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“GRACEFUL PILLARS”:

LAW, RELIGION, AND THE ETHICS OF THE “DAUGHTER TRACK”

M. Christian Green

May our sons flourish in their youth

like well-nurtured plants

May our daughters be like graceful pillars

carved to beautify a palace.

Psalm 144:121

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.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.”3 Gross described Geist as having left

a life with a “six-figure salary and a suitcase always packed for the next adventure,

1 Bible, New Living Translation (Carol Stream, IL: Tyndale House Publishers, 1996). 2 Jane Gross, “Forget the Career, My Parents Need Me at Home,” The New York Times November 24.

2005. The term “daughter track” predates Gross’s article by a decade and a half. See Marilyn Gardner,

“Derailed on the Daughter Track,” The Christian Science Monitor, June 20, 1989. The term has been

picked up over the last decade by other writers and bloggers, see, e.g. Jill, “The Daughter Track,”

Feministe.com (blog), November 24, 2005; Betsy Stark, “Giving Up the Fast Track for the Daughter

Track,” ABC News, December 16, 2005; Mary Lou Quinlan, “The Daughter Track: Balancing Career and

Caring for Your Parents,” More (July/August 2006); Jane Gross, “Where the Mommy Track Crosses the

Daughter Track,” The New York Times, October 28, 2008. The term also became the name of a website

community for “daughter track” caregivers at thedaughtertrack.com. See also www.daughterhood.com, yet

another website providing support for daughters caring for aging parents. 3 Both Gross and Geist have written of their own parental caregiving experiences. Gross’s memoir

describes caring for her mother in her final years and her mother’s ultimate choice to die by VSED

(voluntary stopping of eating and drinking) in A Bittersweet Season: Caring for Our Aging Parents—and

Ourselves (New York: Vintage, 2012).Geist has since written of caring for her father and mother in

Memories of the Heart: Caring for a Parent with Alzheimer’s (New York: Grand Central Publishing,

2009). Even a quick search of “daughters” and “caregiving” turns up many more memoirs by caregiving

daughters. The “daughter track” phenomenon clearly taps into a deep well of experiences shared by today’s

daughters.

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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 eldercare 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.” 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

4 It is notable that the “daughter track” article was published just two years after another widely discussed

article about a parallel trend of mostly affluent women “opting out” of the work force to become full-time

mothers on the so-called “Mommy Track.” See Lisa Belkin, “The Opt-Out Revolution,” New York Times,

October 26, 2003. The “opt-out revolution” also received no small amount of critique, particularly by legal

theorists and social scientists who identified broader economic forces at work in shaping this supposed

cultural trend. See e.g. Joan C. Williams, Jessica Manvell, and Stephanie Bornstein, “‘Opt Out’ or Pushed

Out?: How the Press Covers Work/Family Conflict: The Untold Story of Why Women Leave the

Workplace” (San Francisco, CA: The Center for WorkLife Law, University of California, Hastings College

of Law, 2006) Pamela Stone, Opting Out?:Why Women Really Quit Careers and Head Home (Berkeley,

CA: University of California Press, 2008).The upshot of many of these critiques is that the “choice” was

not entirely voluntary, but made, in part, out of necessity, given the dearth of public childcare options in the

U.S. and the costliness of private options, which make the decision to work less financially feasible, since

much income would likely have to be directed to paying for childcare.

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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 Times featured six letters to the editor

responding to the “daughter track” article.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 eldercare because no one else will.

The plight of women on the “daughter track” raises crucial ethical questions about

justice, care, and gender connection with eldercare. 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 about Martha Albertson Fineman.6 Another longstanding 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,” 7 the ethics of care framework, originally

5 “Caring for Parents at the End of Life” (letters to the editor) The New York Times, November 26, 2005. 6 See Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,”

20 Yale Journal of Law and Feminism 20(1) (2008):1-23. See also Martha Albertson Fineman, “The

Vulnerable Subject and the Responsive State,” Emory Law Journal 60 (2008): 251-275. For an important

critique of vulnerability theory in the elder law context, see Nina A. Kohn, “Vulnerability Theory and the

Role of Government,” Yale Journal of Law and Feminism 26(1) (2014): 1-27. 7 The “ethics of care” is generally attributed to the writings of developmental psychologist Carol Gilligan,

who sought to account for women’s “different voice” in moral matters. See Carol Gilligan, In a Different

Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press,

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linked closely to women’s experience of mothering and maternal care, has since been applied

widely as a broader political ethic, even global, ethics framework.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 daughter care experience, 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.

