Honor your father and mother, that your days may be long.
—Exodus 20:12INTRODUCTION
As religious law, culturally espoused adage, contract, and recipe for reciprocal care, the “honor commandment” looms large as a societal construct, especially with 76 million baby boomers in the United States approaching old age. The coming “silver tsunami” of aging baby boomers will change the face of elder care, testing the binding power of this informal norm. This generation's high rates of divorce, remarriage, and single parenthood combine with an overall decreased birthrate, increasing number of women in the labor force, and higher rates of geographic mobility to expand and complicate the traditional support systems for providing elder care. Almost two-thirds of older people depend on family and friends for caregiving, and most of those caregivers are women.Footnote 1 Indeed, women are more likely to drop out of the workforce to care for their parents, which has long-term impacts on their own ability to remain self-supporting.Footnote 2
This article explores how the honor commandment persists as a normative ethic in the lived practice of elder care and the ways that it is supported by, or at odds with, secular legal imperatives of elder care. In addition to legal, sociological, and theological source texts, we incorporate direct narratives of family caregivers in order to provide a “thick description,”Footnote 3 “from below”Footnote 4 of how young and mid-life adults who came of age in an era of high family fragmentation are experiencing the aging and dying of their parents and parent figures. During the interviews, we explored how the honor commandment informed or challenged their lived practice of elder care, regardless of whether their childhoods were characterized by familial harmony, estrangement, or abandonment.Footnote 5 Their complex responses provide a qualitative accompaniment to the theological complexity of this commandment, a commandment that intertwines aspects of covenant, blessing and curse, and chesed (acts of grace or loving kindness).Footnote 6 For example, these stories echo that told in the book of Ruth;Footnote 7 like Ruth, many respondents showed a strong loyalty to kin with whom they were related solely by affinity, and they made sacrifices of time and money to care for the complex needs of a seriously ill parent figure. Secular bodies of law that enforce or encourage the fulfillment of the honor commandment tend to be equally complex, including state filial responsibility laws, elder abuse statutes imposing sanctions for failing to support parents or for acting negligently or abusively towards them,Footnote 8 and the federal Family and Medical Leave Act of 1993 and corresponding state laws that provide support for caretaking.Footnote 9
We argue that the honor commandment continues to support practical adherence to largely unknown legal obligations. The dimensions of family caretaking in the United States—approximately one-fifth of all adults are providing care to someone over the age of fiftyFootnote 10—and the lack of enforcement of filial responsibility lawsFootnote 11 suggest that consciousness of these laws is not a motivating factor in providing care. Indeed, in our interviews, we found little acknowledgement of secular law. As Robert Ellickson pointed out in an analogous context in 1986, investigating the law in action shows how people manage to act based on informal norms and shows the limitations of the law as a form of coercion.Footnote 12 Yet, by setting out basic obligations, the law reinforces these informal norms and serves an important role, a role that could, and should, be strengthened since caring for aging and ill parents can impose burdens on the caretakers that secular laws often fail to alleviate, particularly because of changes in the structure of twenty-first-century families.
To best navigate the complexity of the theological, lived, and formal secular expressions of the honor commandment, we divide the article into several sections. We begin with providing historical and theological background to the honor commandment, showing its resonance with the twenty-first century reality of a “silver tsunami” in elder care. Building on this background, we organize the complex demands of the honor commandment into the four core categories of caretaking: providing daily care, making health-care decisions, handling financial issues, and expressing an attitude of honor. We describe the activities involved in these four categories by drawing on national data, and we supplement the national picture with the narratives of our interviews. We then analyze those four manifestations through the lens of secular laws that enforce or support families and adult children in living out the honor commandment. In closing, we suggest potential reforms that could better facilitate honoring seriously ill elders and the grown children who care for them.
BACKGROUND
At the center of the Ten Commandments is the fifth commandment:Footnote 13 “Honor your father and your mother, so that your days may be long in the land that the Lord your God is giving you.”Footnote 14 A link between divine and human realms,Footnote 15 this commandment belongs both to the first four commandments, which refer to acceptance of and obedience to God, and to the last five commandments, which deal with human relations. It stands squarely between the fourth command to honor the Sabbath, in which God is honored as Creator, and the sixth commandment, prohibiting murder, in which the created human is declared inviolate. Significantly, it serves as a “bridge commandment” in that it takes the reader from how humans relate to God to how humans relate to the world, connecting different forms of honoring.Footnote 16 Biblically, Exodus 20:1–17, where God first gives Moses the Ten Commandments, can be traced to the E SourceFootnote 17 along with Exodus chapters 20–24. In the E Source's framing of the commandments, the laws are a covenant, and even though the text separates Moses from the people, it accents that all the people together share the ratification in blood and accept the terms.Footnote 18 The Ten Commandments, like all 613 laws in the Hebrew Bible, are intended to order humanity's right relationship to God and to others.
Historically, religious scholars have noted the complexity of interpreting and living according to the honor commandment. To begin, unlike the patriarchal lens of most ancient theology and biblical legality, the commandment explicitly includes both father and motherFootnote 19 as deserving of honor, with daughters and sons equally responsible for the task and attitude of honor.Footnote 20 The honor commandment intersects with contemporary perspectives in feminist theology and ethics and feminist legal theory and jurisprudence that view individuals as embedded within private and public spheres of influence that hold valid demands on our time and talents.Footnote 21 The commandment makes clear “religion's call to be responsive to the needs of others recognizing our shared human finitude and vulnerability.”Footnote 22 To the extent it particularly burdens women, however, many theorists are highly critical of the terms of this embeddedness and the ways in which it can make demands and circumscribe women's lives.Footnote 23 It has also been extrapolated to include respect due to any authority figure,Footnote 24 thus the flourishing of the community as a whole occurs when individuals choose to care for the good of others, beginning with parents. Jewish, Protestant,Footnote 25 and Catholic traditions stress that the commandment reaches beyond day-to-day tasks and monetary support to a general attitude of reverence owed to the formal role played by a mother and father.Footnote 26 While the commandment may begin with concrete and rather terse terms for how to honor parents, “one cannot just go through the motions.”Footnote 27 Honoring a parent is the intention to do so, the acts themselves, and the attitude with which the acts are performed.Footnote 28
The honor commandment has been interpreted broadly to include the filial right and responsibility of custodial service, financial support, and commitment to an attitude of honor and reverence that excludes shaming or abandoning “dishonorable” parents.Footnote 29 The commandment's lack of protective caveats or defined boundaries specifying acceptable compliance lead religious scholars to surmise that maintaining the spirit and letter of the honor commandment over the life span is difficult. The Hebrew word for honor, kibbud, also means “heavy or weightiness” and is meant to reflect both the weight of the parents who are to be revered but also the difficulty of the task.Footnote 30 Part of the challenge of the commandment is discerning how to honor a parent who has failed in his or her parenting responsibilities. Indeed, notwithstanding the ideal of the honor commandment, it must be balanced with acknowledgment of the way in which eldercare often proceeds under less than ideal parent-adult child relationships. Our focus on the honor commandment mirrors its central role in the Jewish and Christian traditions, and comparable duties of elder care and filial piety are found in the normative frameworks of many other world religious and legal systems.Footnote 31 Indeed, the eldercare dilemmas associated with the honor commandment are similarly powerful in Islam, the Asian religions of Hinduism, Buddhism,Footnote 32 and especially Confucianism.Footnote 33 Asian societies,Footnote 34 particularly Japan and China, are world leaders in confronting the dilemmas of aging societies and in encouraging the efforts of individuals and families to honor their elders even as the duties of eldercare grow increasingly onerous.
