INTRODUCTION: LIFE ON THE “DAUGHTER TRACK”—CARE, VIRTUE, AND NECESSITY
On Thanksgiving Day 2005, as families across America were likely gathering around the table for a holiday feast, the New York Times published an article by correspondent Jane Gross, titled “Forget the Career, My Parents Need Me at Home,” identifying a putative trend of career women leaving the workforce for the “daughter track” of care provision for aging parents.Footnote 2 The article began with the story of Los Angeles radio news anchor Mary Ellen Geist, who had left her career to return home to Detroit to care for her parents, “one lost to dementia, the other to sorrow.”Footnote 3 Gross described Geist as having left a life with a “six-figure salary and a suitcase always packed for the next adventure, whether a third-world coup, a weekend of wine-tasting, or a job in a bigger market” for the “dormered bedroom of her childhood” and an existence “without urban amenities like white balsamic vinegar” and with only her Mercedes C230 as a “last remnant of [her] other life.”
Instead of framing her decision as a “sacrifice” or a “burden,” the latter term often eschewed and disclaimed by parents and children alike in the current context of elder care in America, Geist frames her decision as one of choice. She maintains, “Nobody asked me to do this, and it wasn't about guilt. I lived a very selfish life. I'd gotten plenty of recognition. But all I did was work, and it was getting old. I knew I could make a difference here. And it's expanded my heart and given me a chance to reclaim something I'd lost.” Indeed, in what Gross describes as one of the “white lies” caregivers tell, Geist insists, “I didn't give anything up to be here.” As Gross argues, “Middle-aged women may see leaving a high-powered career as an opportunity, not a sacrifice, many experts say, which distinguishes the Mommy Track from the Daughter Track.”Footnote 4 The moral hallmark of this trend, Gross maintains, is that women like Geist are “embracing a filial role that few could have imagined in their futures and are doing so by choice.”
The emphasis on freedom, opportunity, and choice permeates much discussion of the “daughter track.” Yet alongside this language is another language—a distinctly moral language of virtue. The language of virtue is present not only in the accounts of the women whose lives Gross chronicles, but also in the letters to the editor that were submitted by Gross's readers. The next day's edition of the New York Times featured six letters to the editor responding to the “daughter track” article.Footnote 5 What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of elder care because no one else will.
The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with elder care. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently by Martha Albertson Fineman.Footnote 6 Another long-standing and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,”Footnote 7 the ethics-of-care framework, originally linked closely to women's experience of mothering and maternal care, has since been applied widely as a broader political, even global, ethics framework.Footnote 8
While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the care experience of daughters, as suggested by contrasts between the “mommy track” and the “daughter track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Elder-care needs, while in a certain sense universal and inevitable, since everyone ages and many have parents who live to old age or dependency, often strike out of the blue or build gradually and then hit like a tsunami when a parent's need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.Footnote 9 Motherhood involves the creation of a new relationship and history with an entirely new and vulnerable human being. Elder care entails provision of care to adults made newly vulnerable by age and infirmity in ways that may be frustrating at times for caregiver and recipient alike, especially if there is any history of ill feelings or abuse.
In some strands of ethics-of-care thinking, the bonds of motherhood give rise to an ethic in which women's caregiving capacities are biologized, naturalized, and essentialized in a way that is amplified by social and cultural norms and comes to be exploited by social and political institutions. But in the realm of elder care, there are fewer biological, natural, and essentializable precedents. Even the oft-heard argument that children are obligated to take care of their parents because their parents took care of them is being tested in new ways.Footnote 10 Just in terms of the physical demands that elder care can require, it is easier to take care of a seven-pound infant than a 170-pound adult—and infants do not have the personalities or the not always ideal histories with their caregivers that elders do. Child care and elder care, despite some important analogies, are not the same task. The practice of elder care is as old, but the current realities of elder care are new, being pushed by demographic shifts and medical advances that keep us living longer, but often sicker, in ways that are putting tremendous stress on existing social, political, and legal arrangements. With elder care today, there is an unprecedented novelty to many of the challenges presented—and women on the “daughter track” are on the front lines in addressing these challenges. In religious terms, daughters are exhorted to “honor their father and mother” and to be the “graceful pillars” referenced in the opening biblical epigram to this article—but the circumstances of honor are not always easy and the pillars may need much grace, indeed, to fulfill their supportive function.