Eldercare needs, while in a certain sense universal and inevitable, since we all age and most

of us have parents who live into old age, 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.9 Motherhood involves the creation of a new relationship

and history with an entirely new and vulnerable human being. Eldercare entails provision of

1982). Gilligan has more recently reflected on the legacy of her ethics of care theory in Joining the

Resistance (Malden, MA: Policy, 2011). 8 For a just a sampling of the ethics of care literature spawned by Gilligan’s work, among the many

monograph and anthology treatments--excluding some titles in English and all non-English books, as well

as the vast academic journal literature in philosophy, law, political theory, and related fields, not to

mention the many dissertations and theses that have been written on the ethics of care--see Nel Noddings,

Caring: A Feminine Approach to Ethics & Moral Education (Berkeley, CA: University of California Press,

1984); Sara Ruddick, Maternal Thinking: Toward a Politics of Peace (1990); Joan C. Tronto, Moral

Boundaries: A Political Argument for an Ethic of Care (New York: Routledge, 1993); Virginia Held, ed.,

Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO: Westview Press, 1995); Eva Feder

Kittay, Love’s Labor: Essays on Women, Equality, and Dependency (New York: Routledge 1998); Eva

Feder Kittay, The Subject of Care: Feminist Perspective on Dependency (Lanham, MD: Rowman &

Littlefield, 2003); Virginia Held, The Ethics of Care: Personal, Political, and Global (New York: Oxford

University Press, 2007); Michael Slote, The Ethics of Care and Empathy (New York: Routledge, 2007). 9 The “tsunami” metaphor fits the eldercare context in more ways than one. See Amy Ziettlow and Naomi

Cahn, “The Silver Tsunami Meets the Honor Commandment,” Institute for Family Studies Blog, May 13,

2014, available at: http://family-studies.org/the-silver-tsunami-meets-the-honor-commandment.

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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 feeling 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 eldercare, 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.10

Just in terms of the physical demands that eldercare can require, it is easier to take care of a

seven-pound infant than a one hundred seventy-pound adult—and infants do not have the

personalities or the not always ideal histories with their caregivers that elders do. Childcare

and eldercare, despite some important analogies, are not the same task. The practice of

eldercare is as old, but the current realities of eldercare 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

eldercare 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

10 For a good discussion of intergenerational obligations and justice, see Mark W. Wicclair, “Caring for

Frail Elderly Parents: Past Parental Sacrifices and the Obligations of Adult Children,” Social Theory and

Practice (16(1) (1990): 163-189. Wicclair draws on the analysis provided by Norman O. Daniels in Am I

My Parents’ Keeper?: An Essay on Justice Between the Young and the Old (New York: Oxford University

Press, 1990).

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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.”11 This is, thus, a paper about the ethics of care, but it is not

specifically an “ethics of care” paper.12 In this essay, analyzing the “daughter track” through

the “burdened virtues” framework, I shall, first, articulate some of the ethical questions

surrounding gender, sacrifice, and eldercare on the daughter track, particularly concerning

contexts of virtue and necessity. Second, I will examine how Tessman’s “burdened virtues”

framework applies to the “daughter track” situation, particularly regarding virtues born of

necessity. Third, I examine some wider legal and social justice issues that remain unresolved

in eldercare provision by daughters. Finally, I conclude with some reflections on the

“daughter track” as a law and religion issue and how law, in particular, might better support

11 Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (New York: Oxford University

Press, 2005). 12 Indeed, it appears that while ethics of care scholars have analyzed women’s caregiving practices in the

family in great detail, there has been no analysis thus far of the distinctive challenges faced by daughters

caring for parents. This appears to a lacuna in the ethics of care field, suggesting that an ethics of care

analysis of the “daughter track” is past due and would be most welcome, though space does not allow for

its full elaboration here.

I should also note that even though my home field is religious ethics, there may be less of a

specifically religious or theological dimension—or at least an explicit one—to this paper than might be

expected. Virtue ethics is a theory that, while having its origins in philosophical ethics, has also been

widely embraced by theological and religious ethics, where it is arguably the dominant theory today.

Indeed, at the time of this writing, it had just been announced that Lisa Tessman would be delivering a

plenary address at the upcoming Society of Christian Ethics meeting in 2016—a testament to the attraction

of her theory in theological and religious ethics circles. To those who would like a more explicitly

theological discussion of “daughter track” issues, I would only say that an “Also a Daughter” companion

book to Bonnie Miller-McLemore’s excellent Also a Mother: Work and Family as Theological Dilemma

(Nashville, TN: Abingdon Press, 1994) is long overdue. Daughters do a lot of work—and there remains

much more scholarly work to be done about daughters!

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women in being not only “dutiful daughters,” but “graceful pillars,” in the care of their

elders.

