [Opens in a new window]

Abstract

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.

Information

Type
Research Article
Information
Social Philosophy and Policy , Volume 29 , Issue 1 , January 2012, pp. 106 - 125
Copyright
Copyright © Social Philosophy and Policy Foundation 2012

I. Introduction

The question of ownership—property rights—is important in addressing many issues of public policy. The ownership of an object does not answer the question of how that object should, morally speaking, be used, but it often answers—or helps to answer—the question about who has the right to decide how the object will be used within rather wide limits. Answering this question does not settle all issues of public policy with respect to a thing. Even if an object is privately owned, there may be good grounds for encouraging or discouraging certain uses of it or for imposing limitations on its use. Obviously, however, issues of public policy are quite different with respect to privately owned objects than with respect to public or communally owned property.

What I will call “the property paradigm” (and describe more fully in Section II) is extremely useful with respect to many moral questions that we encounter and, in particular, with respect to moral questions concerning public policies. I will argue in Section III, however, that it exerts a distorting influence on debates about a variety of complex moral issues. More specifically, I will 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 not a novel one; it 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. More specifically, I will argue that focusing on the question of the ownership of gametes, in particular of sperm, tends to warp the moral dialogue concerning reproductive rights. Those sensitive moral debates are better framed in terms of individuals' legitimate interests than in terms of property, as I will show in Section IV.

II. The Property Paradigm

To understand what I am calling “the property paradigm,” we must begin with the concept of property. There is, of course, continuing controversy over this concept. I will not enter this debate in any detail. Rather, I'll declare the meaning I attach to the term so that merely verbal disputes are not mistaken for substantive ones. That meaning, while not universally endorsed, is far from idiosyncratic. With a clear understanding of what I take the property paradigm to be, we can see how it still exerts some residual influence over discourse concerning parental rights and how it significantly distorts discussions of reproductive rights.

I understand “property” in the relevant sense, to refer to objects in virtue of a cluster of Hohfeldian rights an agent holds over them and other “incidents” that pertain to them.Footnote 1 These rights and other incidents that give shape to the concept of property were given their modern, canonical formulation by A. M. Honoré in the seminal paper “Ownership.”Footnote 2 Honoré identified eleven incidents of ownership, including most importantly for present purposes: the rights to possess, use, and manage an object, the right to income and capital from the object, the duty to avoid harmful use of the object, transmissibility, and the absence of term. When, with respect to a given object, these incidents are instantiated in one individual or group (at least when the rights in question are fairly extensive), it is proper to say that the object is the property of that individual or group. This is an instance of what has come to be referred to as “full liberal ownership.” It is our paradigmatic case of ownership.

The concept of property is multidimensionally vague; it is defined in terms of a paradigmatic cluster of rightsFootnote 3 that are conceptually and often empirically separable from one another—hence multidimensional—and many of these elements are vague in the philosophical sense of admitting of borderline cases and tolerating minimal changes. Property's multidimensional vagueness entails that individual instances of putative property can constitute borderline cases in two distinct ways. First, while all of the elements are, perhaps, necessary for full liberal ownership, that concept is a creature of philosophers and it is clearly stronger than our ordinary concept of property. In ordinary contexts, an object is comfortably considered property even if some of the incidents of full liberal ownership are missing. As Honoré noted, not all of the incidents of property are equally significant.Footnote 4 Our ordinary concept of property would clearly survive a failure to literally satisfy the “absence of term” requirement. So, one source of borderline cases arises from situations where most, but not all, of Honoré's incidents are instantiated in one person or group.Footnote 5

Another source of vagueness arises because many of the incidents of ownership exist in degrees. This is nicely illustrated by Honoré himself in his discussion of his ninth incident of ownership: the prohibition on harmful use. He says:

An owner's liberty to use and manage the thing owned as he chooses is subject to the condition that not only may he not use it to harm others, but he must prevent others from using the thing to harm other members of society. There may, indeed, be much dispute over what is to count as harm, and to what extent give and take demands that minor inconveniences between neighbours shall be tolerated. Nevertheless, at least for material objects, one can always point to abuses which a legal system will not allow.Footnote 6

Clearly, the prohibition on harmful use can impose a variety of more or less severe limitations on the use of an object by its owner. As the restrictions on the individual's use of the object become more severe, we become less comfortable describing the object as the property of the individual. But it would be silly and simplistic to believe that there is a sharp line dividing those instances where the incidents of rights to use and manage are sufficiently met for an object to be the property of an individual and those where they are not so met.

So, there is vagueness with respect to which elements of the cluster of full liberal ownership rights must be present in order for something to be properly considered property and there is vagueness along each (or at least most) of the elements of the cluster. There is much that could be profitably disputed about the ordinary concept of property, but it is foolish and fruitless to look for sharp lines of division between property and nonproperty.