These historical and theological interpretations of the honor commandment now intersect with the care needs of twenty-first-century elders and their families. As 76 million American baby boomers approach old age,Footnote 35 they bring fresh questions and new demands to caregiving, illness, and end of life. In 2002, Mary Linn Maples coined the term “silver tsunami” to describe the soon-to-come wave of aging baby boomersFootnote 36 that would begin crashing against the shores, beginning on January 1, 2011, and continuing for twenty years, during which 10,000 baby boomers would reach the age of 65 every day.Footnote 37 As this demographic cohort ages, several trends converge to create a potential caregiving crisis.Footnote 38 The number of seniors over eighty—will grow from 20 million in 2030 to almost 35 million by 2050.Footnote 39 The number of available caregivers for each person over eighty-five is projected to drop from seven to three.Footnote 40
In the twenty-first century, the default family caregiver continues to be female, with the “average U.S. caregiver a 49-year-old woman who works outside the home who spends nearly 20 hours per week providing care to her mother for nearly 5 years.”Footnote 41 Women who exit the labor force to provide care lose not only income but also opportunities to save for their own retirement; the gendered poverty gap increases with age, and 11% of women over the age of sixty-five, compared to 6.6% of men, are living in poverty.Footnote 42 The gendered impact of caregiving may change as trends in the younger cohort of the sandwich generation caregivers are beginning to move towards greater gender equality.Footnote 43 Indeed, contemporary shifts in the labor force, where four in ten American households with children under age eighteen now include a mother who is either the sole or primary earner for her family, may change the face of family elder care, although that change will be slow.Footnote 44
As this demographic cohort ages, several social, technological, and economic trends converge to create a potential caregiving crisis.Footnote 45 The size of the baby boomer generation;Footnote 46 advances in health care, which allow those over sixty-five to live longer with multiple chronic conditions;Footnote 47 and changes in family structure such as delayed marriage and childbirth, high rates of divorce,Footnote 48 and small family size mean the burden of care will fall on fewer people in a family.Footnote 49 The McKinsey Global Institute projects that by 2015, there will be 21 million unmarried households of persons aged fifty-one to seventy—46% of all boomers—creating twice as many unmarried households in that age group as existed in 1985.Footnote 50 Baby boomers continue to divorce in high numbers, leading to a trend coined “gray divorce.”Footnote 51 Due to changing family patterns, society's understanding of kin has expanded beyond the traditional practices of heterosexual marriage and natural childbearing.Footnote 52 Indeed, changes in the structure of the American family over the past half century are causing a cultural rethinking of what constitutes a family. In 1968, the famed anthropologist David Schneider was able to proclaim that Americans define “my family” as “a unit which contains a husband and wife and their child or children.”Footnote 53 Today, with more than 40% of children born in nonmarital families, with the number of cohabitants increasing exponentially, with blended and stepfamilies becoming more pervasive, and with declining rates of marriage, cultural conceptions of “family” are based not just on biological and marital ties but also on legal, functional, and social ties.Footnote 54 All of these changes complicate the means and methods that seriously ill individuals use to access a critical economic and practical commodity in elder care: family caregivers.Footnote 55
An overwhelming majority of Americans say that they would feel obligated to provide assistance to their parent in a time of need.Footnote 56 And, in fact, many already are. In 2009, about 42.1 million caregivers in the United States, 39% of the population, provided care for an adult with limitations in daily activities.Footnote 57 The National Association of Family Caregivers calculates that 1.4 million disabled elderly Americans live in long-term care facilities, but 4.2 million disabled elderly live in their own homes and communities;Footnote 58 informal care is the norm three to one over formal care. Despite the high incidence and prevalence of family caregivers, they remain largely invisible. Elder care has traditionally fallen into the private sphere of a household, with women assuming the obligation to nurture and care for an aging, debilitated, or seriously ill parent.Footnote 59 In the absence of spousal care, adult children assume the bulk of elder care,Footnote 60 and daughters are twice as likely as sons to care for an elder, including in-laws.Footnote 61 As third-wave feministsFootnote 62 have noted, there is both a “material and cultural” aspect that can be seen in the living of the honor commandment; thus, our qualitative interview methodFootnote 63 helps in grounding the statisticsFootnote 64 by offering a “thick description” culled “from below.” Our methodology was designed to provide insight into our respondent's actual experiences and interactions, and the interviewing methodology allowed the investigators to “build rapport and trust,” thereby increasing the comfort level as people shared intimate details of their lives.Footnote 65 While we did not obtain a comprehensive, nationally representative sample, we were able to learn more personalized information about each participant.Footnote 66