The Daughter Track Problem: Then and Now

Behold, everyone who uses proverbs will use this proverb

about you, “Like mother, like daughter.”

Ezekiel 16:4413

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 daughter 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 eldercare or testify to the difficulties of care provision on the

daughter track—sometimes combining both responses at once.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 eldercare. They praised the “selfless actions” of

daughter-trackers as an “encouraging and inspiring story” of “enduring family devotion.”

They pointed to this care as a “small good thing” that may produce a “sense of contentment”

13 Bible, English Standard Version. 14 Another recent example is the nearly 400 comments to an article by a daughter-tracker published in the

Washington Post: See Becca Rothschild, “I desperately wanted kids. It didn’t happen. And I’m OK with

that: No one is more surprised than me,” The Washington Post, January 29, 2016.

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for daughters after the loss of their parents. 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.” 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. 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.” Further

reflecting the theme of eldercare 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!”15

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.

15 “Caring for Parents at the End of Life” (letters to the editor) The New York Times, November 26, 2005.

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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.16

This letter is striking both in its deviation from the more positive accounts and for its

testimony to what can turn out to be significant burdens of the daughter track. Very often, it

turns out, women who step up to provide eldercare 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 letter and in countless news article comment threads 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 burdens of

eldercare 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.”17 Even with more men stepping up to care,

perhaps indicative of its escalating necessity, two thirds of eldercare is still provided by

women.18 Daughters who are caregivers sacrifice considerable sums of salary and other

financial benefits over the course of their lifetimes.19 In particular, women who are

16 Debra Wiley, “Caring for Parents at the End of Life” (letter to the editor) The New York Times,

November 26, 2005. 17 Gross, “Forget the Career.” 18 Family Caregiving Alliance, “Women and Caregiving: Facts and Figures,” accessible online at:

https://caregiver.org/women-and-caregiving-facts-and-figures, 19 Gail Gibson Hunt, “Caregiving and the Workplace,” in Always on Call: When Illness Turns Family into

Caregivers, Carol Levine, ed. (Nashville, TN: Vanderbilt University Press, 2004), 129. A Google search of

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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

both the income, benefits, and other support that a spouse might provide and children to

eventually provide eldercare 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.20 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

“$659,139” and “caregiver” turns up numerous references to this figure, which was apparently generated

by a 1999 study by the Metropolitan Life Insurance Company by the National Alliance for Caregivers and

the National Center for Women and Aging at Brandeis University. See MetLife Mature Market Institute,

“The MetLife Juggling Act Study: Balancing Caregiving with the Work and the Costs Involved” (New

York: Metropolitan Life Insurance Company, November 1999), accessible online at:

http://www.caregiving.org/data/jugglingstudy.pdf.

The $659,139 figure appears to conflict with a more recent figure tied specifically to female

caregivers provided by the Family Caregiving Alliance, “Women and Caregiving: Facts and Figures,”

accessible online at: https://caregiver.org/women-and-caregiving-facts-and-figures, reporting a figure,

updated in February 2015, that is half the earlier estimate. (“In total, the cost impact of caregiving on the

individual female caregiver in terms of lost wages and Social Security benefits equals $324,044.”) In light

of the discrepancy between the earlier figure and the more recent figure, further research into the economic

cost of caregiving may be warranted. 20 Some recent treatments of caregiving in the U.S. have explored the issue across a range of racial and

ethnic groups and social classes. See Emilie M. Townes, Breaking the Fine Rain of Death: African

America Health Issues and a Womanist Ethic of Care, 2nd ed. (Eugene, OR: Wipf & Stock, 2006); Yvette

G. Flores et al., “Beyond Familism: Ethics of Care of Latina Caregivers of Elderly Parents with Dementia,”

Health Care Women International 30(12) (December 2009): 10-55-1072), also available online at:

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2955855. There is sometimes a stereotype afoot in

reference to social class in these discussions which implies that the less affluent do a better job at caring for

their elderly than more affluent families who can afford to “outsource” care by placing their elders in

retirement centers, but we should be cautious about converting necessity into virtue by families who lack

other options. Necessity may produce virtue, but it is not the same as freedom and choice, unless resources

are made more widely available to all. The poor should also not be further oppressed by being presumed or

forced to be more virtuous than the rest of us.