For our purposes, the details of the correct account of property—whether or not the specific incidents of ownership that Honoré identified are correct and correctly characterized—are not crucial. We are trying to understand the nature and function of what I have labeled “the property paradigm.” The details of how “the property paradigm” is understood will, of course, depend on the details of how “property” is understood. But these details need not concern us here. In whatever way the specific rights of ownership are understood, one important feature of the property paradigm is that it is object-oriented; that is, it is objects, either abstract or concrete, that are property. Not everyone uses the term in this way. Jeremy Waldron, for example, understands “property” as referring to “the rules that govern people's access to and control of things like land, natural resources, the means of production, manufactured goods, and also (on some accounts) texts, ideas, inventions, and other intellectual products” (emphasis added).Footnote 7 While the system of property is certainly a system defined by social and, in modern societies, legal rules, it is more consonant with common usage to reserve the term “property” for the objects that one has access to or control of under those rules rather than to apply it to the rules themselves. That “property” refers to the objects that are owned is part of our ordinary understanding of the term. (Police property rooms are, after all, not rooms filled with rules.)

This object-oriented focus is one part of the property paradigm. A second part has to do with the extent of the rights over these objects. We think of the objects which we count as property as being ones over which we have broad, though (as I have claimed) vaguely defined, rights. The third element I want to point to is this: having focused on objects over which we have rather extensive rights, we tend to think that this bundle of rights is largely the same for a wide variety of different objects we might own. We are inclined to think, perhaps without a great deal of reflection, that ownership of diverse objects involves roughly the same set of rights with respect to those objects.Footnote 8

The property paradigm is characterized, then, by object-orientation, and assumptions concerning the extent and similarity of rights over objects. When our thinking is governed by the property paradigm, we tend to focus on the question of who owns what—in the expectation that this will resolve, or help to resolve, questions of public policy in the way I have suggested above.

The property paradigm works like a conceptual analogue of the computer aided design (CAD) function of “snap to grid.” Computer aided design programs assist those engaged in drafting and design by straightening and aligning with a grid of specified granularity lines that are drawn with a mouse or touchpad. The property paradigm is the conceptual analogue in the sense that it takes situations that are intrinsically different from one another and “snaps” them to a predetermined template. Doing this sometimes involves shoehorning and it always involves loss of detail. This is not a bad thing. One purpose of theories is to reduce information overload—to filter out irrelevancies and trivialities to allow us to understand general features of situations. We lack the mental resources requisite to understand the world in all its particularity. Problems arise, though, when the grid that we snap these cases to is too coarse or otherwise poorly defined. And these problems show up as puzzles for the paradigm.

III. Puzzles

A. An old puzzle

Puzzles for the property paradigm arise nowhere more prominently than with respect to reproductive issues. Perhaps the most familiar example of this lies in the well-known problem of parental rights. Parents have, most believe, rather extensive rights over their children—especially over young children. A now quaintly obsolete approach of treating these rights as property rights provides a historical case study in the errors to which one can be led by the hegemony of the property paradigm. While the treatment of parental rights as property rights is largely a relic of the past, it bears a brief excursion as a prelude to the examination of more current controversies.Footnote 9

In his 1680 defense of political authority, Patriarcha; of the Natural Power of Kings, Sir Robert Filmer conceived of parental rights, the “fountain of all Reagal Authority,” as absolute property rights.Footnote 10 Filmer's defense of monarchy relied infamously on an extreme form of patriarchy according to which fathers hold full liberal ownership rights over their children. Indeed, the right that Filmer alleged fathers have over their progeny is “absolute dominion,”Footnote 11 which, if anything, is even more extreme than full liberal ownership.

In his response to Filmer, Patriarcha non monarcha, James Tyrrell raised several objections to Filmer's argument.Footnote 12 He challenged the gender exclusivity of this argument—pointing out that the procreative process would, contrary to what Filmer thought, result in mothers having a greater right than fathers.Footnote 13 Tyrrell also noted that, since the alleged paternal right would not exist in the absence of marriage, it cannot be grounded solely on a father's role in generation.Footnote 14 Moreover, in what strikes me as a rather modern move, Tyrrell proposed that it is not generation, but the education, sustaining, and “breeding up” of the child, that grounds parental rights.Footnote 15 Tyrrell specifically identified the limits of parental rights and authority by reference to his proposed grounding of parental rights in rearing, and sharply distinguished parental rights from property rights:

Since therefore the Father's greatest interest in his Child proceeds from his having bred it up, and taken care of it, and that this Duty is founded on that great Law of Nature, that every Man ought to endeavour the common good of Mankinde, which he performs, as far as lies in his power, in breeding up, and taking care of his Child; it follows, that this right in the Child, or power over it, extends no farther than as it conduces to this end, that is, the good and preservation thereof: and when this Rule is transgressed, the Right ceases. For God hath not delivered one man into the power of another, merely to be tyrannized over at his pleasure; but that the person who hath this Authority, may use it for the good of those he governs. And herein lies the difference between the Interest which a Father hath in his Children, and that property which he hath in his Horses or Slaves; since his right to the former extends only to those things that conduce to their Good and Benefit; but in the other he hath no other consideration, but the profit he may reap from their labour and service, being under no other obligation but that of Humanity, and of using them as becomes a goodnatur'd and merciful man; yet still considering and intending his own advantage, as the principal end of his keeping of them.Footnote 16

It is probably fair to say that Tyrrell saw parental rights as fiduciary rights—rights one has in virtue of a duty to act for the benefit of another. This view is, I believe, very attractive to many today.Footnote 17

In the First Treatise, John Locke (who corresponded with Tyrrell on these issues), offers an extended discussion of Filmer's position.Footnote 18 Like Tyrrell, he challenges the conclusion of patriarchy arising from the argument from generation.Footnote 19 In response to Filmer, Locke challenges the assumption that the process of generation of human beings is of the sort that will generate rights over the object created. Here, Locke must tread carefully so as not to undermine the very premises he requires for his labor theory of acquisition of objects, since he clearly believes such objects can be owned as a result of our labor to create them. As Robert Nozick notes, however, Locke appears to fail.Footnote 20 Locke seems to commit himself to the idea that, as Nozick puts it, “one owns something one makes only if one controls and understands all parts of the process of making it”Footnote 21—a criterion that would undermine much of the property that Locke wants to endorse in the Second Treatise.

Although the property paradigm has not completely disappeared from discussions of parental rights, I know of no serious contemporary defenses of the view that parental rights are instances of property rights; indeed, that view seems to have achieved the status of being the conclusion of a reductio ad absurdum argument, even if typically a specious one. That is to say, though no one I know seriously embraces the view that parental rights are property rights, various parties disputing custody issues allege that their opponents are treating children like property—sometimes in cross-complaints of the same alleged moral mistake.

In the philosophical literature, Susan Moller Okin uses the problem of parental rights to construct what she asserts is a reductio of libertarian theories—a reductio, she alleges, that was obscured by the history of political philosophy as a largely male discipline.Footnote 22 Libertarian theories, at least those along the lines of Robert Nozick's, will, she alleges, entail that everyone owns himself or herself exclusively and that everyone is owned exclusively by his or her mother as a result of the mother's labor in creating the child.Footnote 23 Since I do not wish to pursue this particular topic, which has been discussed by others,Footnote 24 I'll leave it with the simple observation that the obvious response seems to be the correct one—and it is one that Nozick alludes to and, for all Okin says, is not barred from presenting. That is, it is something about the nature of the product of human reproduction that bars ownership of that product in virtue of whatever labor the producer has put into the process; it is not the process itself (as Locke suggested) or the status of the raw materials from which the product is produced. This view is easily acceptable to those who deny the permissibility of even fully voluntary slavery. But it is also admissible by those who accept the permissibility (in principle) of fully voluntary slavery if they accept, as Nozick suggests he does, that “some things individuals may choose for themselves, no one may choose for another.”Footnote 25 This is true, at least if we expand, as I suspect Nozick would, the dictum to say that some things individuals may choose for themselves, no one can choose for another, or otherwise bring about for another (without that other's choice).Footnote 26

In setting aside here the issue of parental rights, I don't mean to suggest that they do not raise interesting problems for many political and moral theories—including, and maybe especially, libertarian theories.Footnote 27 Providing a justification for the set of rights and responsibilities that we believe, on reflection, parents have with respect to children can be a significant challenge—more so for some theories than others. And, a fortiori, I do not mean to diminish the importance of providing an adequate grounding for these rights and responsibilities, regardless of what implications such a grounding might have for extant theories. I am simply recognizing that, in the three centuries since the debates by theorists like Grotius, Pufendorf, Bodin, Filmer, Tyrrell, and Locke, the discussion of parental rights has largely moved away from the property paradigm.