In the analysis of the ethics of the “daughter track” that follows, the balance of “honor” and “grace” tracks less the “ethics of care” and more the particular tension between “virtue” and “necessity” that is well captured in feminist philosopher Lisa Tessman's concept of “burdened virtues.”Footnote 11 This article, therefore is about the ethics of care, but it is not specifically an “ethics of care” essay.Footnote 12 In this essay, analyzing the “daughter track” through the “burdened virtues” framework, I first articulate some of the ethical questions surrounding gender, sacrifice, and elder care on the daughter track, particularly concerning contexts of virtue and necessity. Second, I examine how Tessman's “burdened virtues” framework applies to the “daughter track” situation, particularly regarding virtues born of necessity. Third, I examine some wider and still-unresolved legal and social justice issues related to the elder care provided by daughters. Finally, I conclude with some reflections on the “daughter track” as an issue of law and religion and how law, in particular, might better support women in being not only “dutiful daughters,” but “graceful pillars,” in the care of their elders.
THE DAUGHTER-TRACK PROBLEM: THEN AND NOW
The reasons for my selection of the “burdened virtues” framework to analyze aspects of virtue and necessity in the ethics of the “daughter track” emanate directly from certain themes uncovered in the narratives of daughter-trackers and perspectives on daughters' care of elders in the wider society. These are evident in the six letters to the editor written by readers of Gross's article that were published in the New York Times—specifically two genres of response that can be seen in the letters and comments responding to Gross's “daughter track” article—and others that have been written since. These responses alternately praise the daughters who undertake elder care or testify to the difficulties of care provision on the daughter track—sometimes combining both responses at once.Footnote 14 These references to virtue and necessity on the “daughter track” have remained remarkably consistent in responses to the issue since Gross's original article.
Three of the letters responding to Gross's article were written by individuals who did not indicate any personal experience with elder care. They praised the “selfless actions” of daughter-trackers as an “encouraging and inspiring story” of “enduring family devotion.”Footnote 15 They pointed to this care as a “small good thing” that may produce a “sense of contentment” for children after the loss of their parents.Footnote 16 One described it as an “opportunity” and a “second chance at ‘having it all,’” for daughters, many of whom were childless and thus had “missed the caretaker part of life.”Footnote 17 The other three letters were written by daughter-trackers themselves. One notes that she had been “free to come and go without a thought to anyone's welfare” and that she “used to joke that no living thing depended on me,” but that “[a]ll that changed” when her parent became frail.Footnote 18 Another daughter-track letter was even more effusive in the face of monthly cross-country trips and daily calls to monitor her parents' care before ultimately moving in with them, describing it as “not only the right thing to do, but a wonderful way of reconnecting” and proclaiming “I loved every minute of it.”Footnote 19 Further reflecting the theme of elder care as a substitute for mothering, this same writer maintains, “I am grateful that I had the chance that many adult children do not. And somehow it gave me the satisfaction of ‘mothering’ that I lacked, not having my own children. I recommend it!”Footnote 20
But happy exclamations are conspicuously absent from the last letter in the batch, written by a daughter with a different, and far less positive, experience. This writer observed:
You wrote about financially secure people and seemed to imply that the “daughter track” offered an escape from high-paying careers that were no longer satisfying.
The more common story is that we walked away from five-figure jobs that offered health and pension plans. We often financially support parents, who have only their Social Security. We supplement gaps in Medicare from our own pockets. We consume our savings and drain our 401(k)'s.
There are no escapes to Starbucks. Afterward, we are almost back to square one.
We struggle to find a job. We are forty- and fifty-something women who now have spotty work records. There is the quest for overtime, despite age-related ailments.
The clock is ticking. There is the constant fear, as Mary Ellen Geist, who left her career to care for her parents, says, “Who will care for me?” Answer: No one.Footnote 21
This letter is striking both in its deviation from the more positive accounts and for its testimony to what can be significant burdens of the daughter track. Very often, it turns out, women who step up to provide elder care do so not only out of necessity but at great cost to themselves. There is a pain, a poignancy, and a social urgency in this daughter-tracker's letter and in the comment threads of countless news articles and online fora that should not go unnoticed in our ongoing discussions of the proper balance of justice and care, and work and family, in a social, political, and economic context in which many of the burdens of elder care continue to be borne by family—especially daughters.