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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 eldercare

issues called “The New Old Age,” noted that two thirds of eldercare givers continue to be

women.21 In 2014, there was a flurry of media attention upon the release of a new study

revealing that daughters step up to provide eldercare at more than twice the rate of sons.22

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.23 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.”24

21 Paula Span, “Daughters Are (Still) the Caregivers,” The New York Times, September 18, 2013. The New

Old Age blog at the New York Times, accompanied from time to time by feature articles, was begun by Jane

Gross in 2008, pursuant, one suspects, to a large amount of correspondence she received to the daughter

track article and her other writings on aging and eldercare. Paula Span took over as editor of the feature in

2009. Both women have written of their own caregiving experiences, as well as the surrounding culture of

social policy and support. The Times discontinued the blog, but archived posts remain available at Paula

Span, “A New Direction,” The New York Times, January 9, 2015; http://newoldage.blogs.nytimes.com/ See

also Paula Span, When the Time Comes: Families with Aging Parents Share Their Struggles and Solutions

(New York: Grand Central Life & Style, 2009). 22 The study, titled “When Gender Trumps Everything: The Division of Parent Care Among Siblings,” was

presented by Princeton doctoral student in sociology Angelina Grigoryeva on August 19, 2014 at the

annual meeting of the American Sociological Association in San Francisco. For a sampling of the media

coverage of this study, see Frederick Kunkle, “Daughters provide twice as much care for aging parents than

sons do,” The Washington Post, August 19, 2014. See also Frederick Kunkle, “Daughters tend to aging

parents more than sons, but some are seeking change,” The Washington Post, December 5, 2014, for

accounts of both sons and daughters seeking to balance these responsibilities; Hoai Tran Bui, “Elderly

caregiving: Daughters, not sons, Step Up,” USA Today, August 19, 2014. 23 See also Paula Span, “Caregivers Must Sometimes Sacrifice Their Careers,” The New York Times,

December 4, 2015. 2015 also saw the publication of an article analogizing “helicopter daughters” to

“helicopter parents.” Mimi Swartz, “How I Became a Helicopter Daughter,” The New York Times,

September 9, 2015, which is more celebratory than critical of the “daughter track” and plays on an analogy

to an intense form of parenting that has itself been criticized.. 24 Liz O’Donnell, “The Crisis Facing America’s Working Daughters,” The Atlantic, February 9, 2016.

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Virtue, Necessity, and the Gender of Eldercare

Virtue, then, is a state of character involved with choice, lying

in a mean.

Aristotle, Nichomachean Ethics, Bk. II, ch. 6

While this paper uses 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.25

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?

25 Robin West, Caring for Justice (New York: New York University Press, 1997), 117-18. For an excellent

account of the decision to care authored by a law professor and parental caregiver, see Debra H. Kroll, “To

Care or Not to Care: The Ultimate Decision for Adult Caregivers in a Rapidly Aging Society,” Temple

Political and Civil Rights Law Review 21 (2011-2012): 403-442.

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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.26 He maintains that “we

feel anger and fear without choice, but the virtues are modes of choice and involve choice.”27

His oft-cited definition of virtue begins with the words, “Virtue, then, is a state of character

involved with choice.”28 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 eldercare, 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.29

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 still gender-

bifurcated society 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

26 Aristotle, Nichomachean Ethics, bk. 2, ch. 3. 27 Ibid., bk. 2, ch. 5. 28 Ibid., bk. 2, ch. 6. 29 Indeed, family law scholar Jessica Dixon Weaver identifies limited choice, with limited resources and

vulnerability, as a place where concerns about care of children and elders—and often their caregivers, as

well—converge. It is worth noting that in an important acknowledgement of the intergenerationality and

interdependency of family caregiving, Weaver has also studied the important role of grandmothers as

caregivers, particularly in African-American caregivers. See Jessica Dixon Weaver, “”Grandma in the

White House: Legal Support for Intergenerational Caregiving,” Seton Hall Law Review 43(1) (2013): 1-74,

esp. Part VI, A.

14

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 their free (or cheap) labor out of a sense of

obligation.”30 Indeed, as Parks, echoing both West and the reluctant daughter-tracker whose

letter was excerpted above argue that “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’.”31 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.”32 The result is that “caring for

others may result in dangerous forms of self-abnegation or altruism.”33

Eldercare 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.”34 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,

30 Jennifer Parks, No Place Like Home?: Feminist Ethics and Home Health Care (Bloomington: Indiana

University Press, 2003), 3. 31 Ibid., 52 (emphasis added). 32 Ibid., 70 (emphasis added). 33 Ibid., 57. 34 Abel, Emily K. “Adult Daughters and Care for the Elderly,” in The Other Within Us: Feminist

Explorations of Women and Aging, Marilyn Pearsall, ed. (Boulder, CA: Westview Press, 1997) (quoted in

Parks, No Place Like Home?, 54)

15

“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.”35

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: What should a just society do

to support caregivers by expanding the range of freedom, choice, and capacities for caring?

I shall take up these practical and political questions surrounding virtue, necessity, and the

“daughter track” 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”

Then is it wisdom, as it seems to me,

To make a virtue of necessity.