In asking each interviewee to reflect on the commandment to honor one's father and mother, we sought to reveal what motivates a lived ethic of being responsive to the needs of others that both acknowledges and reveals our shared human finitude and vulnerability.Footnote 67 For many of our respondents, the responsibility to honor one's parents was not particularly complicated; they felt it recognized their unique role as co-creators with GodFootnote 68 and was based in gratitude for the ways that they had been cared for by parents in their vulnerable youth. Just as the book of Ruth in the Hebrew Bible serves as an illustration for the honor commandment,Footnote 69 our respondents provided us with modern-day corollaries of creative and broad interpretations of family and care.Footnote 70 Ruth moved to her mother-in-law Naomi's homeland, even though Ruth herself was considered a foreigner. After the death of her husband (Naomi's son), Ruth accepted the burden of honoring Naomi as a parent figure. Naomi was, however, her parent only by marriage, a relationship that technically falls outside of the honor commandment's demands.Footnote 71 Ruth chose to comply as an act of chesed, which is “the essential quality of a covenantal relationship … and the criterion (of loyal kindness) on which human character is judged throughout the book.”Footnote 72 She experienced the kibbud, or burden, of fulfilling this commandment; she left her homeland and family of origin, resourcefully entered the gleaning system (the social safety net of their time), and took action to continue the family line through marriage to Boaz, their next of kin. Thus she companioned Naomi from the temptation of bitterness and grief to the blessing of new kinship in her old age. As in biblical times, modern caregivers must exhibit personal initiative, an awareness of and reliance on various forms of the social safety net, and in many cases, display chesed through acts of loving generosity that go beyond the demands of the law.Footnote 73
The allegory of Ruth spoke to an Israelite audience returning to Jerusalem from exile. The Israelites had to negotiate between the views of the books of Ezra and Nehemiah, which ostracized the foreign spouses and families of the returning Israelites, and the book of Isaiah, which welcomed the outsiders into the religious community.Footnote 74 Twenty-first-century families wrestle with outsiders in the form of stepparents, ex-stepparents, and significant others of their mothers and fathers.Footnote 75 The stories of our respondents resonate with Ruth; the grown children who volunteered for interviews were those who had provided caregiving for their parents, stepparents, and ex-stepparents and, at heart, were motivated by chesed, loving-kindness.Footnote 76
TWENTY-FIRST-CENTURY INTERPRETATIONS OF HONOR
This section explores four of the most common aspects of what it means to care for an aging parent: providing daily care, making healthcare decisions, handling financial issues, and expressing an attitude of honor. While the exploration in this section of living the honor commandment is grounded in twenty-first-century family narratives shared in our interviews, these four sets of actions are typical of children’ experiences of providing care.Footnote 77
Providing Daily Care
Honoring a parent begins with directly or indirectly meeting their physical needs. Providing care can range from instrumental activities of daily livingFootnote 78 such as yard work, transportation, and grocery shopping to activities of daily living such as meal preparation, feeding, bathing, dressing, toileting, and providing mobility assistance.Footnote 79 Jewish scholars note that a grown child is obliged to support a mother or father in these activities: to feed them or give a drink, to clothe them, put on their shoes for them, and lead them.Footnote 80 Martin Luther writes: “You are also to honor them with your actions (that is, with your body and possessions) serving them, helping them, and caring for them when they are old, sick, feeble, or poor.”Footnote 81 The Catholic catechism also reminds grown children of their responsibilities towards their parents. “As much as they can, they must give them material and moral support in old age and in times of illness, loneliness, and distress.”Footnote 82 Overall, respondents accepted the need to provide the kind of care at the end of life that parents are expected to provide for their children at the beginning of their lives. What was striking was how little of this care was outsourced to paid professionals, whether because of choice (or, in some cases, necessity).Footnote 83
Most of those interviewed provided some form of ongoing help to their parents.Footnote 84 They described it in matter-of-fact terms, as the respondent who said, “I just wash dishes, take turns cleaning the living room and stuff, and our rooms, the bathrooms, cleaning around the yard and stuff, just keeping the house up while my mom and him would be in the hospital. We would always keep the house up.”Footnote 85 Another respondent's father first resisted her attempts to offer this same kind of support, but eventually he relented: “I would always go and, you know, take care of him, clean his trailer. … we'd cook and bring him food. You know, I'd wash his clothes. I took care of him.”Footnote 86 One respondent's father had been married three times, so the siblings and stepsiblings coordinated work schedules in order to take him to appointments and provide daily care: “He would tell us all of his appointments and what needed to be done once he was diagnosed. So we would schedule—okay, if this person had off this person could go. I think that's another reason why my stepsister moved in ’cause she was kinda like in between jobs, in and out at that time, so she was able to conveniently take him more than we would.”Footnote 87 On the whole, honoring a sick parent began with meeting their physical needs for bodily comfort and shelter.
Making Health-Care DecisionsFootnote 88
Although care often constituted providing meals, housekeeping, and other daily tasks, children also stepped in to help handle their parents’ interactions with the medical system.Footnote 89 Children's actions ranged from setting up doctor's appointments to serving as a health-care proxy. For example, one respondent served as the agent under both a financial and health-care power of attorney for his divorced mother. At first, his mother refused treatment for cancer based on the cost and her lack of insurance. In response, he convinced her to allow him to play a larger decision-making role in her finances and health care.Footnote 90 As his mother's condition declined, he moved her in to his home and enrolled her in hospice care.
By stepping in (and stepping up) in this way, children functioned as their parents’ “next of kin.” Next of kin is a foundational concept in the law, medicine, religion, and culture. While kinship structures can be extensive,Footnote 91 the “next of kin” is considered the person or persons most closely related by blood or affinity, who has special responsibilities. In the book of Ruth, Naomi, seeks out Boaz, their family's “kinsman-redeemer”Footnote 92 who could act as next of kin in providing an heir and in claiming the family land. However, prior to Boaz's marrying Ruth, the person who acted as next of kin in terms of providing daily care, financial support, and an attitude of honor to Naomi was her daughter-in-law, Ruth.