These costs are not merely speculative, but rather quantifiable and substantial. As Gross reported in her now decade-old article, “Despite a growing number of men helping aging relatives, women account for 71 percent of those devoting 40 or more hours a week to the task. … Among those with the greatest burden of care, regardless of sex, 88 percent either take leaves of absence, quit, or retire.”Footnote 22 Even with more men stepping up to care, perhaps indicative of its escalating necessity, two-thirds of elder care is still provided by women.Footnote 23 Daughters who are caregivers sacrifice considerable sums of salary and other financial benefits over the course of their lifetimes.Footnote 24
In particular, women who are unmarried and childless, unless they are as financially secure as the single women chronicled in Gross's article, may have even fewer options for balancing work and caregiving—lacking the income, benefits, and other support that a spouse might provide and children to eventually provide, in turn, elder care for them in their own old age. Further, it must be said that in the case of both the “mommy track” and the “daughter track,” as with so many phenomena identified in New York Times “trend pieces,” there is a pronounced emphasis on the most affluent sectors of society that wholly ignores what these trends might bode for less affluent women who may be even more burdened by the vicissitudes and circumstances of brute necessity.Footnote 25 Leaving a well-paying job may be an option, but taking the slightest time away from a low-paying job may be a near impossibility.
In an era of rapidly flowing news feeds, a decade-old article may seem like ancient history. But the “daughter track” turns out to be a trend that has legs, and it has recently recrudesced in the news and policy media in a way that shows that little has changed, even as the demographics of the elderly and the need to care for them creep steadily upward and are poised to skyrocket with the ascendance of the baby boom generation. In a 2013 article, Paula Span, the editor of what until recently was a regular New York Times blog on elder-care issues called “The New Old Age,” noted that two-thirds of those caring for family elders continue to be women.Footnote 26 In 2014, there was a flurry of media attention upon the release of a new study revealing that daughters step up to provide elder care at more than twice the rate of sons.Footnote 27 The media coverage of this study raised many important questions about the justice and sustainability of this system of daughter provided care. In 2015, Paula Span raised the “daughter track” issue again, in an article on caregivers sacrificing their careers that read like an anniversary piece to the original Gross article.Footnote 28 A decade later, the problem clearly had not gone away. In early 2016, an article in the influential Atlantic magazine noted that “the troubles of women with aging parents are unseen and widely ignored.”Footnote 29
VIRTUE, NECESSITY, AND THE GENDER OF ELDER CARE
While I use Tessman's “burdened virtues” framework rather than an “ethics of care” approach to examine the daughter-track question, there is one excerpt from the ethics-of-care discourses in law that seems especially appropriate to mention as a sort of link between the “ethics of care” and “burdened virtues” discourses. The observation comes from feminist legal theorist, Robin West, who in her important book, Caring for Justice, observed of the gendered dynamic of motherhood:
A mother who, for reasons of either biology or training or both, will care for a child is differently situated vis-à-vis the brute force of necessity than a father who may or may not engage in caregiving work. If a newborn is to be breast-fed, only the mother can do it. An older child must be not only fed, but clothed, sheltered, bathed, stimulated, entertained, and educated, and, if, for whatever reason, the father will not perform these tasks, the mother will. The mother feels the imperative dimension of that must as directed at her in a way the father does not. Necessity—whether biological or cultural—becomes, for the mother, a moral imperative.Footnote 31
This gendered moral imperative—grounded in the essentialisms of biology and nature, and reinforced by society and culture—that has accompanied many accounts of motherhood, can easily be extended to daughters and the care of parents. In particular, West's description of the necessity that demands the caregiving work of mothers and daughters alike raises the moral and ethical question in the context of virtue ethics: Can virtue really arise from necessity, or does it require a certain amount of choice?