Geoffrey Chaucer, “The Knight’s Tale,” The Canterbury Tales

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.36 Whereas traditional virtue ethics tends to focus on character

formation and the cultivation of habits and virtues, Tessman focuses on contexts of

35 Parks, No Place Like Home?, 56. 36 Indeed, Tessman’s approach is redolent of earlier feminist critiques of virtue ethics, including Susan

Wolf’s excellent article “Moral Saints,” The Journal of Philosophy 79(8) (August 1982): 419-439).

16

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.”37 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.”38

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 eldercare 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.39 In the normative culture that prevails in the

American eldercare system, such as it is, “burden” is a taboo term.

37 Tessman, Burdened Virtues, 4. Oppression has also been importantly theorized in feminist ethics of care,

most notably by the late Iris Marion Young. See Iris Marion Young, Justice and the Politics of Difference

(Princeton, NJ: Princeton University Press, 1990), esp. ch. 2.The dichotomy of courage and oppression in

the clinical healthcare context has also been importantly raised, in ways that are also relevant to familial

care, by bioethicist and theological ethicist Margaret E. Mohrnann and her colleagues in Ann B. Hamric,

John D. Arras, and Margaret E. Mohrmann, “Must We Be Courageous?” The Hastings Center Report 45(3)

(2015): 33-40. Therein, the authors observe: “Courage is indispensable. Telling caregivers that they must

be courageous in difficult circumstances is sometimes a backhanded endorsement of oppression, however.”

In fact, I am deeply indebted to Professor Mohrmann for recommending the Tessman book to me when she

convened my presentation of an earlier version of this paper at the annual meeting of the Society of

Christian Ethics in 2007. 38 Ibid. 39 “Not wanting to be placed in a nursing home” probably nearly tied with “not wanting to be a burden” in

the American lexicon of expressed eldercare wishes, but these two desires increasingly come into conflict

17

Second, Tessman has not, to this author’s knowledge and research, specifically

written on issues of aging or eldercare. 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.”40 Tessman is, thus, critical of some

feminist care ethics for “blatantly promoting what can be seen as self-sacrificial traits.”41

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.”42 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

as frail elders need more skilled medical care than can be provided by their family in the home. For good

discussion of this theme, see Tara Bahrampour, “’Promise you’ll never put me in a nursing home,” The

Washington Post, February 8, 2016. 40 Tessman, Burdened Virtues, 66. In labeling Gilligan and other care ethicists “gynocenctric,” Iris Marion

Young identified the problematic relationship between the ethics of care and feminine self-sacrifice. See

Iris Marion Young, “Humanism, Gynocentrism, and Feminist Politics,” Women’s Studies International

Forum 8(3) (1985): 181 (“Gilligan’s accent on women’s traditional sovereignty in the private realm where

she cares for each person in her particularity, for example, fails to note how this ethic of care often leads

women to a sacrificing stance that can make us easily hurt.”). Joan Tronto also provided an early critique of

the role of gender in the ethics of care. See Joan Tronto, “Beyond Gender Difference to a Theory of Care,”

Signs 12(4) (1987): 644-663. See also Lorraine Code, “Care, Concern, and Advocacy: Is There a Place for

Epistemic Responsibility?” Feminist Philosophy Quarterly 1(1) (2015): Article 1. (“For many feminists

and Others . . . care is a persistently double-edged concept and practice. Its warm, feel-good aura which has

tended to situate it alongside “the feminine” as a naturally nurturing modality contrasts with a darker side

where women are confined as carers . . .”). There are also important critiques of care within the growing

fields of disability and vulnerability studies. See, e.g. Jonathan Herring, “The Disability Critique of Care,”

Elder Law Review 20(8) (2014): 1-15. 41 Ibid. 42 Ibid., 67.

18

between oversensitivity and indifference to others’ suffering,43 and her more recent focus on

“nonideal theory,”44 strongly recommends her framework for the study of care and

caregiving—especially eldercare on the “daughter track,” which can require 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.”45

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.”46 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.”47 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.

43 See ibid., 81-82 for Tessman’s discussion of the spectrum between anguish and indifference. 44 See Lisa Tessman, Moral Failure: On the Impossible Demands of Morality (New York: Oxford

University Press, 2014), esp. ch. 5 (“Idealizing Morality”). See also the essays in Lisa Tessman, ed.,

Feminist Ethics and Social and Political Philosophy: Theorizing the Non-Ideal (New York: Springer,

2009). 45 Tessman, Burdened Virtues, 5. Martha Nussbaum has also written compellingly of the effects of luck and

the vulnerability of ethics and the good life. See Martha C. Nussbaum, The Fragility of Goodness, 2nd ed.

