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Legal and Ethical Commentary: The Dangers of Reading Duty Too Broadly

Published online by Cambridge University Press:  01 January 2021

Ellen Wright Clayton
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Extract

The term duty is used in philosophy and law to de scribe the obligation one person owes to another. Yet what these two disciplines mean by duty often differs. Perhaps even more important, a determination by the law that a duty exists has different social consequences than does a similar assessment by philosophy Moral or ethical obligations between individuals make living in society possible, but breach of these obligations usually results only in social opprobrium, personal guilt, or shame. A legal duty, by contrast, enables a person to use the power of the state to enforce claims against another, either by injunction to make the duty-ower fulfill his/her responsibilities or more commonly by award of damages in the event the duty-ower fails to meet these obligations. In some cases, society itself chooses to impose criminal penalties on those who fail to meet certain important obligations.

The use of the term duty in both disciplines creates the temptation to extend a definition formulated in one setting to the other discourse. Ronald Green does not bite this apple, but his efforts to draw on the law to support his moral arguments, while not clearly identifying the distinctions between legal and moral obligations, may make it easier for others to see moral and legal duties as the same. Yielding to the enticement to equate moral and legal duties can lead to a host of difficulties. My purpose here is to demonstrate why the duties and privileges proposed by Professor Green are not and should not be adopted and enforced by the law.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 25 , Issue 1 , Spring 1997 , pp. 19 - 21
Copyright
Copyright © American Society of Law, Medicine and Ethics 1997

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References

Green, R.M., “Parental Autonomy and the Obligation Not to Harm One's Child Genetically,” Journal of Law, Medicine & Ethics, 25 (1997): 5–15.CrossRefGoogle Scholar
Id. at 10.Google Scholar
It is not my purpose to critique Professor Green's ethical analysis, but I will point out two concerns I have with his formulation of the parents' duty. The first clause seems to imply that parents should use prenatal diagnosis and selective abortion if they are at risk of having a child with a serious disorder, a position with which very few commentators concur and which would be politically untenable, for good reason. The second clause, other implications of which I explore further below, suggests that the parents' obligations can be altered by the circumstances in which they live. For example, the parents would have greater freedom in their reproductive decision making if they lived in a community full of people with disabilities, a result that seems at best peculiar. At other places in his article, he defines the child's rights in terms of his/her birth cohort. Using the birth cohort as the basis for comparison limits the parents' ability to expand their freedom by deciding where to live, but that approach raises other problems.Google Scholar
See, for example, In re Sterilization of Moore, 221 S.E.2d 307 (N.C. 1976).Google Scholar
The child with a genetic disorder asserting a “wrongful life” claim, absent gene therapy, is not and never could be rid of the genetic disorder. A child born without the genetic disorder would be a different child.Google Scholar
See Zepeda v. Zepeda, 190 N.E.2d 849 (Ill. App. Ct. 1963) (rejecting a claim by a child who was born out of wedlock against his father who had induced his mother to have sexual intercourse with him by promising marriage).Google Scholar
Green, , supra note 1, at 13.Google Scholar
Clayton, E.W., “Removing the Shadow of the Law from the Debate About Genetic Testing of Children,” American Journal of Medical Genetics, 57 (1995): 630–34.CrossRefGoogle Scholar