The identification of virtue with choice has a long pedigree in certain strands of Western moral philosophy. Aristotle describes virtue and vice as being concerned with responses of “choice” or “avoidance” by the agent, or acting person.Footnote 32 He maintains that “we feel anger and fear without choice, but the virtues are modes of choice and involve choice.”Footnote 33 His oft-cited definition of virtue begins with the words, “Virtue, then, is a state of character involved with choice.”Footnote 34 Choice should not be construed as antithetical to moral obligation. One can, after all, choose to be obliged or construe obligation as choice, as some daughter-trackers seemed to do in their responses to the New York Times article. But one must also take care, in framing virtue in terms of choice, to avoid positing so vast a gap between virtue and necessity that one discounts the possibility of virtuous action arising from conditions of necessity. Not for nothing is the phrase “making a virtue of necessity” part of our moral language. The sorts of felt obligation that come with elder care, despite their framing, even by daughter-trackers themselves, as the products of virtuous choice, often seem more evocative of necessity than an optional realm of freedom.Footnote 35
It seems highly significant, from a moral and ethical perspective, that many women on the “daughter track” frame their caregiving activities as a virtuous choice, rather than as a concession or capitulation to the brute necessities of an aging population in a society still bifurcated by gender roles without sufficient social supports for care. At the same time, these moral self-constructions of virtue also risk perpetuating a certain gendered perspective of altruism as placing special demands on daughters. As philosopher and former home health care worker Jennifer Parks put it, we may want to question a system in which the “very premise of home care is that ‘families' (read: women) will offer their free (or cheap) labor out of a sense of obligation.”Footnote 36 Indeed, as Parks, echoing both West and the reluctant daughter-tracker whose letter was excerpted above, argues “women's sense of responsibility to care for their family members results from the question of who else is going to do it” and that all too frequently the “inevitable answer is ‘no one.’”Footnote 37 Indeed, Parks argues, “Few family members ‘volunteer’ to care for ill and frail family members; rather, necessity, strong familial ties, and a sense of moral obligation dictate that care be offered.”Footnote 38 The result is that “caring for others may result in dangerous forms of self-abnegation or altruism.”Footnote 39
Elder care by daughters turns out, in fact, to be an area in which many theorists are critical of standard “ethics of care” frameworks for precisely these reasons. Emily K. Abel a scholar of women's studies and health care points out, confirming more recent studies of elder care: “When an older person with several surviving children becomes ill, relatives often designate a daughter or daughter-in-law, rather than a son or son-in-law, as the primary caregiver. The reigning ideology still holds that women are ‘natural’ caregivers.”Footnote 40 On this point, philosopher Jennifer Parks observes that the rise of the “ethic of care” in feminist circles has not generally served to challenge that ideology. Parks argues that while the ethics of care “results in a distinctly nontraditional way of conceiving moral reasoning,” it “has not prevented actual practices of caring from serving traditional patriarchy.” Indeed, she argues, “This is nowhere more evident than in the appeals to home care as a preferential care paradigm, where women's willingness as caring persons to provide free and/or cheap labor is taken for granted. … Instead of enhancing the proper caring nature of all relationships, this ethic functions by legitimizing as ‘natural’ the exploitation of women's domestic work.”Footnote 41
If we profess that virtue requires a certain amount of freedom and choice that is not circumscribed by naturalized, essentialized, and gendered construals of women's caregiving capacities, the practical and political question that emerges is, then, What should a just society do to support caregivers by expanding the range of freedom, choice, and capacities for caring? I take up these practical and political questions surrounding virtue, necessity, and the “daughter track” later in this essay. But before that, I turn to the concept of “burdened virtues,” according to Lisa Tessman's highly pertinent framework, and what light the “burdened virtues” framework might shed on our understanding of the ethics of the “daughter track.”
“BURDENED VIRTUES” ON THE “DAUGHTER TRACK”
Lisa Tessman's book, Burdened Virtues: A Virtue Ethics for Liberatory Struggles, was coincidentally published the same year as Jane Gross's New York Times “daughter track” article. Tessman's “burdened virtues” framework reflects the trend toward virtue ethics that has dominated both philosophical and theological ethics in recent decades—but with a feminist critical twist.Footnote 43 Whereas traditional virtue ethics tends to focus on character formation and the cultivation of habits and virtues, Tessman focuses on contexts of oppression and the sort of “moral trouble” that is produced by situations in which the “self under oppression [is] morally damaged, prevented from developing or exercising some of the virtues” or in which “oppression persists even for those who do manage to locate and embody moral virtues.”Footnote 44 More pointedly, Tessman argues for the existence of “burdened virtues, virtues that have the unusual feature of being disjoined from their bearer's own flourishing.”Footnote 45
Two caveats in adopting Tessman's “burdened virtues” framework should be stated at the outset. First, the idea of oppression may strike some as inapplicable to the daughter track phenomenon. After all, as we have seen, many of the daughters themselves describe their situations as involving high levels of freedom, choice, and opportunity. It may seem churlish or demeaning to describe their situations as oppressive—almost as if one is accusing them of some form of existential bad faith. But as we have also seen, there are enough daughter-trackers who have opened up about the challenges that they face to make the question worth raising. And in the current culture of discourses around elder care in the United States, many parents say they never want to be a burden to their children, even as children seek to reassure their parents that they are not a burden at all.Footnote 46 In the normative culture that prevails in the American elder-care system, such as it is, “burden” is a taboo term.