(New York: Cambridge University Press, 2001), esp. chs. 11 and 12. 46 Ibid. 47 Ibid. A similar point seems to be made by philosopher Martha Nussbaum in her examination of “adaptive

preferences” and the potential for “deformation of character” in Women and Human Development: The

Capabilities Approach (New York: Cambridge University Press, 2000), esp. ch. 2 and ch. 4, sec. 5.

19

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.”48 She extend 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.” 49 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 eldercare,

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. Eldercare 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

48 Ibid., 7. 49 Ibid.

20

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.50 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.51

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.”52 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.”53 They are

situations, Tessman further argues, in which “being attuned to others’ suffering is

burdensome” and even “intrinsically painful,”54 both at an emotional level and in terms of

other harms incurred. Here again, the imperfection of the analogy between parenthood and

eldercare must be acknowledged. In the normal course of life, children grow up to lead

flourishing lives of their own. Not so with eldercare, 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

50 Resilience is also a nice feature of Martha Fineman’s vulnerability framework. See Fineman, “The

Vulnerable Subject: Anchoring Equality in the Human Condition” and “The Vulnerable Subject and the

Responsive State.” 51 For a good discussion of this, see Eileen Boris, “Caring for the Caretakers,” The Women’s Review of

Books 20 (10-11) (June 2003): 21 (reviewing Jennifer Parks’ No Place Like Home?). 52 Tessman, Burdened Virtues, 8. 53 Ibid. 54 Ibid.

21

caregiving. For the “daughter track,” caregiver, eldercare can be a situation in which

“flourishing tends to be diminished or unattainable.”55

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.56

It can also lead to the “moral damage,” from the sense that one is not or cannot live up to

one’s moral obligations.57 Terms like regret and damage can seem grim in connection with

the necessities of eldercare, 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 complete

control.”58

The ultimate risk that Tessman’s “burdened virtues” theory seeks to avoid is one in

which the agent “who is inordinately burdened cannot flourish.”59 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

55 Ibid., 9. 56 See discussion in ibid. ch. 2, esp. at 12-13. 57 See discussion in, ibid. ch. 3, esp. at 37. These problems of “agent-regret” and “moral damage” also

heavily inform Tessman’s follow-up to Burdened Virtues in Moral Failure. 58 Ibid., 38.

59Ibid..

22

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 seeking joy in the very face of oppression.”60 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.”61 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.”62 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

Be loved, be admired, be necessary; be somebody.

Simone de Beauvoir63

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

60 Ibid., 97. 61 Ibid., 96 (emphasis added). 62 Ibid., 10. 63 Simone de Beauvoir, Memoirs of a Dutiful Daughter (New York: HarperCollins, 2005).

23

caregiving64—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.65

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.66 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.67 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 eldercare system in the United States remains reliant mostly on private

rather than public solutions, and the ideal of eldercare 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

64 Even Eva Feder Kittay’s widely noted book Love’s Labor is significantly focused—importantly so—on

the triad of relations between her, her disabled daughter, and the daughter’s paid extrafamilial caregiver.

So, the analysis is not confined to purely intrafamilial caregiving. 65 Notable bioethics writings on family caregivers include, Stephen G. Post, “Women and Elderly Parents,”

Hypatia 5(1) (Spring 1990): 83-89; Minke Goldsteen et al., “What Is It to Be a Daughter? Identities Under

Pressure in Dementia Care,” Bioethics 21(1) (2007): 1-12. 66 For example, Joan Tronto and Virginia Held clearly envision their ethics of care framework as extending

beyond maternal and familial caregiving scenarios. See Joan Tronto, Moral Boundaries and Virginia Held,

Ethics of Care. See also the essays in Engster and Hamington, eds., Care Ethics and Political Theory, esp.

Virginia Held, “Care and Justice, Still” and Ruth Manning, “Care, Normativity, and the Law.” Eva Feder

Kittay has given some attention to eldercare in her theories of care and dependency. See e.g., Eva Feder

Kittay with Bruce Jennings and Angela A. Wasunna, “Dependency, Difference, and the Global Ethic of

Longterm Care,” The Journal of Political Philosophy 13(4) (2005): 443-469. 67 For a good discussion of eldercare in the Confucian tradition, see Ruiping,Fan, “Confucian Filial Piety

and Long Term Care for Aged Parents,” HEC Forum (2006): 1-17; William Sin, “The Demandingness of

Confucianism in Long-Term Caregiving,” Asian Philosophy 23(2) (2013): 166-179; Cecilia Wee, “Filial

Obligation: A Comparative Study,” Dao: A Journal of Comparative Philosophy (March 2014): 83-95p.

