Public Ethic of Care

Contemporary feminist care theory offers useful insights for sorting out the family-politics relationship and envisioning fruitful alternatives. Because many disparate approaches are included under the banner of care,¹²

Defining care as a practice through which human needs are articulated and (ideally) addressed, care theorists struggle against dominant conceptions of individualism and autonomy that characterize liberalism and carry great currency in the contemporary United States. Historically, the thrust of mainstream political theory has been either to cast women as naturally private persons or to ignore them altogether. Given this history and these associations, many theorists who reject gendering and privatizing care are understandably wary of focusing on care within the family. They express concerns that associating care with women will contribute to traditional gender stereotypes that, for example, portray women as particularly and naturally caring and, thus, designate care as a female responsibility or feminine attribute (Sevenhuijsen 1998, 22). Moreover, other commentators point out that by highlighting familial caring, one risks contributing to the idea that care is limited to those with whom we already have “a relationship of either intimacy or propinquity” (Robinson 1999, 30), or, in other words, that “everyone should cultivate one's own garden, and let others take care of themselves, too” (Tronto [1993] 1994, 171). Analyzing care within the “private” realm of the family can also make bringing out the political context of care seem “an impossible if not outright contradictory project” (White 2000, 1). Indeed, to the extent that political care is modeled on the “traditional” family, it can replicate the hierarchical tendencies of the traditional family and treat citizens like children (Dietz 1985; Tronto [1993] 1994, 169).

To discuss care in the context of families, however, as Eva Feder Kittay (1999) has astutely pointed out, is not to concede that all families can or should be self-sufficient or without public supports for their care work. In fact, what is so useful about a public ethic of care is the way it moves the activities of care from the margin to the center of our field of view and disrupts and complicates the status-quo boundaries between public and private care roles (Tronto [1993] 1994). Here, I identify the care values that productively guide thinking about families and apply these values to rethinking the relationships recognized as familial. Specifically, I identify social connectedness, difference, and equality as three central care values that promote human survival and flourishing.¹⁶

Social Connectedness as a Care Family Value

Care theory addresses social connectedness both descriptively and normatively. Descriptively, it acknowledges our social natures and needs. Part of what it means to be human is to have and make connections to others. Some facets of human existence make humans necessarily interdependent—for example, the vulnerability of infancy and childhood, the desire for human companionship, the tendency to strive for things and accomplishments beyond what we could make or achieve alone, the aging process, and periodic sickness. It is a rare individual who can and does remove herself or himself from society to lead the solitary and completely self-sufficient life of a hermit.¹⁷

Relationships premised on performing care activities or promising to undertake them in case of need are necessary for all infants and most others. Normatively, an important objective of care theory is to facilitate social connectedness through just and meaningful care relationships that can function well for all the parties involved. We cannot just try to perform care—it must be done effectively and responsively in order for needs to be met, justice fulfilled, and human dignity respected. These values are congruent with the stated general ethical commitments of liberal democracies and major religions around the world, but a feminist care approach highlights a public way to address and implement such commitments systematically.¹⁹

Difference as a Care Family Value

A care perspective is well situated to recognize the distinctive contributions and burdens of women, people of color, the poor, religious minorities, and other groups that have been socially marginalized, without allowing those who do not fall into these categories to cast it as the issue of “others.” Care requires attention to the context and particularities of diverse people and situations (Tronto [1993] 1994, 136–37). Part of care theory's insistence on “attentiveness” and “responsiveness”—that is, recognizing a need for care and paying attention to how the care-receiver responds to various care initiatives—is its stress on the necessity of recognizing and responding to differences. Joan Tronto (1998) suggests, for example, that we should ask: “How are needs understood to define and to shape the nature of the caring process?” and “What construction of ‘otherness’ … contributes to perceptions of caring?”

By acknowledging different needs and considering their bases, sometimes one performs care with the aim to eliminate differences and other times to respond to and respect them.²⁰

Equality as a Care Family Value

Care theory makes equality an explicit political goal. It recasts people (not just women) as fundamentally connected and interdependent beings who have needs and are morally engaged. As Kittay argues, we start by recognizing that “both receiving and giving care are … essential goods, as fundamental and irreducible as political liberty and economic well-being” (Kittay 1999, 182). Acceptance of this realization requires that we both give care and support caregivers in ways that do not make them “unable to be equals in a society of equals” (1999, 182). Framing the issues from this care perspective pushes us to examine the inequalities that permeate caregiving and to work to change the extent to which care is poorly supported, unpaid, ill paid, and disproportionately the duty of women, people of color, and the poor (see, in comparison, Nussbaum 2000). Equality becomes a political goal rather than an assumed fiction. Equality in this sense is not to be equated with sameness. Rather, it is to assure, where physically possible, an adequate minimum level of functioning for all citizens. It creates a certain “floor” beneath which it is morally objectionable and physically ruinous to allow people to fall.²¹