In modern times, the need to identify a functional next of kin continues, and selecting the appropriate person becomes more difficult at a time of changing family structures. When blood or affinity relationships are missing or estranged, individuals may assume that the person who will serve as their next of kin is a close friend, a step-sibling, or even the leader of a faith community.Footnote 93 For our respondents, serving as the next of kin took different shapes based on the marital status of the seriously ill and dying parent. In married-parent families, although the spouse served as the next of kin, the responsibility was typically shared communally. The majority of respondents made decisions jointly with the parent concerning stopping aggressive treatmentsFootnote 94 and choosing medical interventions or types of hospice care.Footnote 95 Heavy use of the pronoun “we” described how the family as a whole owned the decisions of the next of kin. One respondent explained how “we decided to pull the plug,”Footnote 96 even though ultimately the decision was his mother's to make on his father's behalf. Grown children in families where the parents were in the first and only marriage were also often trusted to make critical financial decisions on behalf of the family.
In single-parent families, where the grown child became the parent's next of kin, the pronoun “I” was used to describe taking responsibility for caregiving tasks, financial obligations, and surrogate decision making. Although they sought various levels of informal support from their spouse, siblings, and other parent (ex-spouse), the full legal and financial responsibility fell to them alone. Keeping with the theme of honor as kibbud, or burden, the weight of those life-and-death decisions fell heavily on the grown children. One respondent explained his thought process concerning removing his father from life support: “I postponed it. I want to be sure about it. So I went home and just prayed on it—couldn't really sleep … . That's one of the hardest things I ever had to do was to have to go ahead and pull the plug.”Footnote 97 Like him, many respondents struggled with their responsibilities. Even when the wishes of the parent conflicted with what they thought would be the best course of treatment, they respected those wishes.Footnote 98 Nonetheless, the final experiences of caretaking and honor varied by family type.
Remarried families were often marked by conflict; the grown child tended to feel excluded from decision-making by the stepparent who served as next of kin. Respondents tended to use the pronouns “she” and “he” to describe the communication and surrogate decision-making process.Footnote 99 Exclusion could be painful when interpreted as intentional on the part of the stepparent serving as next of kin. Caregiving and the surrogate decision-making process either reinforced familial coherence or reflected existing conflicts (albeit with some families engaging in unexpected behaviors, such as when an ex-spouse stepped in to provide care). Much like the story of Ruth and Naomi, the likelihood of a non-blood relative serving as next of kin depended on the quality of the relationship between the members.Footnote 100 Even when a respondent was unable to provide physical or financial care, advocating for the wishes of their parent remained a treasured and serious responsibility held by the grown child serving as the surrogate decision maker.Footnote 101
Providing Financial Care
Providing adequate care involves not only accommodating the daily needs of an aging or sick parent and advocating for their wishes concerning medical treatment but also accepting responsibility for managing—and sometimes actually paying—the costs related to custodial care, shelter, and even certain medical treatments. Most parents and the grown children we interviewed were working-class based on education level and current job, although a few were comfortably in the middle class.Footnote 102 One of them explained how he and his brothers had to convince their father to seek treatment despite the potential cost: “[W]e really, really pushed him to go to M.D. Anderson. We really wanted him to go out there just because they're the best. He'd say, ‘It costs this and this.’ And I'm just like, ‘I really don't give a shit what it costs. That's not an issue. Me and my brothers do very well thanks to you all giving us a good start. Trust me. It ain't a problem.’”Footnote 103 This respondent created an elaborate spreadsheet with straightforward formulas for splitting the costs of care and, ultimately, the burial costs, between the three children. The coupling of responsibilities for finances and actual physical and emotional care can complicate relationships and lead to conflicts of interest and emotions those caregivers must seek to resolve.Footnote 104 Not for nothing the classic Jewish rabbinical scholar, Moses Maimonides, identified laws on the eight levels of almsgiving and the relationships between givers and recipients of aid.Footnote 105
Because the majority of those interviewed were working class and the parents were not yet eligible for Medicare and had not applied for Medicaid, some respondents coordinated collecting money from extended family members to cover medical treatment and others even took on a second job.Footnote 106 The financial implications for children included paying bills or managing health-care costs for their parents; in turn, this affected the children's own economic well-being. As is true nationally,Footnote 107 many of our respondents changed their work schedules or cut back on work hours in order to care for their parents. Many of the grown children also reported speaking openly and honestly with their employer about their scheduling needs or about the short-term crisis situation they faced, and they arranged shift changes or time off informally. Some depleted their entire life savings in order to give the parent a “proper burial.”Footnote 108 While the direct costs of caregiving can be immense, when caregivers stop working or shift to part-time work, this has long-term effects on their social security payments.Footnote 109 Because women continue to function as the primary familial caregivers for the elderly, this has become a gender-equity issue.Footnote 110 Indeed, as is true nationally, women interviewed were more likely to make compromises with their work schedules to accommodate physical caregiving, while men were more likely to be involved in financial and medical decision-making.Footnote 111 Overall, respondents did the best they could to provide stable support and appropriate medical intervention despite the costs, and felt that money should be spent to memorialize the life of the parent.