24

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.”68

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.”69 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.”70 Ultimately, Parks argues, “A system

that exploits women’s caretaking at the cost of their lives is completely immoral.”71

At this point, legal and political institutions in the United States are only

beginning to grapple with eldercare and the questions of justice raised, particularly for

68 Parks, No Place Like Home?, 11. For an excellent argument against appeal to tradition in a current

situation in which family caregivers are facing care demands that are historically unprecedented, see

chapter 2 on “Filial Obligations and Justice,” in Norman Daniels, Am I My Parents’ Keeper? : An Essay on

Justice Between the Young and the Old (New York: Oxford University Press, 1988), esp. 21-28. 69 Ibid., 18. 70 Ibid. 71 Ibid., 76 (emphasis added). For further analysis by Parks and colleagues of the ethics of eldercare, see

Martha B. Holstein, Jennifer A. Parks, and Mark H. Waymack, Ethics, Aging, and Society: The Critical

Turn (New York: Springer Publishing Company 2011. I should disclose that I was greatly privileged to

work with Martha Holstein at the Park Ridge Center for the Study of Health, Faith, and Ethics and am

indebted to her for putting issues of aging and eldercare on my radar screen then in ways that I could not

completely see at the time.

25

women on the “daughter track.”72 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 there, 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 begins 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 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.”73

This exodus from caregiving would likely come as a surprise to the 30% of adult children

who are currently providing eldercare to their family members, performing services that

exceed in value the total spending on all Medicare recipients in a given year.74 Such

72 For a good discussion of this, see Alison Reiheld, “Just Caregiving for Caregivers: What Society and the

State Owe to Those Who Render Care,” Feminist Philosophy Quarterly 1(2) (2015): Article 1. 73 Laurence Frolik and Richard Kaplan, Elder Law in a Nutshell, 6th ed. (St. Paul, MN: West Academic

Publishing, 2014), 2. 74 See Twyla Sketchley, “When you become your parent’s caregiver,” Montana Lawyer 38 (2012-2013): 8-

9 (citing a range of sources on eldercare statistics).

26

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 eldercare burden.75 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 eldercare must be or is best provided by family—especially by

daughters—in the home.76 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,

75 See United States Department of Labor, Family and Medical Leave Act Overview, available at:

http://www.dol.gov/whd/fmla. For a good comparative law study of family leave laws in the U.S. Canada,

Gand European nations, see Y. Tony Yang and Gilbert Gimm, “Caring for Elder Parents: A Comparative

Evaluation of Family Leave Laws,” Journal of Law, Medicine, and Ethics (Summer 2013): 501-513. 76 For further discussion of shortcomings of the FMLA and some other, more promising, legal and

legislative developments in the states on work leave, income replacement, and disability insurance in the

states, see Span, “Caregivers Must Sometimes Sacrifice Their Careers.”

27

either in the elder’s home or their own.77 Other interesting proposals include expanded

refundable tax credits,78 direct compensation through estate claims,79 and “caregiver

agreements,”80 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.81 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.82 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.83 On these sort of normative issues concerning

77 For more information on these, see the very informative website available at:

https://www.payingforseniorcare.com/longtermcare/resources/cash-and-counseling-program.html#title8. 78 See Molly Mettler, “”It’s Time to Give Family Caregivers a Break,” Wall Street Journal (The Experts

Blog), January 23, 2015; John Jankowski, “Caregiver Credits in France, Germany, and Sweden: Lessons

for the United States,” Social Security Bulletin 71(4) (2011): 61-76. 79 Heather M. Fossen, “Loosening the Wrapper on the Sandwich Generation: Private Compensation for

Family Caregivers,” Louisiana Law Review 63(2) (Winter 2003): 381-410; Jonathan S. Henes,

“Compensating Caregiving Relatives: Abandoning the Family Member Rule in Contracts,” Cardozo Law

Review 17 (1995-1996): 705-718. 80 See Sheena J. Knox, “Eldercare for the Baby Boom Generation: Are Caregiver Agreements Valid?”