This is not to say that the property paradigm does not influence people's reasoning with respect to parental rights. Here is an example of what we might call “remnants of the property paradigm” with respect to parental rights. Anna-Karin Andersson argues, quite reasonably, that parents do not have property rights over their children. She goes on to draw out what she takes to be an implication of her theory as follows: “Since parents do not own their children, other agents are morally permitted to confiscate other's offspring, provided they offer the child at least the same opportunities to develop autonomous agency as would the biological parents.”Footnote 28 But, of course, unless we are thinking that the only sort of rights biological parents could have over their offspring are rights of ownership, no such thing follows. Progenitors or, more likely, procreators can have rights against such confiscation without having property rights over their offspring.Footnote 29 Even if the rights of progenitors and procreators against such confiscation are not acknowledged, virtually everyone would concede that parents who have reared, and are continuing to rear, their children have a right that the children not be confiscated by any strangers who can “offer the child at least the same opportunities to develop autonomous agency” as would the parents. And few would ground this on the view that parents who rear those children own them. It is, then, implausible to think that only a person's ownership of a child can ground a right against confiscation of the child by another equally able potential parent.

Still, despite reverberations of the property paradigm in our reasoning about parental rights, the property paradigm has largely exited the scene as a ground of parental rights. Not so in all matters reproductive. While the property paradigm's role in discussions of parental rights has receded, it is still prominent in discussions of a variety of reproductive issues, including discussion of rights over frozen embryos and gametes. It is my contention that it distorts, rather than illuminates, these debates. I will try to make this case by focusing on certain reproductive issues for men—in particular, men's interest in their sperm.

B. A new puzzle: Sperm as property

Making sperm is a big job; adult human males produce as many as 250 million sperm cells per day. (Still, we are slackers compared with our grandfathers; seventy years ago, the normal sperm production rate was twice what it is now.) And it takes between sixty-five and seventy days for each sperm cell to mature. That is a lot of work, though fortunately it is all at the subpersonal level; that is to say, all of this happens without any conscious effort, or even awareness, on the part of the man. As a result, in typical cases, (Monty Python sketches to the contrary notwithstandingFootnote 30) sperm is not considered by most people to be sacred or a “precious bodily fluid.” In many contexts, it would seem to be treated more like a waste product than an object of value. But that is not always true.

Usually, our interest in sperm arises in connection with human reproduction. Of course, we also take a strong interest in sperm when certain crimes have been committed. In these cases, we are clear, I think, that sperm plays only a persuasive evidentiary role in identifying the criminal. That is to say, it is merely evidence of some further fact that is constitutive of the criminal act.Footnote 31 Another forensic interest we have in sperm concerns its reproductive role. We use sperm to identify paternity for purposes of establishing a child support obligation. Here, sperm should play the same role it does in criminal investigation. That is, it should be probative, but defeasible, evidence of a further fact that serves as the actual ground of a child support obligation. Unfortunately—probably because of the current ease with which the producer of sperm can be identified and the difficulties of establishing the other factors that are relevant to whether a man has a morally justifiable obligation to support a child—courts in the United States have often treated a man's being the source of sperm either as constitutive of or as conclusive evidence of paternity in a sense relevant to the establishment of a duty to support a child. Paternity, though, is better thought of as a cluster concept; being the progenitor is only one element in the cluster and not, I think, a plausible candidate on which to rest most of the rights and duties of paternity. That a man's sperm produced a child is typically good evidence that he engaged in an action that can reasonably serve as a basis for assigning a paternal duty to support a child. However, the cases of posthumous impregnation, stolen sperm, and rape of a man by incapacitation all demonstrate that it is not conclusive proof of such an action.Footnote 32

But forensic use of sperm is not the realm where the property paradigm perverts our understanding of the moral issues at stake.Footnote 33 The cases of interest are ones in which individuals assert a legally cognizable interest in how sperm is used. In these situations, where people have a strong interest in some specific sample of sperm being used, or not being used, in a particular way, it is natural to ask: “Who has the right to decide whether the sperm will be used in that way?” And, under the property paradigm, this is taken to be the question of ownership: “Who owns the sperm?” Sperm is treated as property, over which the owner has extensive rights and which can be bought, sold, stolen, given as a gift, obtained by fraud, trespassed, or converted.

Here's one way in which the property paradigm plays out with respect to sperm that is used for reproductive purposes. Susan Moller Okin arrives at her rather surprising (alleged) reductio against Nozick—the claim that his libertarianism implies a form of matriarchy—on the grounds that “women, and only women, have the natural capacity to produce people.”Footnote 34 And she arrives at this surprising proposition by assuming that human procreation is a process that is conducted by fertile females from sperm that is “freely given” or, in some cases, purchased.Footnote 35 She seems to think that it is obvious that, in a completed act of intercourse without a condom, the man has freely given his sperm to the woman in a sense relevant to the ownership of the sperm. As a result, after the gift, the woman has the extensive rights of ownership.

The view that sperm is property, the title to which is voluntarily transferred in typical acts of voluntary sexual intercourse is neither unique to Okin nor restricted to abstract philosophical discussions. In several court cases in the United States, litigants have asserted the same proposition. And, those opposing them, while denying that the transfer of sperm in the act of sexual intercourse is a free gift, have themselves relied on the property paradigm to assert their claim. The dispute is over who owns the sperm, not over whether it is property.