An Attitude of Honor
Ultimately, respondents spent the most time assessing whether their caring action or inaction encompassed an attitude of proper respect for their now deceased parent figure.Footnote 112 For those respondents who respected the quality of parenting by their parent or stepparent, fulfilling the honor commandment was easier than for those who had experienced other types of parenting.Footnote 113 To be clear, many of our respondents expressed respect, regardless of whether they experienced close intensive relationships, such as where a grown child was fully enmeshed in the daily rhythms of that parent, or more distant relationships, where grown children remembered a stepfather attending a softball game or caring for them during a childhood illness.Footnote 114
Motivation to honor lay in an impulse to reciprocate the caregiving tasks and compassionate attitude shown them during their childhood. Many believed that elder care was “owed”Footnote 115 to their parents as an expression of “reciprocal care.”Footnote 116 This reciprocity was not contractual or understood as a one-to-one arrangement of reciprocity (“payback”), nor due to any sense of potential legal obligation.Footnote 117 It was instead seen as an extension of a lifelong relationship of mutual care and support with the parent. In a religious context, this contract may be understood as a covenant where parents and child are bound to each other,Footnote 118 where the parent's obligation to teach the child is mirrored by the child's obligation to honor the parent.Footnote 119 For many, an environment and ethos of honor had been established for their family in their childhood by the loving words and actions of their parents.Footnote 120 For many, the honor commandment served as an explicit motivation for their care.Footnote 121
In contrast, past experiences of dishonorable parenting fundamentally affected children's interpretation of the honor commandment.Footnote 122 Dishonorable behavior was also broadly defined, ranging from parents who had abandoned their children at some point over the life cycle to parents who exhibited other negative behaviors often stemming from substance abuse. In some cases, adult children sought reconciliation with parents who had been and continued to be verbally abusive.Footnote 123 A few of the respondents used the experience of non- or disrespectful parenting to nullify the implied agreement of reciprocal care.Footnote 124 However, many respondents felt obligated to honor a parent in need despite emotionally difficult behavior, as a response to the physical, financial, emotional needs of the suffering and dying parent. They recognized the dangers, however, and struggled to protect themselves from potential abuse. As one respondent said of her emotionally abusive father, “I tried to figure out a way, what are my terms to be able to carry on a relationship with him that doesn't transgress against me and dishonor me, but at the same time maintains an appropriate parent relationship that you can carve out of a family that has the kind of history that we had.”Footnote 125
They developed coping mechanisms that allowed for an acceptable level of honor to be expressed while tempered by healthy personal boundaries.Footnote 126 Respondents differentiated between the person of their parent and the parent's actions or addictions, sometimes honoring the conversion of a parent from substance abuse to sobriety when the sobriety led to repentance and reconciliation; some respondents honored the parent by simply choosing not to be ashamed of them or not speaking poorly about them publicly.Footnote 127 For some respondents, the grace and love they believed they received from God led them to show grace and love to their parent.Footnote 128 Three respondents chose to honor and care for parents who continued to exhibit verbally abusive behavior or destructive behavior most likely stemming from mental illness.Footnote 129 Establishing healthy boundaries was very challenging for them. They recognized the difficulties but managed by drawing on their faith, utilizing talk therapy, and drawing firm physical and emotional boundaries. That said, we were cognizant of the fact that the respondents were 62—out of the more than 1000 invited—who self-selected to undergo a two-hour research interview into some of the most vulnerable of human experiences. These people may be outliers and especially resilient.
No respondents described situations of elder abuse, the “underbelly of reciprocity.” Even in situations where the parent had been or was verbally abusive to a grown child, respondents noted that neither they nor their siblings had returned the abuse. (Of course, we would have been surprised had they admitted to doing so, but it was clear that the abuse they had undergone did not prevent them from providing care.) Family members commit most elder abuse, women are more likely than men to experience the abuse, and the incidence of abuse increases with age.Footnote 130 Particularly as the number of families with elder stepparents increases in the future, so too may the risk for abuse. Stepchildren are at greater risk for abuse, so the converse may also be true: stepparents will be at greater risk for elder abuse.Footnote 131
In this section, we have described the four main manifestations of the honor commandment that range from quotidian acts of care, to monetary sacrifices, to healthcare advocacy, to the general presence and character of the grown child. In the next section, we explore how secular laws have sought to interpret, enforce, and support these values and actions.
LEGAL OBLIGATIONS
While the honor commandment represents a theologically based obligation, a number of secular laws seek to reinforce an attitude of honor toward our elders; the lived experiences of the study respondents provide qualitative information about the utility (and impact) of these laws. Following the four categories presented in the last section, we address the corresponding secular laws and assess their strengths and weaknesses.
Support for Daily Care Demands
The Family and Medical Leave Act (FMLA)Footnote 132 offers the best and most direct form of support to informal caregivers in need of time off from paid employment in order to meet the care needs of a family member. The FMLA allows eligible employees to take up to twelve weeks of unpaid, job-protected leave from work for medical reasons related to a spouse, child, or parent.Footnote 133 The FMLA is often used for parental leave, but it also can be used to care for a spouse, a parent, or for someone who has acted as a parent.Footnote 134 Indeed, the Senate report accompanying the act recognized the importance of family caregiving for the increasing number of older people,Footnote 135 although the formal findings at the beginning of the actual statute do not explicitly recognize the aging population.Footnote 136 The most frequent reason for taking FMLA leave is for the employee's own illness, and less than one-fifth of all leaves are to care for a parent.Footnote 137 Almost half of all leaves are less than ten days.Footnote 138 While the FMLA takes one step towards recognizing the needs of elder care, it has numerous inadequacies that prevent its wider utilization.
No one interviewed mentioned the FMLA, although many were supported by their employer in taking vacation leave, leaving work early during an emergency, taking “comp time,” or working a flexible schedule.Footnote 139 That said, even if they had known about the FMLA, there are many limitations to the benefit that would have affected them. For example, eligibility is limited in several ways. First, the employer must be covered; the Act does not reach private employers with fewer than fifty employees at any one workplace, but does apply to all public agencies. While comparatively few workplaces (under 20%) are covered by the FMLA because of their size, close to two-thirds of all American workers are employed at one of the covered sites.Footnote 140 Second, the employee must have worked for the employer for at least twelve months, with a minimum of 1250 hours over the previous twelve-month period, and at a location where the company employs more than fifty employees within seventy-five miles. Third, to qualify for leave, the health condition must be “serious,” which means inpatient care or “continuing treatment by a health care provider.”Footnote 141 The model of caregiving is based on serious health conditions rather than the types of chronic illnesses involved in aging. Thus, the requirement of a serious health condition does not cover many of the situations in which elder people need care;Footnote 142 nor does it cover leave for funerals or mourning (unless that results in the employee's own serious health condition). Third, although it covers care for a parent or someone in loco parentis, it does not cover grandparents or stepparents who may not have parented throughout the employee's childhood.Footnote 143 And finally, unpaid leave is unrealistic for many employees. The direct and indirect costs of care can outweigh the value of unpaid time off. The financial value of unpaid caregiving is approximately $522 billion each year, more than what the nation spends on Medicare and on Medicaid.Footnote 144 However, the financial gains of society often come at the expense of the family caregiver. Over a lifetime, caregivers lose on average $659,139 in wages, social security, and pension benefits that they would have otherwise received.Footnote 145 Caregiving affects the health and productivity of employees. Meeting family caregiving demands causes higher rates of absenteeism, turnover, and early retirement, and costs US employers between 11.4 and 29 billion annually.Footnote 146 In terms of covering the direct costs incurred for caring for a seriously ill loved one, there are tax exemptions allowed for the costs of care.Footnote 147 However, no respondents mentioned seeking qualification for a tax exemption to recover the costs of providing care. Many could have been eligible based on the level of disability and the low levels of income of the parents combined with the type of hands-on care provided by the grown children in covering the costs of medications, care, food, and transportation. The potential $3000 tax break could have been a helpful relief.