Second, Tessman has not, to my knowledge and research, specifically written on issues of aging or elder care. And against the topical connection that would prompt some to select the ethics of care as a framework for “daughter track” analysis, Tessman is fairly critical of care ethics. At one point, Tessman remarks that “some women's only basis for thinking of themselves as good or valuable is their capacity to nurture and care for others, and this makes these women particularly susceptible to developing the trait of being self-sacrificial, which is one aspect of servility.”Footnote 47 Tessman is, thus, critical of some feminist care ethics for “blatantly promoting what can be seen as self-sacrificial traits.”Footnote 48 Indeed, she argues, “When ethics is seen as limited to the realm of concern for others, women may be seen as occupying the moral high ground relative to men, but there is a cost: they are unable to pursue their own interests as long as their interests conflict with that of others.”Footnote 49 So, in a certain sense, Tessman is far from being an ethicist of care or a scholar of caregiving practices. At the same time, her analysis of the burdens that virtues associated with care can impose, as well as her overall ethical concern to identify a middle ground between oversensitivity and indifference to others' suffering,Footnote 50 and her more recent focus on “nonideal theory,”Footnote 51 strongly recommends her framework for the study of care and caregiving—especially elder care on the “daughter track,” which can require a great amount of care and attention to others' suffering in situations that are far from ideal.
In her critique of classic virtue ethics, Tessman critiques classic theorists, particularly Aristotle, for failing to theorize “how the bad luck that produces adverse conditions (for basically good people) could be systemic and unrelenting,” leading to “competing demands produced by great injustice force even the most virtuous agent to leave some ‘ought’ unfulfilled and so subsequently be regretful or sorrowful or ill at ease with her/himself.”Footnote 52 There are situations, Tessman argues, in which “maintaining character traits that are praiseworthy” may ultimately “forfeit their bearer's well-being because they are self-sacrificial or corrosive or crowd out other valuable traits.”Footnote 53 There can be damage to the virtuous agent “when adverse conditions make even the very best possibility a morally problematic one or when bad luck leads one to engage in morally problematic ways, or even to develop a morally problematic character.”Footnote 54 These are situations in which virtues of self-sacrifice and self-abnegation can become dangerous to the virtuous agent—even in cases of choice or assent in the face of bad luck or necessity.
Tessman's analysis also sheds light on the question of the relationship between virtue and necessity and the ways in which virtue, in situations of necessity, may be different from the usual concept. Indeed, she argues that “the contingency of the relationship between virtue and flourishing must be not just acknowledged … but emphasized.”Footnote 55 She extends this point further in observing: “Adverse conditions can also affect what will actually qualify as a virtue, and the traits that are assessed as virtues for facing great adversity will likely not be those that meanwhile (or thereby) are good for their bearer.”Footnote 56 The standard Aristotelian virtue ethic, in Tessman's view, does not adequately take this “burdened” quality of virtues into account.
A further word should be added here on the notion of resistance, which Tessman uses frequently in her construction of what is intended to be a liberatory virtue ethic. Like oppression, “resistance” and “liberation” are terms that may not seem to apply to elder care, since caregivers do not generally entirely “resist” or seek complete “liberation” from the responsibility of caring for their parents. But in some cases, they may not perceive themselves as having a real choice, especially in the United States, where the alternatives may be either expensive private care or public care after an obligatory spend-down into poverty. Elder care may be an experience that they would not choose to avoid, but they still find it necessary to steel themselves for the tasks and consequences that follow. They may even come to see themselves as resilient, shaped but also strengthened by these experiences, of caregiving, even in the worst situations of estrangement or dependency. A particular value that Tessman's ethic provides is to encourage the sort of resistance—in the form of caregivers acknowledging their own limits and seeking out forms of self-care—that can strengthen resilience, through setting boundaries, seeking periodic respite from caregiving responsibilities, and challenging the larger social, political, and economic forces that make caregiving more difficult.Footnote 57 Caregivers taking care of themselves can be a place of agency and resistance in seeking justice where they can and in the ways that are available to them.Footnote 58