Care and Human Flourishing

By valuing social connectedness, difference, and equality, care theory is particularly well suited to deal with the complex issues surrounding the practices of care in the family and in the larger political community. Care is central to human subsistence and flourishing. It champions a vision of some of the constituents of a good life and a good society.²²

Feminist Groundwork on Defining Family

As mentioned earlier, a number of feminist theorists argue in favor of defining the family more expansively. Martha Albertson Fineman (2004), for example, does so as she deftly lays bare the “myth of autonomy” that keeps many people from seeing the necessity of a more robust and equitable social support system in the United States. To remedy the mismatch between policy and reality, she argues in favor of “a new family core connection—that of the caretaker-dependent” (Fineman 2004, 123). Fineman notes that there are different ways to recognize more fluid conceptions of family. She focuses on two in particular, arguing:

Commenting positively on the American Law Institute's proposals for treating domestic partnerships like marriages when they dissolve, she stresses:

Fineman's support for a contractual approach is based on her understandable exasperation with how marriage as an institution has been used by the courts and law enforcement officials to provide a screen of privacy that obscures abuses that can occur within marriage—abuses such as domestic violence and rape, for example—that are viewed as intolerable outside of marriage (2004, 135).

Fineman's approach is interesting, in part, because it recommends expanding the use of legal contracts (a move often associated with market ideology and radical individualism) to better recognize the families that people actually create and live in, while firmly criticizing the ideology of the market and individual autonomy that forms an ever-increasing part of “the unwritten ‘social contract’ that guides and gauges the relationship among individuals, societal institutions, and the state” (Fineman 2004, xiv–xv). Thus, she is very realistic about, and critical of, the background conditions of inequality in which people form contracts and are, thus, put in unequal bargaining positions. To deal with these issues, she emphasizes that if we were to abolish marriage as a preferred legal status and encourage individual contracts, protections such as default and equity rules would remain in place (and would need to adjust) in order to safeguard the weaker party in contracts and those without any contract.

Fineman's critique of the status quo and of the way dependency work is privatized and pinned onto familial structures resonates with the approach of a public ethic of care. By applying a care approach, I explicitly identify and detail a fruitful theoretical framework that I find implied in much of her critique. Further, by tackling the issue of biological connection and children, I will address an area where a contractual approach to family relationships, as Fineman herself admits, would not work for relationships between parents and children (Fineman 2004, 139). Children, obviously, have serious limitations on their ability to give consent and cannot justly be subsumed into a contractual approach that focuses on voluntaristic relationships formed between consenting adults.

Like Fineman, Iris Marion Young (1997, Chapter 6) criticizes the skewed ideas about autonomy that influence much of our public policy. Young (1997, Chapter 5) also advocates a definition of family that allows for diversity. Expanding the possibilities for different kinds of families, rather than encouraging assimilation into one family type, is a logical extension of her call to respect a heterogeneous public (Young 1990). Young (1997, 106) defines a family “as people who live together and/or share resources necessary to the means for life and comfort; who are committed to caring for one another's physical and emotional needs to the best of their ability.” She also incorporates aspects of subjectivity and meaning by adding that people are family “who conceive of themselves in a relatively long-term, if not permanent relationship; and who recognize themselves as a family.”

Young, then, with her emphasis on the caring that occurs within families, recognizes the importance of what Fineman calls the “caretaker-dependent” unit and Karen Struening refers to as the “small mutual aid societies” (Fineman 2004; Struening 1999). But none of these thinkers situates her proposals about rethinking the definition of family within a public ethic of care, and none, to my knowledge, explicitly and adequately addresses the role of biology. Only Kittay (2001) raises her claim for expanding our notion of family within the context of discussing a feminist public ethic of care; however, instead of developing a specific working definition of family, she focuses on criticizing existing policy, which, as she points out, “arbitrarily discriminates against nontraditional family forms” and “fails to take into consideration the many other forms of affiliation in which persons care for one another” (Kittay 2001, 539). As I will show, I support a hybrid family definition, one that emphasizes function but puts limits on how and under what circumstances people with certain biological connections can relinquish their care responsibilities or have them removed—in other words, one more open than the FMLA and U.S. Census-like definitions, but more circumscribed than Fineman's and Young's.