On a positive note, the FMLA does guarantee some support for employees who provide care for their relatives. It makes available a total of 12 weeks per year, time that (as noted above) can be taken in shorter increments, and the wording of the statute is gender-neutral. While federal law does not require that leave be paid, almost half of all employees reported receiving full pay, typically through regular paid vacation leave, sick leave, or comparable arrangements.Footnote 148 Morally and jurisprudentially, the statute also facilitates caregiving by adult children, assuring them that they will not be penalized, instead of punishing a lack of care as filial responsibilities laws do. Some states have enacted their own laws that often provide broader coverage than what is available under federal law.Footnote 149 Three states provide paid leave,Footnote 150 and a few states even allow leave for taking a family member to a health care appointment.Footnote 151 Moreover, some individual employers offer additional forms of leave other than those that are legally mandated. For example, they may provide brief periods of bereavement leave upon the death of specified family membersFootnote 152 or for routine health care appointments.Footnote 153 The FMLA does provide some limited protection but should be expanded to better serve all caregivers and to reflect the often long-term demands of elder care.
Support for Surrogate Decision Making.
Families generally think little about who is next of kin until a health-care crisis or a death.Footnote 154 Indeed, while most Americans want to make sure that their families are not burdened by tough medical decisions,Footnote 155 only about one third of baby boomers have any type of a living will, and that may or may not include a do-not-resuscitate order or formal designation of a health-care proxy. Similarly, when it comes to financial decisions, few individuals have signed a durable power of attorney. This was certainly true of our sample, in which few respondents discussed their parents’ advance planning.
All states have a formal legal mechanism for people to express their preferences as to who should make medical decisions on their behalf if they become incapacitated through preparing advance medical directives.Footnote 156 Health-care proxy laws establish a list of preferred decision makers, favoring spouses and children over other potential surrogates, and health privacy laws affect the receipt of information by family members.Footnote 157 Moreover, in 1990, Congress enacted the Patient Self-Determination Act, which requires most health-care institutions to provide information about advance health-care directives to adult patients when they are admitted,Footnote 158 and many of these institutions use the highly accessible 5 Wishes document created by Jim Towey, the former legal counsel for Mother Teresa.Footnote 159 Where there is no formally nominated surrogate, most states have laws that designate who is entitled to make medical decisions for an incapacitated person. In Louisiana, where all the deaths in our research occurred, priority is given to a spouse (in the absence of a separation) and then to children.Footnote 160 Louisiana also offers a form of physician orders for life-sustaining treatment (POLST), the Louisiana Physician Orders for Scope of Treatment (LaPOST), which could have communicated the end-of-life-care wishes of the deceased individuals across care settings,Footnote 161 but no respondents mentioned LaPOST.Footnote 162
In reality, the surrogate decision maker may also act as a guardian, advocate, health historian, and informal caregiver, assisting medical professionals in developing goals for treatment, accessing legal documents, and personalizing religious rites and rituals by interpreting and translating the relative's values and preferences.Footnote 163 The legal role thus represented only one component of the larger set of responsibilities assumed by the next of kin.Footnote 164 Although most of those interviewed knew nothing about the legal framework, the law, in effect, mirrored their assumptions about who would assume the decision-making role. Indeed, few families disputed the de facto understanding of the person acting as next of kin. Becoming the next of kin was step one. While the surrogate's assumption of responsibilities was comparatively smooth in both married parent and single parent families, it was more controversial in remarried parent families; indeed, other family members were likely to assess the competence of the person serving as next of kin. Some then supported the surrogate's medical choices, while others contested them, attempted to undermine, or even to usurp their decisions, although no one ever took legal action.
Filial Responsibility Laws and Financial Care
Filial responsibility statutes impose civil and, sometimes, criminal liability on children who fail to support or honor their parents. Today, more than half of the states have filial responsibility statutes on the booksFootnote 165—in the 1950s, almost all of them did.Footnote 166 American adoption of filial responsibility derives from the early seventeenth-century Elizabethan Poor Relief Act,Footnote 167 which established reciprocal responsibilities between parents, grandparents, and children of “every poor, blind, lame, and impotent person” to support one another.Footnote 168 As William Blackstone explained, children owed their parents “honor and reverence.”Footnote 169 Parents might undertake a series of actions to “secure” their children's care, such as explicit contracts or promises of inheritance.Footnote 170
As the federal government assumed more financial responsibility to care for older people through Social Security in the 1930s and for the health-care needs of low-income people and older people through Medicaid and Medicare in the 1960s, some states repealed their filial responsibility statutes and enforcement rates dropped, but most states retained their laws.Footnote 171 Contemporary American statutes vary between states, but, as other scholars have explained, they are often characterized by first, “language establishing grounds for financial liability (such as Virginia's grounds, the parent's ‘necessitous circumstances,’ or Pennsylvania's undefined ‘indigent’ status); second, a provision prioritizing liability among several children or other obligors (such as Virginia's language providing that obligated parties shall ‘jointly and severally share … duty’) [along with] a statement of any exceptions to liability (such as a child who was not cared for sufficiently by the parent while a minor);”Footnote 172 third, establishment of liability based on ability to pay (characteristic of slightly more than half of the statutes);Footnote 173 fourth, lists of who may initiate the suit, ranging from the parents themselves to creditors to a public entityFootnote 174 along with the means for enforcement;Footnote 175 and finally, efforts to reconcile the filial responsibility law with support provided by various welfare programs, such as that available through Medicaid.Footnote 176
Filial responsibility statutes are controversial legally, pragmatically, and morally.Footnote 177 They have, however, repeatedly survived constitutional challenges.Footnote 178 Pragmatically, at a time of increasing support and health care costs for older people, they can help reduce government expenditures and ensure payment of private creditors.Footnote 179 Many statutes have been rarely enforced, although a 2012 Pennsylvania case resulted in national attention to the laws.Footnote 180 The suits are typically not brought by parents, even though they are entitled to sue their children for support,Footnote 181 but by health-care providers.Footnote 182 For example, a 2014 bankruptcy case almost casually mentioned the proceedings of an assisted living facility to use Pennsylvania's filial responsibility law to collect on money owed by a decedent's mother.Footnote 183 From the perspective of the health-care provider and government, recouping costs for caregiving provided to a decedent can be difficult and time-consuming. The government's recent attempts to collect on tax overpayments more than ten years old have failed.Footnote 184
In terms of the intersection between family structure and elder care, the financial care realm may be where we see the full effect of the “gray divorce” trend. Researchers found that “[o]n average … older divorced Americans have only 20 percent as much wealth as older married couples. And the net wealth of those who've been widowed over age 50 is more than twice the wealth for what the researchers call the ‘gray divorced.’”Footnote 185 An increase in gray divorce may also increase the number of stepfamilies, and researchers have noted that the level of financial obligations felt by stepchildren to late-in-life parental remarriages remains low and depends heavily on the quality of the new relationship and the financial abilities of the grown children.Footnote 186 That said, for some respondents, financial care, when feasible, was the easiest way to honor a parent when the quality of the relationship was poor.Footnote 187
On their face, the statutes appear to reinforce observance of the honor commandment. On the other hand, critics note that they may undermine family relationships and exacerbate already-existing tensions, fostering children's resentment of their parents and of the state.Footnote 188 Moreover, by focusing on the provision of financial care, these statutes overlook the other, less easily quantifiable types of care children may provide for their parents. No respondents mentioned awareness of Louisiana's filial-responsibility laws or elder-abuse statutes, although they acted within the spirit of these laws. Overall, regardless of willingness, ability, proximity, past relationship, or current relationship, everyone felt that the need of a parent was worthy of response—for some that response was day-to-day care, for some money, for some simply being a long-distance form of moral support.
