Some (General) Thoughts About Generalization

I suppose we all tend to generalize (and yes, I recognize that this is itself a generalization.)   Generalizations make life simpler and they make organizing our ideas and our worlds simpler, too.  

The law employs generalizations, too, and for some of the same reasons.  The law says that people under 18 cannot vote.   That’s not because every single person under 21 will be an irresponsible voter.   We know that some 17 3/4 year olds would be more educated and responsible voters than some 25 year olds, but it is too hard to sort it all out and so we generalize. 

But generalizations may also be dangerous.   I think there are two dangers.  First, I think that sometimes generalizations encourage a certain kind of intellectual laziness.   There can be something comfortable about them so that the substitute for more careful rational analysis. 

More importantly, generalizations can lead us to support rules that will apply to everyone–everyone including those who do not fit within the generalization.     Maybe that isn’t always a terrible thing–so some mature 17 3/4 year olds don’t get to vote.   But I think it can be very problematic in family law. 

I’ve been thinking about this because I think generalizations have cropped up a lot on the blog.  Things like “all children need a mother and a father” or “all children need a relationship with the people who provided the egg and sperm from which they were created.”   (I pick these because I’ve seen them recently, but there are many other instances and I’m sure I’ve done it myself.) 

What worries me is that even if I agree with the particular generalization (and in these specific instances I do not) I think we have to acknowledge that there are, in fact, exception.   There are children who are perfectly happy, well-adjusted, however-else-we-measure-successful children of single-mothers.   Or children of two mothers.  Or, as it appears to me in my most recent, children of two fathers.    

I’m concerned that generalizations will end up hurting the exceptional children.   First, they invalidate the child’s experience.   Just as having all the picture books have pictures only of mothers with children undermines the ability of fathers to function, so telling children that their families are defective or lacking will take its toll.   This isn’t a small problem.   Literally millions of children live in situations that do not fit comfortably within the generalizations.

Second, guided by generalizations we may take or endorse actions which do real violence to the lives of children who do not fit the generalization.   Frankly, I’m frightened at the prospect that someone might conclude that Eli (the boy in the last post) should only have a legally protected relationship with at most one of the two men he thinks of as his parents, that one to be determined by genetic testing.   Even if the generalization were perfectly correct, he deserves to be treated as an individual.    The idea that we might ignore his particular needs because, generally speaking, other children won’t share them isn’t acceptable to me. 

I understand that to some people a family consisting of two men and a child (and perhaps one of the men’s mother’s) is incomprehensible or worse.   Yet it exists.   Perhaps my greatest worry about generalizations is that they will prevent us from seeing what actually exists.  

This problem lies at the heart of a lot of family law tangles.   We might assume or decree that certain things will be certain ways, but people persist in acting in ways that are inconsistent with our pronouncements.   Their actions create lived realities and then family law has to deal with them.  I suspect it is rarely better to deny the individual reality in favor of the generalization, but that sure does make it hard to establish laws.          

One closing note:   You can take most generalizations and offer pretty much the same statement as a policy prescription or an opinion: ” All children should have a mother and a father.”  If I read that as a statement of opinion, we could have a discussion starting from that.   What makes a generalization problematic (at least in my view) is that it seems to be a statement of fact.    “All children need a mother and a father.”

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10 responses to “Some (General) Thoughts About Generalization

  1. I’ve never suggested that a child should be taken away from a situation where s/he is being reasonably well cared for and no person is disputing custody, despite the irresponsible circumstances in which s/he was brought into existence via donor gametes. However, what I do object to is your assertion stated in Gay Dads Wed that ” This is what we have. This is what the law must recognize.”

    I see absolutely no reason why the law must recognize inherently harmful ways of creating children even if not all children appear harmed by the circumstances of their procreation. On the contrary, I believe the law should prevent such family circumstances coming about by outlawing the donation of gametes under any circumstances except to possibly first degree relatives where the offspring will still grow up with his/her first degree genetic relatives.