For example, in New Mexico in 1998, Peter Wallis sued Kellie Smith for, among other things, conversion of property for using his sperm in a manner that he did not authorize after he had transferred it to her in an act of voluntary intercourse.Footnote 36 According to Wallis's complaint, prior to having intercourse, he and Smith engaged in a serious discussion of possible reproductive consequences. Wallis, who did not want to become a father, agreed to engage in sexual intercourse with Smith only if she was on birth control pills. Smith represented to Wallis that she was. Wallis alleged in his complaint that after their sexual relationship began and without informing him, Smith stopped taking birth control pills and, subsequently, became pregnant.

In 2003, in an Illinois case that raised similar issues, Richard Phillips sued Sharon Irons for conversion of property (again, among other things). Phillips alleged that in 1999, Irons “intentionally engaged in oral sex with [Phillips] so that she could harvest [his] semen and artificially inseminate herself,” and that she “did artificially inseminate herself” with his sperm.Footnote 37 At first blush, if the facts are as Phillips alleged, conversion of property seems like a reasonable thing to allege—provided the sperm was, even after it was physically transferred, Phillips's property. “Conversion of property,” after all, is “[a] distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his title or rights therein, or in derogation, exclusion, or defiance of such title or rights.”Footnote 38

Both sides in these disputes accept the property paradigm. The male plaintiffs assert that their property has been wrongfully converted. The female defendants allege that the property was freely transferred and so their use of the property did not meet the legal definition of conversion of property. As Sharon Irons put it in her pleadings: “when plaintiff ‘delivered’ his sperm to defendant it was a gift—an absolute and irrevocable transfer of title to property from a donor to donee.”Footnote 39 I will not venture an opinion as to whether, viewing sperm as property, the use these women have made of the men's sperm that was transferred to them through a voluntary act constitutes conversion of property as it is legally defined. It is worth pointing out in passing, though, that the voluntary transfer of physical possession does not (generally) constitute voluntary transfer of property rights. As I have pointed out elsewhere,Footnote 40 if it did, parking valets would own far more, and probably far nicer, cars than they do. Given this obvious point, even if we accept the property paradigm with respect to a man's sperm, it certainly does not follow that he has freely given ownership of it to the woman in the act of voluntarily transferring it during intercourse.

The U.S. courts in these cases have agreed with the women, at least to the extent of denying that the facts alleged by the men in these cases constituted the crime of conversion of property. In doing so, they have, so to speak, denied the “conversion part” of the legal definition of the crime, not the “property part.” I mean by this, that they have not questioned the allegation that the sperm was, initially, the property of the man; they have agreed with the women that in the transfer of the sperm, the man transferred his property rights in the sperm to the woman or, for other reasons, the women's use of the sperm did not meet the legal definition of conversion of property. In Phillips v. Irons, the court identified the four elements of the tort of conversion as: “(1) plaintiff's right in the property; (2) plaintiff's right to immediate, absolute, and unconditional possession of the property; (3) defendant's unauthorized and wrongful assumption of control, dominion, or ownership over the property; and (4) plaintiff's demand for possession.”Footnote 41 The court rejected Phillips's appeal of the trial court's rejection of his conversion suit with this reasoning:

In this case, no set of facts could be proved under the pleadings that would entitle plaintiff to relief for conversion, as he cannot satisfy the requisite elements. Cases from other jurisdictions have recognized the existence of a “property right” in materials derived from the human body … ; however, plaintiff cannot show he had the “right to immediate, absolute, and unconditional possession” of his sperm. Plaintiff presumably intended, and he does not claim otherwise, that defendant discard his semen, not return it to him. “The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.” Plaintiff is unable to satisfy the second element needed to state a claim for conversion. In light of the foregoing, the third and fourth elements of conversion need not be addressed.Footnote 42

While the court did not explicitly hold that Phillips's sperm was initially his property, its reliance on the alleged absence of the second element, together with its explicit abstention on the final two elements suggests that it did not question this aspect of Phillips's suit. That is to say, it did not question the property paradigm's application to this case.