Tessman sees her liberatory virtue ethic arising, not from an ideal state of affairs, but in a “field of moral dilemmas, where the enormity of unjust suffering in the world produces constantly conflicting, dire needs to which one must attend even as one is supposed to balance the focus on others with some direct self-care.”Footnote 59 These dilemmas often emerge from circumstances of necessity that cannot be avoided. They are also situations in which even after virtuous action, there can be what Tessman calls a “moral remainder” in which “the weight of regret and guilt at what one cannot do burdens the moral agent.”Footnote 60 They are situations, Tessman further argues, in which “being attuned to others' suffering is burdensome” and even “intrinsically painful,”Footnote 61 both at an emotional level and in terms of other harms incurred. Here again, the imperfection of the analogy between parenthood and elder care must be acknowledged. In the normal course of life, children grow up to lead flourishing lives of their own. Not so with elder care, where the inevitable end is death, sometimes after years of deterioration and suffering. That end may come only after the caregiver has foregone many other opportunities and life experiences in service of caregiving. For the “daughter track,” caregiver, elder care can be a situation in which “flourishing tends to be diminished or unattainable.”Footnote 62
In Tessman's analysis, the force and sheer unattainability of some of these obligations may usher in a host of other consequences. Daughter-trackers cannot ultimately forestall the death of their elders, nor can they always recoup their losses from self-sacrifice. The caregiver may experience what Tessman describes as agent-regret, a “regretting the self one is,” particularly the limits of one's actions and capabilities, and even the limits of one's ability to control the mix of emotional responses that can attend situations of stress or grief.Footnote 63 It can also lead to the “moral damage,” from the sense that one is not or cannot live up to one's moral obligations.Footnote 64 Terms like regret and damage can seem grim in connection with the necessities of elder care, in which caregivers may be urged to bear up, sometimes even to discern blessings, within these difficult situations. Tessman's ethic lifts up the possibility—and also the challenge—of a moral response to situations of necessity in insisting that “we can be moral agents responsible for some things over which we do not have control.”Footnote 65
The ultimate risk that Tessman's “burdened virtues” theory seeks to avoid is one in which the agent “who is inordinately burdened cannot flourish.”Footnote 66 Failure to flourish need not be the only or the definitive result of the sacrifices that may be involved in caregiving on the “daughter track.” Many caregivers do report the rewards of necessary and even burdensome care of elders who graciously receive and value that care, as well as enhanced esteem in the eyes of bystanders who witness that care. Others draw value from triumphing over necessity by fulfilling these obligations and living up to their own personal moral codes, as well as those of the surrounding community. Importantly, Tessman also acknowledges the “moral legitimacy of sometimes seeking joy in the very face of oppression.”Footnote 67 She affirms those who seek “relief from these burdens … by escaping to indifference and certainly not by taking pleasure in the suffering of others or even by insulating oneself against the pain by focusing on the pleasure of one's attentive response to others suffering, but rather by embracing the joys that assert themselves in spite of it all.”Footnote 68 As she puts it, “The moral troubles that I describe are not necessarily consuming. Something about life itself—something that is not captured by oppression and not captured by resistance either—asserts itself under even the worst of conditions.”Footnote 69 Thus, ultimately, in Tessman's analysis, there is the possibility of joy and something like hope—a hope tied to resilience, lying somewhere between necessity and virtue.
THE “DAUGHTER TRACK” DILEMMA TODAY: JUSTICE ISSUES AND POLICY SHORTFALLS
The “daughter track” dilemma is a perplexing one in many ways, not the least of which is because it has received such scant attention in the scholarly literature. Legal, philosophical, and even feminist theoretical scholars have barely addressed the topic of family caregivingFootnote 71 —much less the specific concerns of women on the daughter track. Medical and bioethics scholars still tend to focus on the concerns of institutional caregivers in the health care system, though there have been movements there to address family caregiving issues.Footnote 72 Feminist ethics-of-care theorists have left “daughter track” issues largely untouched, though important theoretical observations can be gleaned from the broader political and global care ethics frameworks that have grown out of the movement's maternalist origins.Footnote 73 Even theology and religion have neglected to address caregiving by daughters outside of the bare exhortation of the honor commandment and in the intricate filial ethics of the Confucian traditions of East Asia.Footnote 74 If anything, the under-theorization (really under-theologization) leaves the bare force of the honor commandment intact in ways that may neglect the concerns of today's dutiful daughters.