    • I see two separate questions. The first is what should the law allow/prohibit or encourage/discourage. Here I think it is clear we disagree and you’ve articulated the policy that you’d favor in your comment just above. We can (and have) discussed the merits of various views on this. The second question, stated generally, is what do you do when people do whatever it is we think they should not do. More specifically, what do we do when people do use donated gametes, etc. (Of course, this is legally permissible now.

      I meant to be addressing the second question when I said “This is what we have. This is what the law must recognize.” And I offer this as a more general view, too. People do all sorts of things I think they shouldn’t, or that someone thinks they shouldn’t. They even sometimes do things that are unlawful. But they do them. And the question is how do we respond down the line.

      There are many variations on this question in family law. Because of the nature of the relationships at issue, the passage of time creates its own reality. Consider babies switched at birth at the hospital. It’s easy to say this shouldn’t happen. But it does and, I’m afraid, it will. So when it does, and when five or ten or twenty years pass before we figure out that it happened, then what? (See https://julieshapiro.wordpress.com/2009/05/17/swisterstwisters-and-why-we-care/) I’d say that the law must recognize the reality rather than insist on conformity with the ideal.

      I understand your position about what the law should be. Apart from the fact that I disagree, I also think it is very unlikely that it will become the law in many places. And even where it becomes the law, there will be instances in which men donate sperm to women one way or another. For all of these reasons, I think the second question–what do we do when it happens–is pertinent.

  2. I don’t know why sale of sperm and eggs is legal in the first place, when the sale of all other body tissues is not. (I’ve been to plenty of blood drives- the only compensation I got was juice and cookies).

    Do you realize that we have therefore placed sale of gametes in preferred, privileged category? Outlawing it would not be infringing on reproductive rights, but rather bringing it in line with other laws on tissue collection.

    Sure, that still allows for voluntary gamete transfers, but there would be no industry left to speak of if the only thing donors got was juice and cookies.

    • Actually blood plasma is fairly routinely sold. I believe it is legal to do so. http://www.bloodmobile.com/plasma_sales.html As is human hair. On the other hand, organs (kidneys, livers, etc.) are not sold (at least in this country) and I think it is generally thought to be morally problematic to buy/sell organs. Which is not to say it does not happen.

      This doesn’t answer the question you raise, but it does place it in a broader context. Is selling sperm more like selling blood/plasma or more like selling a kidney? And perhaps it also requires us to ask why it is permissible to sell blood/plasma but not a kidney.

      These are good question, that go somewhat beyond the scope of what I’m willing to tackle right here in the comments. But I’ll note one thing. IF you assume that the sperm is what makes you a parent–that is if you take the genetic-based parenthood view, which I think you do, then selling sperm is akin to selling a child and it’s problematic. IF, on the other hand, you assume that genetics is not so very important in determining parenthood, then selling sperm is not at all like selling a child. It’s perhaps much more like selling blood/plasma. A person’s answer to the selling sperm question is likely determined by their view of the importance of the genetic link, which we’ve discussed a good deal on the blog. Which is to say I don’t think these are indepedent questions, but instead two facets of the same question.

  3. Julie, in your answer to Sandy you say: I’d say that the law must recognize the reality rather than insist on conformity with the ideal . I think that what you call reality is not very simple (ask the mothers!) and therefore the law has a problem.

    You also say: And even where it becomes the law, there will be instances in which men donate sperm to women one way or another I am sure there will, but the question is whether the law makes them accountable for doing so or not. I think it is fine that men “donate” sperm to women, as a matter of fact none of us would exist if this was not the case. But I think it is important for society to remind the “donors” to keep up the good intentions for another 18 years ( the old fashioned way of doing so is the universal institution of marriage)

    Nowadays you don’t need ceremonies to remind men about their “donation”. The UK National DNA database comprise 6% of the British population and could easily be used for that purpose, if it was politically decided to do so. According to a survey this is apparently the main reason why half the UK police force has refused to be registered. They could still be caught if one of their male second cousins has been registered. I am sure the British Government won’t use the data base for this purpose (untill they run out of money)

    • Let me take your second point first. I think you’re suggesting that the law serves an important function in terms of setting out what is expected, so that even if people defy it, the law is important. You’re quite right. Declaring donors to be legally responsible (or declaring them to be parents) is an important statement of principle and will doubtless effect behavior. I think you’re quite right to raise this here.