The property paradigm with respect to sperm also holds sway in cases where sperm has been frozen and could be used to fertilize an embryo either in vitro or in vivo. Sometimes the issue concerns posthumous reproduction. In an interesting, but all too brief, paper aptly titled, “Sperm as Property,” Bonnie Steinbock, motivated by the case of bequeathal of sperm for posthumous reproduction, challenges a particular way that the property paradigm is employed in these cases.Footnote 43 Steinbock focuses on the California case of Hecht v. Superior Court, Footnote 44 in which the court had to decide whether the sperm of a deceased man could be bequeathed to his former lover for purposes of reproduction. Steinbock challenges the reasoning the court apparently used in resolving the case. The court seems to have reasoned that the key question to answer in determining whether the deceased man, William Kane, had the legal power to bequeath his sperm to Deborah Hecht, was whether the sperm was Kane's property. If it was, he could bequeath it; if not, he could not. Steinbock believes that this gets the order of justification exactly backwards:

Cases like Hecht require judges to ask whether sperm is property because, if it is not, then it cannot be bequeathed by will. This suggests that we should first decide what property is, determine whether sperm is that sort of thing, and then conclude whether sperm can be bequeathed. However, this approach is backward. Whether sperm is property depends on what we think may permissibly be done with it. If there is a strong moral argument against allowing individuals to store sperm for the purpose of posthumous reproduction, then sperm should not be considered property for that purpose. If there is no such argument, sperm is rightly regarded as an asset that can be bequeathed by will.Footnote 45

It is worth separating two questions here. First, there is the question faced by the court in Hecht, which had to do with how to apply the law to this case. With respect to this question, I have considerable sympathy with the court. It may well be that the law requires reasoning of this form. But there is another question that arises here, one that involves taking a legislative stance—the stance not of a court applying a law but of a legislature considering the rationale for proposed legislation.Footnote 46 From this stance, I think Steinbock is exactly right in her criticism of the order of justification. Regarding this question, I think, the judgment that something is property represents a summary of potentially independent arguments about the various rights involved in the notion of ownership. The various rights, powers, and other incidents involved in ownership must stand on their own, so to speak. When a sufficient number of them stand, we are comfortable calling the thing in question the property of the agent holding those rights and powers.Footnote 47

While I have great sympathy with Steinbock's approach here, I think it grants too much to the property paradigm. In criticizing the court's reasoning as getting it backwards, she suggests that, while we cannot ground the judgment that Kane had the right to bequeath his sperm to Hecht on an independently grounded judgment that Kane owned the sperm, we can ground the judgment that Kane owned his sperm on the independently grounded judgment that he had the right to bequeath it. To be sure, Steinbock inserts an important qualification. She says, “[i]f there is a strong moral argument against allowing individuals to store sperm for the purpose of posthumous reproduction, then sperm should not be considered property for that purpose.” And, presumably, she means this qualification to apply to the next sentence as well. That is, she means to conclude, “[i]f there is no such argument, sperm is rightly regarded as an asset that can be bequeathed by will” for purposes of reproduction.

But the omission exemplifies the problem with the property paradigm. It is all too easy to move from a demonstration that an individual has some of the most central rights and powers of ownership to a conclusion that the individual owns the object in question. This is our moral consciousness “snapping to grid”; and it leads us into errors. It leads us to conclude, without warrant, that individuals have the full bundle of rights and powers usually attached to objects we are willing to call property when we have justified only a proper subset of these rights and powers. If we are serious about restricting the property right we are asserting to “that purpose,” what is added by calling the thing “property”? Why not just stop at saying that the individual has a right to perform the act in question?

Indeed, Steinbock herself goes far too quickly from the absence of a strong moral argument against allowing individuals to store sperm for the purpose of posthumous reproduction to the existence of a right of bequeathal by will. Consider the following situation. We have determined that there is no “strong moral argument against allowing individuals to store sperm for the purpose of posthumous reproduction.” Suppose, though, that we have also determined that there are strong moral arguments against each of the following: allowing individuals the right to destroy the sperm; allowing the sperm to be stored for this purpose beyond a very brief period of time, at which time it must be destroyed regardless of the wishes of the donors; allowing individuals to choose when, how, where, or by whom the sperm will be stored; and, importantly, allowing individuals to determine who may be and who may not be inseminated with the sperm. In this case, we could still say that the sperm is the man's property for the purpose of posthumous reproduction, but there is little point in invoking the language of property at all. So few of the incidents of property arise in the case that it is rather silly to think of this as the man's property in any sense. It is as if I said, pointing to the watch on my wrist, “This watch is your property for the purpose of looking at for the next several seconds.” And, importantly, in our imagined case, the incident of property that allows for bequeathal by will is absent—indeed, it is undermined by the strong argument we have found against that individual choosing who may use the sperm and who may not.

I believe that Steinbock's seemingly seamless move from a mere right to store sperm for purposes of reproduction to the right of bequeathal reflects a lingering influence of the property paradigm.

IV. Interests

Property is defined in terms of rights. If property is best understood along the lines of Honoré's account of ownership—and even if the details turn out to be wrong—in thinking about property, our attention is turned to the cluster of rights (and other incidents) that define property. And, if these are separable elements, then the determination that something is property will depend on how many and which of these elements are present and the degree to which they are present.

