Our thoughts and prayers are with the Gard family tonight, as they mourn the loss of their baby boy.  We sorrow alongside of them.

The Gard family’s grief compels us to ask a difficult question that lies at the heart of recent debates over healthcare in America.  Who should determine and provide healthcare needs for the most vulnerable in our society (the poor, the sick, children, the elderly)?

Responding to Charlie Gard’s publicized healthcare debacle, which included a court preventing the Gard family from seeking alternative medical solutions for their child,  Mr. Ian Kennedy recently argued that in cases concerning a child’s best interest, reason dictates that we abide by the following principles:

1. Recognize that children do not belong to their parents.
2. Acknowledge that parents do not have rights regarding their children, they only have duties. The principal duty of a parent is to act in their child’s best interest.
3. Any rights that parents have exist only to protect their children’s rights.
4. Parents cannot always be the ultimate arbiters of their children’s interest (i.e. rights). The higher standard which decides what is, or is not, in the child’s best interest is “a trustworthy and independent source of authority […] a court.”

Kennedy frames his argument as a choice between reason and passion. The parental plea for the right to obtain medical attention for their child is derogatively swept aside as an emotional appeal and nothing more.  Yet Kennedy ignores important other “dichotomies” which ought to guide our reasonable assessment of the question, “who should decide healthcare for the most vulnerable in our society?”

In exploring such dichotomies, I would like to briefly articulate a reasoned response to each of Mr. Kennedy’s propositions.

1. First, Kennedy makes an assumption that children do not belong to their parents on the premise that, since the 19^th century, society has assumed a role of caring for children. Even if we concede that Kennedy’s historical argument is correct, and conceding that children must “belong” to someone, did society have a right to take such a role from parents in the first place?  Notably, Kennedy never uses the word “family” in his article, nor does he argue from an understanding of the family as its own human social institution, endowed with a similar responsibility of seeking the common good of its members through various rights and duties between parents, children, siblings, etc.  The substitution of “parents” for “family” is telling, indicating that in Kennedy’s mind the key players in such a controversy are all individuals, amongst whom the Court must adjudicate conflicting interests.  Kennedy thus ignores the proper distinction between the family and government as two different, but vital, institutions that contribute to human prospering.  While the family and government have an appropriate relationship to each other, eradicating one in favor of the other, or arrogating all the duties and rights from one institution to give to another, results in tyranny.  Particularly when you reallocate the rights and duties from those who have the ability and opportunity to love an individual best (parents) to those who neither know nor have the capacity to love that individual (a judge).

2. Kennedy confirms this unspoken negation of the family in his second principle, which argues vaguely that either his assertion that (a) parents have only rights, not duties, regarding their children, or (b) the principal duty of parents is to act in their children’s best interest, “has been part of the fabric of our law and our society for a long time.” Or, at least since the 19^th century. Kennedy doesn’t go back far enough to consider one of the threads that shaped the liberal-democratic fabric of his nation in the 17^th century (a relatively short time before Kennedy’s arbitrary cut-off date).  John Locke argued profusely that there is a fundamental difference between parental and political power (see especially Two Treatises on Government).  According to Locke, children are born to an equality of natural freedom, but they are not born in a state of natural equality.  “Their parents have a sort of rule and jurisdiction over them when they come into the world,” a rightful authority that remains until age and reason free a child.  The law of nature (since children are born naturally weak and irrational) has given parents, not courts, rights to provide for their children’s well-being.  This principle was essential for Locke to defend, not necessarily because he valued the institution of the family, but because he valued the freedom for the individual that results from a limited government.  Only by protecting the rights and duties of the family could Locke distinguish between absolute, tyrannical government (such as that which the father and mother exercise over their children) and liberal, just government (such as that exercised by legislative, judicial, and executive authorities over citizens).

3. The unspoken question resulting from Kennedy’s third proposition, which we are all asking ourselves, is who decides what is a child’s best interest or rights? If we answer, “the parents,” then rights rationally correspond to duties. Even Kennedy admits (briefly) that parents have duties; if duties, then rights.  If we answer, “the court,” then we must assume that the court (or government it represents) has parental duties; otherwise, it has rights without responsibilities.  Kennedy’s argument ultimately supports this latter conclusion.  Kennedy first argues that parents have duties without rights, and next argues that parents can have rights that are dependent upon their children’s rights. Yet Kennedy’s next principle implicitly interchanges “interest” with “rights.”  Hence, parents can rightfully care for their children’s interests (such as an interest in living) so long as a governmental institution determines that the child has a right to that particular interest.  By determining what rights a child has, the government also determines what duties the parents have.  Kennedy thus ignores the proper (or any) relationship between duties and rights. Parents have duties without rights; governments have rights without duties.

Kennedy’s conclusion therefore follows from his silent reductions of two key dichotomies, that of the family vs. government, and that of rights vs. duties.  Yet the issue of healthcare concerns the whole person—not just the bodily parts of the person needing healed, but the spiritual parts of the person needing life-giving relationships, such as those found in parents.  Individuals prosper in close-knit communities composed of persons who truly love and are loved in return; who exercise both rights and duties towards each other.  A government is not capable of love; indeed, its aim is justice, not love.  It is certainly not capable of loving another individual enough to willingly sacrifice time or money, and to risk heartbreak or guilt, in order to save an individual’s life in a health crisis.  Therefore, the question of who provides an individual’s healthcare also includes questions of who is most invested in a person’s life.  If we democratically (or otherwise) cede that investment to the government, we must be willing to face the consequences. If we give government the duty to provide healthcare (including the costs, responsibility for management, etc.), then we must expect that the government will assume certain rights alongside those duties (such as prudentially deciding who lives, and why). In that sense, Kennedy is correct.  The problem doesn’t lie necessarily with Kennedy’s argument, but with his unwillingness to acknowledge that we have another rational, alternative answer to that most important question—the family.