For now, the elder care system in the United States remains reliant mostly on private rather than public solutions, and the ideal of elder care for many continues to rely on the unremunerated and largely unrecognized labor of women, particularly daughters, in the home. For some, this home-based solution conjures up earlier times of stronger family and community ties, but in a context in which people generally did not live as long, or often as sickly, as they do today. Jennifer Parks, whose ideas on gender justice in caregiving were considered earlier in this essay, has been particularly critical of this view, arguing that “hearkening back to communal ways of caring for needy citizens is also hearkening back to certain gendered care expectations that, in a feminist age, are far more difficult to justify.”Footnote 75 From both a feminist perspective and a broader social justice perspective, the very location of care in the home presents a dilemma. On the one hand, Parks observes, “One of the grave problems with home care policy is the way our collective responsibility for the health of all our citizens is delegated to the private sphere of the family. By failing to take up our collective responsibility, we fail one another in tangible, serious ways. We allow individuals and families to be bankrupted, torn apart, and physically and emotionally traumatized by the burden of care.”Footnote 76 On the other hand, Parks points out, “Without families, home care simply cannot meet society's caretaking needs. The trope of the family as stable, loving, altruistic, and highly functional serves the practice of home care, for it is by drawing on such tropes that family members are recruited to serve the state.”Footnote 77 Ultimately, Parks argues, “A system that exploits women's caretaking at the cost of their lives is completely immoral.”Footnote 78
At this point, legal and political institutions in the United States are only beginning to grapple with elder care and the questions of justice raised, particularly for women on the “daughter track.”Footnote 79 In terms of legal pedagogy, evidence that the needs of family caregivers are being addressed remains in short supply. Family caregiving, if it is covered at all, is addressed not in the wider arena of family law, but in the more specialized area of elder law—and even so, there is often a presumption in the direction of greater use of institutionalized care in a way that is at odds with the prevailing sentiment in favor of home-based care. For example, the authors of one widely known summary of elder law begin with the observation,
[B]road demographic trends have meant that those members who have historically shouldered this burden are no longer doing so. Delayed childbearing has produced the “sandwich generation” phenomenon of caring for young children and old parents simultaneously, increased economic opportunity for women has diminished the ranks of potential caregivers lacking careers outside the home, and general economic trends have meant geographic dispersion of adult children and their siblings. The result of these trends is that more care of older persons is being “contracted out” to institutions or other third party “providers.”Footnote 80
This exodus from caregiving would likely come as a surprise to the 30 percent of adult children who are currently providing elder care to their family members, performing services that exceed in value the total spending on all Medicare recipients in a given year.Footnote 81 Such reflections in legal textbooks may indicate that lawyers are not currently receiving adequate training in the law of family caregiving.
The laws themselves are, moreover, not necessarily up to the task of supporting family caregivers. The Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave to deal with what may be chronic and unforeseeably increasing needs; yet the FMLA is beset by a number of significant limitations. Although framed in wonderfully gender-neutral language, delineating the benefits available to “sons or daughters,” it does not apply to all employers and in its neutrality does not take into account the gendered dimensions of the elder care burden.Footnote 82 Moreover, the FMLA is completely irrelevant for daughter-trackers who have had to curtail or opt out of paid employment in order to care for elders. The FMLA also does nothing to challenge the basic premise that elder care must be or is best provided by family—especially by daughters—in the home.Footnote 83 The reasons for this are complex and reflect an ongoing dilemma in American political life as to the relation between public and private, government and family, and gender and justice.
More recently there have been initiatives and programs to compensate family caregivers at the state level. Many states (49 of them, in fact) have what are known as “cash and counseling,” “consumer-directed care,” or Medicaid waiver programs that provide direct cash assistance to elders, who are then allowed to spend the funds in hiring friend or family caregivers to provide care and receive compensation for assistance, either in the elder's home or their own.Footnote 84 Other interesting proposals include expanded refundable tax credits,Footnote 85 direct compensation through estate claims,Footnote 86 and “caregiver agreements,”Footnote 87 the last of which, in expressing and formalizing expectations and duties for family-provided care, may offer caregivers the kind of protection that a formal agreement can provide while also quantifying and accounting for caregiving responsibilities in a way than can allow for both individual negotiation and wider public discussion of the realities, terms, and burdens of family care.Footnote 88 While the logistics and financing of family caregiving seem to be gaining traction in law and as more organizations have arisen to support and address the needs of family caregivers, other issues may already be on the horizon.Footnote 89 In particular, there is growing attention to the problem of caregiver abuse—that is, the abuse of adult children in caregiving roles by the elderly parents who receive their care.Footnote 90 On these sort of normative issues concerning values in and of the family and wider social and cultural norms, the law, for all of its capacity to shape our normative values, is rarely the leader—instead responding after the fact to provide solutions to problems that arise in these all too human relationships.Footnote 91 But these are the kinds of issues that the law will, no doubt, be called to address in the years to come as the need for elder care and family caregiving continue to grow.