I agree with Steinbock that, in thinking these matters through from the foundation, we must place the question of what set of rights (and other incidents of ownership) are justified prior to the determination that an object is the property of some agent. And, then, the determination that the object is the property of that agent is really just a shorthand way of talking about the cluster of rights and powers in question. In my view, the discussion of what rights are justified depends crucially on what legitimate interests individual agents have. It is, I believe, the function of rights—their raison d'être—to protect certain important interests. But there are long-standing controversies about the relationship between rights and interests and I do not intend to try to resolve, or even to weigh in on, these disputes here. Rather, I hope to show that the moral problems to which I have pointed earlier are better framed in terms of balancing competing interests than in terms of whether or not an individual has enough of a bundle of rights to be reasonably considered ownership.

People care deeply about their own reproduction; they often have strong desires to reproduce under certain conditions or strong desires not to reproduce under others. These desires are important in people's lives, often central to their life plans. These desires are not, in general, morally suspect in the way that malevolent desires—or even desires for positional goods (goods the value of which depends on the status they confer relative to others)—might be thought to be. Because of this, they generally give rise to legitimate, morally significant interests. And, furthermore, they are interests that ought, prima facie, to be recognized by legal systems.

These legally cognizable interests in reproduction generate legally cognizable interests in the use to which our gametes are put. A couple pursuing offspring using in vitro fertilization has an interest in the fertility clinic combining the proper sperm and egg and implanting it in the proper uterus. Because of the artificial nature of assisted reproduction and the requirement for third-party involvement, these interests are generally protected by explicit contracts. Couples engaging in acts that could lead to reproduction have similar interests but, for a variety of reasons, explicit contracts are extraordinarily rare. Instead, we rely on custom and typical practice to set expectations. There may be no contract between a couple engaging in oral sex that the sperm not be used to try to produce a pregnancy, as was alleged in Phillips v. Irons and other cases,Footnote 48 without advanced notice. Nevertheless, such a use of the sperm is not reasonable for anyone to expect absent what we should surely consider the wrongful conduct of some other person. Furthermore, that conduct risks producing, and sometimes does produce, an outcome that is contrary to the legitimate interests of the man.

To retain the language of property, one could agree with the plaintiffs in Phillips and similar cases that the man has property in his transferred sperm for the purpose that it not be intentionally used for reproduction. But, here again, it is not clear what is added by the language of property. Certainly the defendants in these cases are right that with respect to any nonreproductive manner of using or disposing of the sperm, the woman is at complete liberty to do with it as she pleases. If one considers the full range of actions that might be taken with respect to the use or disposal of the sperm transferred by this act, surely the woman has a far broader range of dispositional control than does the man. But we overlook a very important interest if we allow the property paradigm to lead us to the conclusion that the sperm is a “gift—an absolute and irrevocable transfer of title to property from a donor to donee.”Footnote 49 If we allow our moral perception to be snapped to that gridline, the property paradigm has created a serious distortion of the moral situation.

What of the ownership of sperm transferred in voluntary genital intercourse? In this case, typically there is no subsequent future wrongful action that results in harm to the man's legitimate interests in not reproducing.Footnote 50 It would be a mistake, though, to think that in order for it to be true that the man has not transferred the right to use the sperm for reproductive purposes, the wrongful action has to be a subsequent act. Of course, contraception sometimes fails and when it does so through no fault of either party, each consenting party, having assumed the risk of such failure must assume the responsibility for the costs of the failure. However, if there is an intentional misrepresentation of one's use of contraceptive measures and the corresponding likely consequences of the sexual act—if, that is to say, one party intentionally leads the other to believe that the act of coitus has a much lower probability of producing a pregnancy than it would otherwise be reasonable for the other partner to expect it to have, and than it actually has—this is an intentional violation of that second party's serious reproductive interests. It is best not to view the transfer of sperm during sexual intercourse as a free gift of property.

And, if the transfer of sperm in voluntary genital intercourse is not a gift—a transfer of title of property from the man to the woman—then there is yet another problem with Okin's reductio of Nozick's argument. Mind you, it would be reductio enough if one showed that Nozick's theory implied that everyone is owned exclusively by both parents. It would contradict the claim of exclusive self-ownership and it would be a morally repugnant conclusion. But it would not be the conclusion that Okin advertises. Perhaps, in the way that Okin alleges that previous political philosophers have approached reproductive issues with gendered lenses that have obscured some legitimate interests, Okin herself has approached this issue with her own gendered lenses. Typically, males who engage in potentially reproductive behavior have legitimate interests in the reproductive uses of their sperm—interests that are ignored if we treat the transfer of sperm as the transfer of full ownership rights.