Applying a Care Lens to Families

Contemporary care theory offers useful insights for sorting out the relationships that a decent political community should recognize as family. Connections among family members are forged largely by what families do (and how they do it). Families are one of the primary sites where care is performed. Although families, traditionally defined, perform much of the unpaid care work in U.S. society, many other types of relationships (as noted earlier) are also involved in intimate caregiving relationships. The task is to craft a definition of family that captures what it is that allows many of the “chosen families,” “fictive kin,” and other arrangements to warrant the classification of “family,” along with the public support that this classification secures. As I define them, families are composed of a) those who have an intimate relationship in which they care for or are committed to caring for each other to the best of their abilities, and/or b) biological parents and children whose parental rights and responsibilities have not been waived or removed.²⁴

Some families can be identified by their relationships of “intimacy,” in the sense of closeness. Family members care for, take care of, and give care to one another without being motivated by material gain or profit.²⁵

Still, it is necessary to consider the role that sexual relationships and/or biological ties may play in family formation. A couple engaging in a sexual relationship may develop the type of closeness and strong ties that characterize the intimacy discussed here. If they do, then they would theoretically qualify as family; however, if a sexual relationship does not lead a couple to develop the extremely strong ties, affection, and understanding of the substantive sort that characterizes being close, then the sexual partners do not have the feelings or experiences that are usually necessary to make people obligate themselves to each other the way family members do. Since they do not exhibit a level of emotional closeness, legally declared commitment, or significant sharing of resources—that is, since they have neither taken on nor committed themselves to the responsibilities of care—they are legitimately excluded as family. Rights and recognition should come with the willingness to undertake the responsibilities inherent in intimate relationships of care.

As for the biological component of families, children clearly cannot choose whether, to whom, or under what circumstances they are born. This fact, when combined with the issue of children's overwhelming physical and emotional dependence on adults, makes it clear that society has a strong and legitimate interest in ensuring that someone cares for children.²⁷

This stance on the biological component of family differentiates my definition from those of all the theorists mentioned earlier. By addressing the issue of biological relationships instead of merely focusing on the consensual relationships between (theoretically) free and equal adults, I tackle the type of cases for which many courts have demonstrated the most difficulty and reluctance in recognizing relationships in which people behave like families. In this sense, I tackle the relationship of biology to functionality—as mentioned earlier, arguably the issue that the courts treated as the salient difference why Alison D. could not get a legal right to visit the child she helped parent since birth with her lesbian partner.

A Closer Look at Biological Entanglements and Gender Asymmetries

Arguably the greatest challenge to including more self-identification and openness in the ways that public authorities recognize and facilitate certain relationships is to make sure that increasing adult choices about relationships does not lead to giving short shrift to the needs of vulnerable children—in other words, figuring out how to weigh the potentially conflicting claims of adults who cannot agree on the issue of who is empowered (and burdened) on the basis of biological and gestational ties to children.

Young argues (1997, 110–11), for example, that if we allow women to choose whether to have an abortion, we should allow unmarried men the choice of whether to accept paternal responsibilities. By contrast, I maintain that gender justice and facilitating responsibility for care require a more nuanced approach. Like Young's account, self-identification should be allowed to enlarge the concept of family to include more groups. Unlike in her account, self-identification should not be allowed to shrink those relationships recognized as familial. When a man and a woman of childbearing age engage in consensual sex, there is a risk of pregnancy, even when birth control is used. Thus, by initiating a sexual relationship, each person implicitly accepts the risk and makes him- or herself responsible for the outcome. If conception occurs, parenthood, adoption, and abortion are all legal options with specific procedures to follow and restrictions to observe. Within these parameters, if a woman bears a child and she, or the couple, decides to raise that child or place it up for adoption, then both biological parents are responsible for caring for the child or for proceeding to initiate a process by which the child can be placed with people who will care for him or her. The fact that only a woman can carry and bear children, and the direct and unique impact on a pregnant woman's body, give her a legitimate, ultimate say in whether to carry a fetus to term.²⁸

On the other hand, what if a woman decides to carry a child to term and place it up for adoption against the will of the child's genetic father? Should she be allowed to trump the father's desire to parent the child? Mary Shanley (2001) counts gestation as care work and argues that in unmarried couples, when the genetic father fails to take concrete steps to signal his willingness to become a caregiver before the child is born, the birth mother should have the right to have her wishes weighed more heavily than his—including the right to a judicial hearing that would consider her reasons for wanting to place a child up for adoption over the genetic father's wishes. If a person can be demonstrated as unfit to be a parent, of course a court should restrict or rescind his or her parental rights; however, a man's failure to “demonstrate commitment” before a child is born is not a compelling reason to deny him parental rights. Although Shanley's account attempts to strike a better balance between allowing one biological parent or the other to have exclusive control over the decision to place a child up for adoption, I believe it places undue emphasis on the role of biology after childbirth, potentially giving women inordinate authority (and responsibility) as parents. If biology is not destiny for women, neither should it be for men.

