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Monday, May 20, 2013

Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"

One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)

Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...

There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?

For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.

Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.

Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.

Now one distinction might be the anti-commodificationist objections I gestured at above in the sex therapy or prostitution case, that distinguish health care. But for those not moved to forbid the kinds of services Cheryl provides Mark on these grounds, should the state pay? Perhaps there is, to use Radin's term, there is an opportunity for an incomplete commodification posture by allowing it to be bought and sold but not having the government pay.

Others might say the kind of good Mark seeks, sexual satisfaction from a paid therapist, is a kind of ersatz version of what is good. I am not sure I agree with this, and think that there are many for whom sex with a relative stranger may be as valued as sex with a life partner, and this notion seems somewhat quaint in an era of hooking up and open relationships. In any event, even if you think this is a kind of second-class good, many health interventions also offer less than ideal artificial substitutes (prosthetic limbs instead of real ones) but that does not stop us from funding it.

Still others might agree that this is a valuable thing to fund for for someone like Mark, but suggest it should get relatively low priority in the pantheon of health care and education interventions. To those I would push back and say man people spend a disproportionate part of their life in search of a sexual partner, and attempts to cope with sexual dysfunction (e.g., Viagra) is something on which many Americans put their money where their mouth is (hmm... maybe not the best choice of aphorism in this context...)

Finally, some might object that some people with disabilities would not want these services. Fair enough, but as with Nussbaum's capabilities approach we are talking about enabling those who want it not forcing it on those who don't.

As I said, this is meant to be provocative. But I will be curious to know what others think, does the state have an obligation to fund these services the way it does health care? If so, should that obligation extend beyond those with disabilities like Mark to those who face other deficits making sexual relationships hard to achieve?

- I. Glenn Cohen

Posted by Ivan Cohen on May 20, 2013 at 09:52 AM in Gender | Permalink

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We might find a framework for the analysis in the ongoing dispute over whether sexual activity is a major life activity under the ADA.

It also occurs to me your students might enjoy comparing the portrayal of Mark O'Brien in The Sessions with Mark O'Brien's own self-presentation in the award winning 1996 documentary Breathing Lessons.

Posted by: Ann Marie Marciarille | May 21, 2013 2:39:25 AM

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