      Inevitably, though, there will be instances where people act in contravention of the law. Ordinarily, we punish lawbreakers in order to reinforce the effect of law. The problem here is that children will have been created and it’s pretty hard to justify punishing individual children in order to make an example of their parents/donors/whoever.

      This is simply a huge problem in this area of the law. We do it sometimes. Look at the two cases I most recently wrote about (https://julieshapiro.wordpress.com/2010/01/03/vermontvirginia-update-and-isnt-this-a-bit-like-brazil/) (These are the Vermont/Virginia custody fight and the Brazil case with David Goldman.) In these cases the custodial parents took the kids and did what they could to sever the relationship with the other parent. In Goldman’s case this went on for quite a while. If one thought ONLY of Sean (the child), one could argue that it was better for him to remain in Brazil with the family he had lived with for five years. I’m sure some experts would assert this is so. But we cannot, as a society, allow the law to be flouted in this way, and so Sean must be returned to his father, even if that’s difficult and even traumatic for him.

      I meant to suggest that even if we declare the law to be one way or another, we must still deal with instances where the law is not followed. And for the most part, I’m inclined to affirm a child’s reality. Not always, because I think the courts are right in the Vermont/Virginia case and the Brazil case. And this, by the way, means I’ve got to draw some pretty difficult lines.

      And then to your first point–reality is indeed complicated. For one thing, we don’t have a clear set of standards for who has acted like a parent. Parents act all sorts of different ways. This is a significant drawback of any “de facto parent” type test–you must measure the person against some standard and we don’t really have a standard. So again, I agree with you. But just because it isn’t simple, doesn’t mean it isn’t right to try.

  4. I stand corrected regarding plasma sales.

    Regarding organ donations, I confess that I don’t know why organs may not be sold. But whatever the law should be, it should surely apply to surrogacy and possibly egg donation. All require invasive procedures and the undertaking of some risk, up to and including death, on the part of the donor. (This assumes, of course, that the ban on sales exists to protect the donors… if there is another rationale than i guess it would not apply.)

    Sperm in my opinion is not really comparable to organ donation or to tissue donation, the reason being in that it doesn’t stay sperm.

  5. Lack of payment (as in the UK) doesn’t stop the pain of the donor-conceived.

  6. There is a great deal of difference between commerce in blood plasma and any other body part.

    Blood plasma contains no genetic material whatsoever. As you must surely remember from biology class red blood cells are the only cells in the body without a nucleus hence no DNA. White blood cells (10% of blood) do contain nuclei, however the white blood cells cannot be transfused without causing severe illness or death so they are spun off and just the suspension fluid ie plasma remains.

    So sale of blood is essentially sale of a generic non-genetic product, ie. a product without unique identifiable characteristics unlike an organ or gametes.

  7. kisarita, you say I don’t know why sale of sperm and eggs is legal in the first place, when the sale of all other body tissues is not

    This is exactly the same question as Canada asked ten years ago. Sales of human body parts have since long time back been forbidden in Canada, so the question was: why make an exception to gametes?. Many years of parliamentary hearings, including interviews with donor conceived adults, resulted in the decision that all parts of the human body should be exempted from the market and not to be regarded as mere commodities. The penalty for buying sperm is now five years imprisonment, for eggs ten years.

    The Canadian thinking is that this ban on trade of body parts should be extended to include trade in sexual services ( where the laws are very muddled at the moment). After all, selling sperm or eggs is a kind of prostitution, usually called “reproductive prostitution”.

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