I’m pretty sure that when Max Weber wrote about the march toward increasing rationalization and disenchantment in modern societies that he didn’t anticipate the kinds of irrational and mysterious situations that advanced bureaucracies would produce. While he certainly understood that the efficiency that specialization and impersonality produce could also produce red tape and iron cages, I don’t think he’d imagined that we’d have irrationally rationalized even the mystical processes of birth and death the way we have. (I think even George Ritzer and Bryan Caplan, both focused on bureaucracy, democracy, and rational irrationality at the end of the 20th and start of the 21st century would find their imaginations stretched by some of the realities we have produced!) Consider specifically the bureaucratization of birth and death. Several recent stories serve as illustrations of the sheer irrationality of legal-rational systems:
In Brooklyn, a judge stopped adoption proceedings of a married lesbian couple because according to New York State law, a child born to married parents is already legally their child. This is a problem for the couple in question for many reasons, not the least of which is that their marriage is only recognized in a handful of states. What if they move? What if they want to travel abroad? What if they split up?
In Kansas, a judge demanded that a sperm donor who waived all parental rights pay child support – essentially compensating the state back for public assistance it granted to the legal parents of the child – because he is the “presumptive father”. The key to the case is that the sperm donation was handled informally. Had it been managed anonymously through a clinic and overseen by a doctor, the man would be off the hook.
And on the other end of the life and death spectrum are two differently tragic cases that are probably much more familiar to you. One the one hand we have the case of Jahi McMath, a California teenager who died after a tonsillectomy, but whose body was kept functioning by machine support despite a declaration of brain death. A death certificate was issued, and ultimately a judge allowed McMath’s body, still supported by machines, to be released to the coroner’s office, which then released it to her parents, who had found a facility that would accept a patient who was legally dead. As recently as today, McMath’s mother is reported to believe that her daughter is alive.
On the other hand, we had the case of Marlise Munoz, whose body was kept on machine support for several weeks because a Texas hospital believed the law required it to do so to protect the life of the fetus she was carrying. Her death occurred November 28, 2013, but her body was not removed from machine support until January 27, two months later, after a court declared that the Texas law, which prohibits the removal of “life sustaining treatment” from a pregnant patient, did not apply to Ms. Munoz because she was dead.
Clearly bureaucratization and rationality are not always connected. Legal definitions of parenthood will never capture the entirety of human family arrangements, and despite what seems like a clear and unified legal definition of death, human interpretations astound and confound. By turning birth and death into bureaucratic designations rather than understanding them as deeply personal phenomena we actually create some pretty mystifying outcomes.
No matter how carefully we write our laws we will never be able to account for the entirety of human experience. But we need to do better. We need to do better at creating a legal framework that recognizes and supports the complexity of human families. And we need to do better at helping those same families navigate the complexities of death. This includes sensitivity to differing understandings of death. Ultimately, I would hope it also includes a greater acceptance of death as a part of a person’s life, rather than as a medical problem that needs to be staved off at all costs.
Ultimately, we need to understand that while we reach for the law to protect us, often its purpose is to control and define. While we can’t afford to ignore the law in our social justice work, we need to resist the temptation to see it as our best solution. We need to focus on the work of human relationships, and on community-building. That’s our best escape from Weber’s iron cage.