Supporting an Attitude of Honor
Elder abuse statutes prevent the dis-honoring of older family members, setting a floor of acceptable behavior.Footnote 189 Every state has enacted laws that are designed to prevent elder abuse, and elder abuse statutes apply to family and to non-family members.Footnote 190 One form of elder abuse law applies to reporting requirements: specific individuals must report specific forms of mistreatment. These reports are typically owed to the state's adult protective services unit. A second type of law imposes civil sanctions or punishment on those—not just family members—who mistreat older people.Footnote 191 Although these laws are critical and the rate of elder abuse is high, this was not an issue in our interviews. Indeed, quite the opposite was true: children had to protect themselves from the potentially abusive actions of their parents.Footnote 192 Historically and currently, abuse laws do provide a source for showing that secular law reinforces the honor commandment's protective intent for elder parents, but leaves a gap in protecting the caregiver as a vulnerable party. Each respondent forged a unique path based on personal interpretation of the commandment that served the parent but also respected the personal boundaries of the grown child. Nonetheless, even those who took the rights and responsibilities of this commandment personally and privately could have benefitted from better formal support from secular law. The next section turns to the different ways that secular law relates to the tenets of the honor commandment.
HONORABLE AND WORTHWHILE REFORMS
Elder care is a perpetual human need that is experienced as an obligation, burden, and joy by caregivers. Living the honor commandment, cleaving to older family members, requires support. For the biblical character of Ruth, this meant following biblical law, which allowed her to glean any remaining bits of a harvest and then, under the custom of levirate, to marry a landowner.Footnote 193 Today, changing understandings of the state's role in supporting the private family and responding to the demands of the elderly require even more spiritual and legal support for caretaking.Footnote 194 As a legal matter, we found that caregivers tend to provide care without any awareness that secular law expects them to do so, nor do they avail themselves of opportunities for legal support to facilitate their care. We also found a lack of planning by parents, leaving their children without guidance as they undertook difficult end-of-life decision-making.Footnote 195 The existing secular laws could do better to actually support caregiving, especially as the need for eldercare explodes in coming years. Such reforms must involve a comprehensive examination of the numerous ways that family members are involved in elder care and the existing patchwork of laws that protect their “investments,” ranging from health care privacy laws to intra-familial service contracts. This section focuses on several of the most prominent secular laws—the FMLA, advanced directives, and filial responsibility statutes—with the recognition that there are numerous other areas to address.Footnote 196
In terms of the FMLA, we offer three suggestions. The first recommendation echoes a reform that many others have proposed: family and medical leave should be paid so that taking time away from work to provide care does not affect income.Footnote 197 Such a benefit would have supported many of the grown children we interviewed.Footnote 198 Allowing up to twelve weeks of paid leave for the serious illness of a family member offers different kinds of benefits. First, home-based care has been shown to be more cost-effective than institutional care, both for recipients and taxpayers.Footnote 199 Second, it would provide concrete support to the 41.6 million caregivers, two-thirds of whom are women. Most family caregivers report that they have had to make some accommodations in their work schedule, such as by leaving early—or quitting—in response to their eldercare responsibilities.Footnote 200 Finally, paid leave might foster gender neutrality by encouraging and men and women to divide the work of caregiving more equitably, since neither would risk losing necessary income. We also support recent legislation that proposed a Social Security caregiver credit that would offset lost contributions during periods of unpaid caregiving.Footnote 201
As a second reform, even assuming the FMLA remains unpaid in the United States (as seems likely in this political climate),Footnote 202 the list of relationships eligible for FMLA leave is limited. In recognition of the importance of including caretaking, we recommend expanding the definition of eligible relationships to include relevant family care networks so that the law would cover not just parents and de facto parents, but also stepparents, ex-stepparents, and grandparents as objects of care. Just as the Labor Department recognizes people with no legal or biological ties to a child as potential parents entitled to take leave if they provide daily care,Footnote 203 so too should it recognize adults providing filial-type daily care to an older quasi-family member. In addition to expanding the list of kin, those eligible might even be expanded to include anyone legally serving as the medical power of attorney for an individual who is incapacitated. This expansion would allow informal care to be provided to neighbors, friends, and faith community members who are single or whose immediate family does not live in close proximity. Third, the list of conditions for eligibility under federal law does not recognize much of the caregiving that older people require or the needs of those providing the care.Footnote 204 Leave to attend medical and legal appointments, as well as bereavement leave, are potential additional expansions for covered leave.