Denying paternal rights to a father who has not demonstrated interest in, or responsibility for, his child before the child's birth treats men in a way we do not and should not treat women. Many pregnant women are ambivalent about having a child. If they decide not to terminate their pregnancy, however, most will decide to parent the child. A minority will relinquish the infant for adoption. Even those pregnant women who plan to give up a child for adoption are allowed to change their minds after giving birth: Controversial assisted reproductive technology contracts aside, no adoption contract can prevent a woman from changing her mind after she has given birth and before the waiting period specified in the contract has expired. Shanley's proposal would not allow men the same chance to change their minds and become attached to their child upon birth. Men, who cannot experience pregnancy and cannot be sure of their genetic link to a child the same way a pregnant woman can, have even more factors pushing them toward ambiguous feelings than women do. Thus, they, too, need a space of time in which to change their minds.

We might regret some men's lack of responsibility and encourage them to take more responsibility for their unborn children in ways that would better prepare them for fatherhood and hopefully lessen the burden borne by pregnant women (to the extent possible). Since the interest of a newborn in having a permanent home and caregivers is immediate and pronounced, fathers should have a brief but real “window of time” during which they are permitted to embrace their fatherly responsibilities and thus invoke their fatherly rights to visitation and/or custody. If the father is capable, both he and the child stand to gain from cultivating this connection. Indeed, in a society that has equated active parenting with mothering, it is critical to develop more opportunities (and responsibilities) for fathers to be caregivers. However, because a genetic father does not embrace his fatherly responsibilities once the window of opportunity has passed and an infant is placed for adoption, I agree with Shanley (2001, 97) that the new family—in recognition of its “assumption of responsibility” and “provision of care”—either should be created or, if it has already been formed, should not be disrupted.

Families and Social Connectedness

In an era when social isolation is frequently bemoaned, policies that facilitate and sustain relationships of care are critical. As briefly outlined earlier, current U.S. public policies tend to focus on the narrowly defined legal and biological configurations of relationships when determining who qualifies as a family and who will, thus, be entitled to the benefits that facilitate care. In the case of the FMLA, for example, the right to take leave from work turns on whether one is a spouse, parent, or child of someone with a pronounced need for assistance. If so, a full-time worker in a qualifying business can theoretically take unpaid leave through FMLA. Although passage of the FMLA represented a major advance by helping more people perform their caregiving responsibilities better, it still focuses on enabling care in restricted biological and legal circumstances.²⁹

Families and Difference

Because more diverse intimate relationships of care are acknowledged and supported as valuable manifestations of social connectedness, difference is valued—not cast as something that should be ignored or eradicated. In this way, the care approach resonates with the work of thinkers, such as Young (1990 and 2000), who treat difference as a resource and something to be respected. Given the infinitely complex reasons and circumstances that influence people to form one type of family rather than another, valuing difference and taking it into account are important. There are real advantages to be gained from greater acceptance and respect for the diversity of relationships that people actually develop. Greater acceptance could, for example, help change social climates that cast many as members of “alternative families,” where alternative implies a deficiency (Nicholson 1997). Moreover, it would require changing welfare policies that punish some parents for trying to become meaningfully involved with their children in ways other than a traditional marriage—for example, policies that deny or reduce benefits to poor families on welfare if the father lives in the household or is otherwise involved with his child (Mincy and Pouncy 1999). By expanding the groups of people that we recognize as family, the benefits, rights, and responsibilities currently reserved for the family as narrowly defined could be extended to a larger circle of people. As Karen Struening (1999) argues, expanding our definition of family strengthens society by facilitating networks of care.

