Band 8, Heft 2 - Intergenerational Justice; Guest Editors: Shelly Kreiczer-Levy and Pamela Laufer-Ukeles

The Article brings together anthropological and legal approaches to the concept of descent. Since Henry Maine, legal theorists have been interested in descent as a link between the generations that assembles the generations into a corporate body, a single collective personality. The Article proposes a view of intergenerational corporate continuity and defends an interpretation of the rights to family life – the rights to marriage and parenthood – as constitutional safeguards of the institution of descent. It argues that descent is the foundation of human dignity, and that the rights to family life should therefore be considered key constituents of human dignity. This notion of dignity is pre-modern but, as a number of authors have argued, our idea of dignity remains partly continuous with pre-modern notions. Our ideas about human dignity conflate in fact two diametrically opposed bases of dignity: the distinctly human capacity for intergenerational continuity and the contrary capacity to break free of the past. The rights to parenthood and marriage are rooted primarily in the notion of dignity-as-descent and not, as several authors have argued, in the inherent value of the intimacy that exists between family members. The Article comments briefly on the current round in the perennial debate on the foundation of kinship between the respective advocates of culture and biology.

Is it possible to justify the passing of property rights from one generation to the next, and the acquisition of citizenship rights, on the basis of inheritance? This paper raises two considerations which indicate that typical luck egalitarian arguments against the operation of any “hereditary principle” in the intergenerational succession of economic and political rights are not conclusive. Both considerations concern autonomy. The concept of inheritance can be seen to be justified when the social connectedness of individuals is appreciated – inheritance reflects the embeddedness of individuals in the lives and projects of others both in the past and in the future. So while there may be good liberal reasons to reject inheritance as a mode of property succession, for example that it might perpetuate or initiate unequal distributions, these do not begin to suggest that nothing can be said in its favor, morally speaking, if the autonomy of individuals is understood to be situated in particular social structures. A similar case can be made for the claim that rights to citizenship are best seen as reflecting a “duty to govern”; those most embedded in the life-ways of a community would appear to be best placed to shoulder this duty. Finally, the paper considers an argument from “familiarity,” which suggests that it is not wrong to favor to some extent individuals whose genetic and cultural characteristics reflect one’s own, and concludes that such a consideration can play a role in justifying to some extent the justification of a “hereditary principle.”

In this essay, I consider the tension between the drive toward the use of assisted reproductive technologies (ART) and the state’s failure to protect interests of children born of ART. I ask the question whether ART should be regulated for the sake of future children’s interests. Taking a narrow view of rights, this essay argues that despite the considerable obstacles posed by Derek Parfit’s non-identity problem and the ambiguity surrounding how to optimize and identify what is “best” for children under the “best interests” standard, there are still basic civil rights of children born of ART that must be ensured in ART regulation. Therefore, regulation of ART for the sake of children is justifiable and necessary but in a limited manner. To demonstrate how conflict can arise between the use of ART and the basic rights of children born of ART I first turn to the example of Israel where the use of ART can affect the resulting child’s personal status, which can affect a person’s ability to marry. This tension is particularly stark in Israel, where procreative support from the state is extreme, and relatively easy fixes could relieve much of the problem. But, the same tension plays out in other nations in which the use of ART leads to the creation of children whose basic needs are not sufficiently addressed. In particular, I discuss the lack of access to health information from gamete donors in the U.S. and the failure to provide citizenship and legal parenthood to children born of international surrogates in a number of other countries. I argue that while procreation is a valid goal it cannot come at the cost of the social and basic civil rights of children. State policy and laws must ensure that children born of ART will be full citizens upon their birth. In sum, regulating ART can be justified for the sake of future children but I suggest that such regulation be drawn narrowly and only to ensure children’s basic civil rights.

Intergenerational justice does not require increased government regulation of reproductive technologies in the United States. Arguments tarring reproductive technologies as unnatural or immoral fail to withstand close scrutiny, and moreover ignore competing moral concerns like the liberty and equality of people to form families in different ways, as well as the interests of children born via assisted reproduction in having their families recognized just as coitally conceived children’s families are recognized. Embryo markets, in contrast, might present different challenges, requiring a separate analysis of their potential impact on intergenerational justice.

The official narrative of parental laws in Israel describes biological parenthood as the natural legal basis for determining parenthood, while recognizing legal adoption and surrogacy, in specific circumstances, as the sole official exception to the rule (and even then with some remnants of the biological connection). However, closer examination of parental laws in Israel, as well as in other countries, reveals that biological parenthood has in fact never served as the sole basis for recognizing parental status. Familial status, explicit and implicit agreements, and functional parenthood have all served, and continue to serve in many cases, albeit not always officially, as key parameters in determining the parental relationship and its consequences. The objection against the exclusivity of natural, biological parenthood has seemingly been strengthened in light of the challenge facing lawmakers through technological reproduction advances such as sperm donations, egg donations, and surrogacy. As a result of these recent developments, prominent scholars have begun to seek alternative definitions for the biological definition. One such approach, which was influenced by cultural feminism, attempts to determine the identity of the parent based on a concrete psychological relationship between the parent and the child. Another, more radical approach, views individual autonomy and the voluntary contract as the new basis for legal parenthood. In this essay, I argue that both alternatives – natural-biological and voluntary contract – do not sufficiently narrate the story behind determination of parenthood in Israeli law nor do they supply a sound normative basis for proper regulation of parental determination. In addition, I argue that while these approaches, which focus on the concrete psychological relationship between parent and child, add an important element to the discussion of parental determination, they are too focused on the private aspects of specific parent–child relationships and in doing so, these approaches overlook important elements of the proper legal regulation of parenthood. In light of this insufficiency, I suggest a social-institutional perspective of parenthood, one emphasizing that parenthood is not merely a matter of nature, but instead an artificial construct structured and designed by society. In addition, this approach rejects the current dissonance that exists between (1) the legal determination of parenthood; (2) the regulation of reproductive technologies, on the one hand, and the regulation of parenthood’s content in the sense of regulating parental status vs. state and vs. children, on the other hand. This approach maintains that the legal and social definition of parenthood will inevitably affect the content of parenthood. Therefore, I argue that on a normative level, various decisions regarding regulation of reproductive technologies and the determination of parenthood must take into account not only the involved parties but also the manner the decision can affect the conception “who is a parent” and more importantly, the ethos of parenthood that the law should encourage.

The claim that the public “owns” natural resources or public spaces is an event that has recurred in the past decade in Israeli social and environmental struggles and campaigns. Analyzing two high-profile issues – the Palmachim beach and the controversies over the offshore natural gas revenues and export – this paper argues that the rhetoric of public ownership reveals an emerging “commons sense,” a public consciousness of collective ownership of natural resources and public space, interwoven with a sense of responsibility for their long-term preservation and for future generations. The paper shows that the rhetoric of public ownership is best accounted for by The Commons discourse, which conceptualizes resistance to enclosure (privatization), reclaiming public rights and affinity with future generations. The paper surveys various conceptions of the commons discourse and its possible integration with human rights. So far, discussion of the Commons with relation to human rights emphasized the rights to subsistence and to a healthy environment, i.e. derivatives of the basic human rights for life and health, the standard list of environmental rights. However, in order to conform to the sentiments of Israeli “commoners,” commons rights should also affirm public ownership rights over natural and shared resources which, when understood as inherently diachronic and trans-generational, implicate also sustainability and long-term social and intergenerational justice. These rights may conflict with the Lockean conception of private property as curved off the commons. Therefore, conceptualizing such rights necessitates rethinking the idea of private property versus public and future-generations’ collective good.