Employers may well object to these expansions, arguing that additional leave would compromise their workforces. It is important to recognize the costs to businesses of offering leave. Yet other expansions of leave have faced similar objections, and subsequent experience has shown that paid leave has relatively negligible effects. Indeed, studies of how paid leave has affected the bottom line of employers show that the vast majority of businesses report relatively minimal impact.Footnote 205 Of course, some employers do experience a negative impact.Footnote 206 If the costs are substantial, then an alternative might be establishing some form of public insurance program that would spread the burden beyond the individual employer.Footnote 207
When it comes to health-care decision making, the designation of default surrogate decision makers needs to balance family dynamics with expediency—difficult in statutes that apply to so many different situations. A better solution involves more support for advance medical planning so that the individual indicates her preferences before she is incapacitated to ensure that she opts out of the default rules.Footnote 208 Few people, even those who are terminally ill, have completed advance medical directives.Footnote 209 Regardless of how they assume their responsibilities, whether as designated or default decision makers, family members need better information about their roles, as well as guidance on how to make medically appropriate decisions. Rather than forcing caregivers into this role at a time of stress in the midst of providing care, advance care planning could, more appropriately, draw from recommendations made by the Institute of Medicine for a life-cycle model of planning, in order to normalize the process and to avoid the emotional burden sometimes experienced by patients, families, and loved ones who have not adequately prepared for making end of life decisions.”Footnote 210 This model would allow for health-care professionals to remain informed of changes in a family structure that affect who will serve as next of kin as well as all those involved in joint or surrogate decision making.
Finally, the honor commandment as a social construct serves to shape the complicated and nuanced endeavor of elder care far better than filial responsibility laws, which are rarely invoked and would not encourage the long-term viability of the family unit. Indeed, this is a compelling testament to the way in which law may rely on ethical principles rather than use brute, coercive force. Indeed, and perhaps unsurprisingly, no one in our study mentioned filial responsibility laws, nor had anyone had faced a lawsuit as a result of those laws. On the other hand, their caregiving—which they recognized as their responsibility—added complexity to their already full schedules and limited budgets. Even respondents who had been abandoned or treated dishonorably as children generally chose to accept the financial and practical responsibility for caring for a mother or father, although they tried to establish strong boundaries to protect themselves.
We recommend reforming filial responsibility laws, at least those that allow parents to sue children. The few filial responsibility cases in recent years do not involve parents suing grown children to care for them,Footnote 211 but if such cases were to be brought, they would serve as a symbol of a severely dysfunctional relationship. Lawsuits occur when relationships break down, and they are likely to exacerbate tensions rather than produce the desired funding. In terms of our sample set, even after dramatic incidents of estrangement, respondents undertook some level of personal and financial responsibility for the aging parent without legal compulsion. While there are persuasive economic justifications for allowing private institutions and the state to sue a grown child for financial reimbursement, actual implementation and enforcement of this law would be quite onerous. In these cases, as in so many other areas where the law affects families, the law is a very blunt instrument that does not take into account fine-tuned family dynamics and needs.
The impulse to enforce filial responsibility laws reflects that caregiving costs, especially at the end of life, are expensive.Footnote 212 But other means can effect the same goals. Reducing costs system-wide as well as supporting an increase in informal care would entail a greater level of civil education as well as expanding current programs that are working well.Footnote 213 Congress has considered legislation seeking to compensate caregivers through recognizing their time for purposes of Social Security payment.Footnote 214 Other countries already do so.Footnote 215 The level of Social Security benefits is based on the recipient's highest earning years; those years may include part-time work or unemployment due to caregiving. Recognizing the costs of caregiving might result in employment credit for a year in which the employee was not in the workforce full time.Footnote 216 As a way to compensate for gaps in privately provided care, we also support legislative efforts to begin a national “Caregiver Corps,” that would provide training and potentially school-loan debt relief for caregiving volunteers in local communities. These efforts would allow all citizens to honor local elders in a safe and organized fashion.Footnote 217
Our sample set also revealed a significant number of grown children who cared for formerly or currently absent or disrespectful parents. Greater protections for caregiver abuse need to be in place before expanded enforcement of filial responsibility laws occurs. One prominent line of feminist theory seeks to honor and protect the vulnerable.Footnote 218 Indeed, while this paper has focused mostly on eldercare laws that protect vulnerable aging parents, family caregivers themselves are also a vulnerable class who are making financial and physical sacrifices, making stressful decisions, and, as already noted, are often invisible to public society.Footnote 219 Grown children who have spent a lifetime extricating themselves from patterns of abuse from a parent may be pulled back in, as several of our respondents were, in the name of mercy and duty. While noble, it carries the potential to be destructive. Society must honor a family caregiver's instinct to mercy, while also guarding them from further injury.Footnote 220 Even in its biblical formation, the honor commandment is as much about social cohesion as it is about personal relationships. Because society benefits as well, then there is also an argument that society has a reciprocal duty to the caregiver.Footnote 221 This may mean developing new programs within both secular and religious communities that support caregivers and protect their mental health.Footnote 222
CONCLUSION
Overall, the honor commandment not only continues to motivate the providing of elder care, but it also reflects the full complexity of practical, emotional, and spiritual care of the family. As a society, we are better off if children are motivated to take care of their parents by something like the honor commandment rather than by coercive or regulatory measures. Providing support for caregiving—and ensuring knowledge of the support that is available—offers a path forward that respects family integrity and individual wishes. Adequate support for caregiving would have a particularly significant effect for women, ensuring their ability to provide care while also making available the fullness of their services as equally respected worker-citizens. Strengthening secular laws to help support caregiving can profoundly affect how people live the honor commandment, improving the lives of those who receive and give family care.
Acknowledgements
Our thanks to Silas Allard, M. Christian Green, Marie Failinger, and Bob Tuttle for comments on earlier drafts, and to the organizers of the “Feminism, Law, and Religion Conference” at St. Thomas Law School, where an earlier version of this paper was presented. We also thank the Homeward Bound advisory group, David Blankenhorn, Mark Kantrow, Michael Karunas, Kevin Noble Maillard, Thomas Long, Alicia Saverese, Tracy Stephenson Shaffer, and Barbara Dafoe Whitehead, who read and commented on an earlier version of the paper as part of a consultation in March 2014. We thank Elizabeth Marquardt for her contributions to Homeward Bound and for her ongoing support.