Suffolk University Law Review (2011-2012): 1271-96. 81 While not on the subject of eldercare, a recent article on payments for primary caregivers of children may

also be worth thinking about in the eldercare context. See Merle H. Weiner, “Caregiver Payments and the

Obligation to Give Care or Share,” Villanova Law Review 59(1) (2014): 135-220. 82 Consistent with our technological age, one elder law scholar, departing from the recent film Robot &

Frank (2012, explores the regulatory and ethical dimensions of using robots and other technologies to

alleviate the care burden on family members. See Donna S. Harkness, “Bridging the Uncompensated

Caregiver Gap: Does Technology Provide an Ethically and Legally Viable Answer?” The Elder Law

Journal 22(2) (2014-2015): 399-448. 83 While there is a substantial legal and policy literature on the problem of elder abuse, or abuse of the

elderly by caregivers in various settings, there is next to nothing in the legal literature on the problem of

abuse of caregivers by the elderly, especially when the caregivers are their own adult children. But for

examples of some of the literature that is out there, see Carol Bradley Bursack, “Elders Who Abuse the

Relatives Who Are Taking Care of Them,” December 30, 2009, available at:

https://www.agingcare.com/Articles/elders-abusing-their-adult-children-or-caregivers-

137122.htm?cpage=34; Carol Bradley Bursack, “Can caregivers be subject to abuse by their care

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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.84 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 eldercare and family caregiving continue to grow.

From “Daughter Track” to “Graceful Pillars”: Support for Caregivers in Law and

Religion

Honor your father and your mother: that your days may be long upon the

land which the LORD your God gives you.

Exodus 20:1285

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.86 However, the biblical passage that seems most relevant to the “daughter track” is

the passage from Psalm 144--the epigrammatic beginning of 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

receivers?” October 12, 2011, available at: https://www.agingcare.com/Articles/elders-abusing-their-adult-

children-or-caregivers-137122.htm?cpage=34; Isabel Fawcett, “Abusive behavior in elders,” available at:

http://www.eldercarelink.com/Other-Resources/Caregiving-Support/abusive-behaviors-in-elders.htm. See

also Carol Bradley Bursack, Minding Our Elders: Caregivers Share Their Personal Stories (Fargo, ND:

McCleery and Sons Publishing, 2005). 84 For example, Nina Kohn has observed that state efforts to provide support for caregivers of the elderly

lack behind supports available for caregivers of children. See Nina A. Kohn, “Second Childhood: What

Child Protection Systems Can Teach Elder Protection Systems,” Stanford Law and Policy Review 14(1)

(2003): 197-198. This article is nearly a decade and a half old, and so well worth an update, but it does an

excellent job of attending to the situation of caregivers as well as recipients of care. 85 Bible, King James Version 2000. 86 Amy Ziettlow and Naomi Cahn, “The Honor Commandment: Law, Religion, and the Challenge of Elder

Care,” Journal of Law and Religion 30(2) (June 2015): 231, 239-40, 241, 254.

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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 eldercare 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 eldercare in which most other supports,

particularly in the U.S., are largely lacking. These daughters are being called to be not merely

beautiful, but strong. But every structure must undergo as “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 eldercare 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 conclusions.

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

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sense. Families are as prone to conflict and brokenness as any other human institution, 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 eldercare.87 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 eldercare 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

87 For a good theological discussion of the role that churches and other religious organizations can play in

eldercare, see Sarah M. Moses, Ethics and the Elderly: The Challenge of Long-Term Care (New York:

Orbis Books, 2015). The need to support caregivers of the elderly is also increasingly a focus of social

work and related fields. See Susan Beerman, “The Positive Impact of Caregiver Support Groups on Adult

Children of Aging Parents,” Elder’s Advisor, 4 (2002-2003): 35-39.

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and policy discussions of eldercare. Certainly, there are sons who provide eldercare—and

one hopes there will be more of them as the demographic explosion of the elderly unfolds.88

But the neutral formalities of the law should not obscure the reality that the burden of

eldercare 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 eldercare by men and women, and by families and

society.89 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.90 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 eldercare 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.

88 See. e.g. Metlife Mature Market Institute, The Metlife Study of Sons at Work: Balancing Employment and

Eldercare (New York: Metropolitan Life Insurance Company, June 2003). See also Phyllis Braudy Harris,

Sudan Orpett Long, and Miwa Fujii, “Men and elder care in Japan: A ripple of change?” Journal of Cross-

Cultural Gerontology, 13(2) (1998): 177-198; Man Guo, Iris Chi, and Merril Silverstein, “Trajectories and

Determinants of Elder Care in Rural China During an 8-Year Period: Why Having Sons Makes a

Difference,” Research on Aging June 30, 2015 10.11770164027515593346. In light of Asian norms of

filial piety, it is interesting to see that some of this shift toward greater participation of sons in eldercare

seems to be happening in parts of Asia. For more on this Asian context of eldercare, see the essay by

Guang Xing in this Symposium. 89 For a nice discussion of shared private and public responsibility, see Katie Wise, “Caring for Our Parents

in an Aging World: Sharing Public and Private Responsibility for the Elderly,” New York University

Journal of Legislation and Public Policy 5 (2001-2002): 563-598. 90 Ziettlow and Cahn, “The Honor Commandment,” 233.

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