Families and Equality

Arguing that women, care, and the family are frequently undervalued and ill supported, political theorists tend to address this injustice in two main ways. In one approach, they emphasize revaluing the care work in the family that women have traditionally done. In the other approach, they concentrate on delegitimizing the feminization of care and the family. Care theory is particularly helpful because it rejects the false dichotomy between those who seek to raise the status of women by raising the status of care and those who want to raise the status of women by distributing care work more fairly between the sexes. By stressing care as part of the good life for all human beings and making a case for public support, care both values the work that women have traditionally done (and continue to do) more often than men and advocates distributing this work more equitably.

Care theory, furthermore, can fruitfully address more than gender inequality. As has been noted, sexual orientation, race, and ethnic identity can influence the formation of families. In valuing social connectedness and opening up the definition of family to incorporate a variety of intimate, caring relationships—including “chosen families,” “fictive kin,” and extended families—we move in the direction of greater equality for traditionally marginalized groups. Expanding those relationships that are recognized as familial does not necessitate recognition for every type of relationship imaginable. Following the care value of equality, one could argue, for example, that polygamous unions violate gender equality.

Some Preliminary Thoughts on Implementation

This article's focus has been on articulating how care theory can productively guide our thinking about defining families and thus provide a framework for bridging the divide between the relationships of care that people actually form and those that are recognized and supported in various official capacities. The resulting understanding of family—as a nexus of intimacy and care that carefully weighs biological connections—could hypothetically be implemented in various ways. One way would be to create domestic partnership registries that expand those who can get formal legal recognition of familial status. This approach, however, is often only discussed in terms of recognizing same-sex couples. Although this addition would be a step in the right direction, a care analysis of the relationships people actually form suggests that this approach would fall short because it would unfairly exclude people in intimate caregiving relationships by assuming that intimacy can only be defined sexually (or biologically). As implemented in certain jurisdictions, some domestic registry schemes even exclude cohabitating heterosexual partners who do not want to marry. This restriction ignores (or rejects) the possibility that heterosexual partners might refrain from marriage on the basis of their conscientious objection to what they regard as the residue of gender inequality that still influences contemporary ideas about marriage. Thus, adding domestic registries might not do enough to expand familial recognition.

A second approach might be to cultivate legal thought that (consistently) employs a functional legal approach in which individuals or groups could petition for recognition of their intimate caregiving relationships. But critics and proponents alike have pointed out some shortcomings of judicial functionalism. They include:

A public ethic of care provides a working definition of the family as a nexus of intimacy and care. By moving care practices and values to the center of our political and theoretical concerns, the definition outlined here could be further refined to provide more specific criteria useful for functionalist legal approaches. Still, how particular courts apply the criteria to specific relationships would remain an open question for a large segment of the population in relationships of care that still would not be automatically accorded formal legal recognition. Additionally, care theory, by valuing diversity and working to facilitate just and equitable social connectedness, could help purge functionalist approaches of any residue of historical discrimination against marginalized groups. Finally, the problem of minimizing or eliminating instances of people trying to manipulate the system to their advantage is a legitimate concern; however, this challenge is neither unique to family law and policy nor an insurmountable barrier. Care theory and legal functionalism, in other words, have a considerable area of overlap on the issue of implementation; however, the need to rectify functionalism's shortcomings calls for a review of other options.

A third approach to implementing a public ethic of care could be to combine the creation of public registries for a much broader array of relationships—taking into consideration the caveats about biology raised earlier in this article—with a functionalist approach in law to address those relationships that will unavoidably fall outside of the registration scheme.³²

One final word on implementation: My inclination is to argue against Fineman's suggestion (2004) to allow individual couples to be radically free to make their own contracts to establish caregiver-dependent relations, akin to expanding the use and scope of prenuptial agreements. Even with the legal remedies she mentions to protect weaker members of the relationship, I worry about the potential for forming contracts that would create dangerous expectations, would be exploitative in ways that individuals could not predict early in their relationships, and could only (possibly) be remedied through legal action. As Shanley (2004, 28–29) argues, the contractual approach is based on the idea “of quid pro quo, in which each party offers something and agrees on the terms of an exchange as a rational bargainer. But the marriage [or, I would add, the family] commitment is unpredictable and open-ended, and the obligations it gives rise to cannot be fully stated in advance.” A contractual approach seems too inherently individualistic. Like Minow (1998, 14), “I do not favor leaving the content of family obligations to the private choices of those individuals. I think people should be free to enter family relationships but not be free to rewrite the terms of those relationships.” An expanded registration scheme with a fairly uniform set of responsibilities and rights attached, along with a functional legal approach to catch unregistered relationships that behave like the relationships of intimacy and care that deserve recognition and support, seems to me the most productive way to think about implementing a new understanding of family.