Finally, Steinbock's concern with sperm as property is provoked by the case of the bequeathal of sperm for purposes of reproduction. If we admit posthumous interests at all—or even interests in posthumous treatment—I think it is highly plausible that a man has a legally cognizable interest in posthumous reproduction. This seems especially true when the situation is one in which a man's life has been cut short. And a woman may have a legally cognizable interest in being impregnated with a dead husband's or boyfriend's sperm. Now, of course, in any case of reproduction, we have to remember that “baby makes three!” That is to say, in balancing interests affected by choices of whether or not to reproduce (or to allow or facilitate reproduction), we must also consider the interests of the potential products of procreation. As Steinbock notes, in light of the apparent disadvantages to children raised in single-parent families, one might have concern about facilitating, or even allowing, the intentional decision to bring into existence a child who will have no living genetic father.Footnote 51 But, of course, some posthumous reproduction will involve a family situation for the child that is indistinguishable from other artificially assisted reproduction procedures that are relatively noncontroversial. There may well be a fully engaged second parent in the child's life. In any case, we have not, as a society, shown much interest in effecting even slight discouragements to intentional single-parenting.

There are difficult issues here that have implications for a much wider range of cases. And, of course, in making these procreative decisions (and the related decisions about what procreative acts to allow or facilitate), we always face the dicey comparison between scenarios that involve different people and different numbers of people.Footnote 52 There can be reasonable disagreements about the strength of the various interests involved. But the debate is put on better grounds when it moves from a dispute over who owns the sperm to one about which legitimate interests are advanced and which are impeded by the various choices that we could make—that is to say, when we approach the basic underlying moral issues, leaving behind the property paradigm.Footnote 53

V. Conclusion

The way in which we are led to think about complex moral questions when we subsume them under the property paradigm is just one instance of a very common and generally useful pattern of reasoning: reasoning from stereotypes. It may frequently involve some distortion, but it is a cognitively efficient approach to complex problems. I have argued, though, that in some cases the distortions are of significant import and give us good grounds for declining to employ the property paradigm to address the moral issues at stake. Attempts to understand the nature of parental rights in terms of property rights provide a historical example of where the paradigm produces distortions that are too significant to tolerate. And, I have argued, we also see distortions produced by the property paradigm in our considerations concerning human gametes.

The moral of these ruminations is not that the property paradigm should be rejected wholesale. With respect to the watch around my wrist or the 1968 Cougar in my garage, I urge that we keep using the property paradigm—especially with respect to my Cougar. It is a useful simplification of the moral situation, I think, and it does not do much harm there. With respect to parental rights over children, it produces terrible distortions, as even its early critics saw. And, I think, it also distorts our discussion of moral and legal issues concerning reproductive uses of sperm. It invites us to avoid the nuances that are necessary for a sensitive moral evaluation of the situation. This is an invitation we should decline.

Footnotes

*

For very helpful comments on an earlier draft of this paper, I'm grateful to Dan Hubin, Piers Norris Turner, and the other contributors to this volume.

Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.

* For very helpful comments on an earlier draft of this paper, I'm grateful to Dan Hubin, Piers Norris Turner, and the other contributors to this volume.

References

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.

6 Ibid., 123.

7 Waldron, Jeremy, “Property,” in Zalta, Edward N., ed., Stanford Encyclopedia of Philosophy (Stanford, CA: Center for the Study of Language and Information). http://plato.stanford.edu/entries/property/ (accessed August 28, 2010)Google Scholar.

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.

9 Archard, David explores some of implications of the proprietarian model of parental rights in “Do Parents Own Their Children?” The International Journal of Children's Rights, 1, no. 3 (1993): 293–301CrossRefGoogle Scholar.

10 Filmer, Robert, Patriarcha: of the Natural Power of Kings (London: Richard Chiswell, 1680), 12Google Scholar.

11 Ibid., 13.

12 Tyrrell, James, Patriarcha non monarcha (London: Richard Janeway, 1681)Google 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.

14 Ibid., 14–15.

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)

16 Ibid., 15–16.

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.

19 Ibid., section 55.

20 Nozick, Robert, Anarchy, State, and Utopia, (New York: Basic Books, 1974), 288Google Scholar.

21 Ibid., 288.

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.

35 Ibid., 83.

36 Wallis v. Smith, 22 P. 3d 682, 683 (NM: Ct. App. 2001)CrossRefGoogle Scholar.

37 Phillips v. Irons, 354 Ill. App. 3d 1164 (Ill. App. Ct. 1st Dist., 2005)Google Scholar.

38 Ballentine's Law Dictionary, 3d ed. (Lexis Law Publishing, 2010)Google Scholar.

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), 150–61CrossRefGoogle Scholar.

44 Hecht v. Superior Court 20 Cal. Rptr. 2d275 (Ct. App. 1993)Google 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.