FROM “DAUGHTER TRACK” TO “GRACEFUL PILLARS”: SUPPORT FOR CAREGIVERS IN LAW AND RELIGION
For daughter-trackers seeking normative guidance in the biblical text, there are not as many references to daughters in the Bible as one might expect—or perhaps hope. Ziettlow and Cahn have drawn on an especially rich narrative in the story of Naomi and her daughter-in-law Ruth.Footnote 93 However, the biblical passage that seems most relevant to the “daughter track” is the passage from Psalm 144—the epigraph beginning this essay—on daughters as “graceful pillars.” The phrase suffers from its use, particularly in conservative Christian circles, as a text for inculcating in young women notions of “purity,” as well as traditional caregiving virtues associated with wives and mothers—the very values theorists like Robin West, Lisa Tessman, and Jennifer Parks, and indeed many care ethicists have sought to question.
Grace in this passage is likened, in an aesthetic way, to traditional notions of youth and beauty. But as we have seen, later on in the life cycle, particularly at midlife and in the context of providing elder care to their parents, women, as daughters, are being called upon to be “graceful pillars” in a moral and ethical way that is far from merely ornate. In fact, these daughters are being called upon to provide care that is both virtuous and necessary, serving as the foundational structure for a system of elder care in which most other supports, particularly in the United States, are largely lacking. These daughters are being called to be not merely beautiful, but strong. But every structure must undergo a “stress test” from time to time—and that is what this article has sought to provide in raising questions of necessity along with virtue in assessing the ethics of the daughter track.
Notions of freedom, opportunity, choice, necessary virtue, and hopeful resilience have shaped the narratives that “daughter-trackers” have used to shore up the structure of caregiving that daughters continue dutifully to provide to their elders. But the question is whether such narratives are sufficient to shore up the “graceful pillars” of the “daughter track”—and thereby to relieve virtue of its burdens—absent wider social support. The contemporary context of elder care is an emerging and evolving one. It will clearly present major social, political, and economic challenges in coming decades. At this point, I would draw the following conclusion concerning necessary virtues, public and private solutions, and gender justice.
Necessary Virtues
First, we should not assume that virtue flows naturally or easily from necessity, even or perhaps especially in families. If it did, it probably might not even be virtue in the fullest sense. Families are as prone to conflict and brokenness as are any other human institutions, so rosy assumptions of familial harmony and mutual self-sacrifice should not prevail without question. Even though many daughter-trackers frame their decisions in terms of virtue and choice, we must raise larger social ethical questions about that framework. In some cases, the best care may be partially or entirely located outside of the family, for the benefit of elders, the family members, and the preservation of family relationships.
Private and Public Solutions
Second, the wider society, including and especially government, must not leave families alone in the provision of care. Virtue is often associated with individual action, but it arises in a social context. It is both possible and probable that more adequate public support by government, employers, community, and other institutions can be of assistance in creating an environment conducive to care and virtue, both in families and in the society as a whole. On the religion side, one can imagine religious congregations developing ministry programs to provide aid, respite, and support to daughters providing elder care.Footnote 94 On the legal side, piercing the veil of the private sphere of family care by coming up with better legal and political solutions for family caregivers would go a long way toward improving the situation of daughter-trackers.
Gender Justice
Finally, there must be attention to gender and justice in both legal and theological discussions of elder care and the dutiful daughters of the “daughter track.” On the law side, this may require some rethinking of the formal language of gender neutrality that pervades many legal and policy discussions of elder care. Certainly, there are sons who provide elder care—and one hopes there will be more of them as the demographic explosion of the elderly unfolds.Footnote 95 But the neutral formalities of the law should not obscure the reality that the burden of elder care is disproportionately borne by women, who are then likely to be disproportionately disadvantaged as a result. In these situations, the law should not allow the concern for formal equality to be a barrier to moral equity.
But law and religion should do even more, they should use their normative power to point toward sharing of the burdens of elder care by men and women, and by families and society.Footnote 96 As Ziettlow and Cahn note, the honor commandment has been interpreted by many, in its mention of the honor due to both fathers and mothers, as standing for gender equality.Footnote 97 In the same way, the resources of law and religion can be brought to bear in understanding and addressing the phenomenon of the “daughter track,” the kind of “burdened virtue” that elder care can demand in situations of necessity, and how law, religion, and society can help both daughters and sons to be “graceful pillars” ensuring the nurture and flourishing of their elders.
