Moral Issues in Mental Retardation

Ronald S. Laura, Adrian F. Ashman

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138602663
• eBook ISBN: 9780429890895
• Edition: 1
• Topic: Education
• Subtopic: Education General

First published in 1985. Despite the vast number of books available on mental handicap, there had been little published about moral, philosophical or ethical issues. Yet such issues must be faced and indeed answered, either explicitly or implicitly, before any system of education or care for mentally handicapped people can be put into practice.

This book reviews a number of issues in this field. Key topics addressed include: respect for retarded people; the notion of equal rights; terminating the lives of severely handicapped infants; and genetic engineering. With the current emphasis on recognising the rights and needs of the handicapped as individuals, this book should represent an important review and be of interest to all concerned with mentally handicapped people.

Chapter One

Equal Human Rights and Employment For Mentally Retarded Persons

Michael D. Bayles

Many handicapped persons and their advocates argue simply for equal rights with nonhandicapped persons. After years of having fewer rights than others, they believe that equal rights will provide a sufficient basis for social policies. But are equal rights enough? Or do handicapped people also need special rights which nonhandicapped people do not have? If so, is a claim to special rights compatible with the claim to equal rights? After presenting a strong argument for equal rights, this paper discusses the limitations of basing all policy on equal rights, and suggests a supplemental basis of duties.

As an important example of the difficulties of basing policy solely on equal rights, this paper focuses on equal human rights of persons living with the handicap of mental retardation and their implications for employment. Mental retardation is here understood to be a complex characteristic consisting of: (1) significantly subaverage general intellectual functioning; and, (2) deficits in adaptive behaviour which are; (3) manifested during the developmental period.[1]

Many mentally handicapped persons are not retarded, because they have normal intelligence. Similarly, persons with subnormal intelligence who do not manifest it during the developmental period are not classified as retarded. Subnormal intelligence can, for example, result from disease or injury later in life. In North America, it is estimated that about three percent of the population is mentally retarded. However, the adaptive aspect of its definition makes mental retardation at least partly relative to society. As society becomes more complex, more people of lower intelligence have difficulty adapting. Thus, mental retardation might become a more significant problem as society becomes more technologically and socially complex.

One must be clear about the definition of human rights. They are a subset of moral rights. As such, they must be distinguished from legal and social rights which must be legislated or recognized. To exist, human rights do not have to be legally or socially recognized. Indeed, one reason for asserting human and other moral rights is to gain legal or social acceptance. This is, however, not to say that all legal and social rights correspond to moral rights. Some are simply created as a matter of policy or efficiency, such as the right in the United States but not Canada for persons to deduct mortgage interest from their taxable income.

Human rights are those moral rights which all, or almost all, persons have, independent of their previous conduct or social position. Moreover, human rights are inalienable in that one cannot lose them or sell them to others. While inalienable, human rights are not absolute; that is, they do not necessarily always override other considerations.

Like all rights, the force or cutting edge of human rights lies in their imposing obligations on others. If human rights did not impose obligations on others, recognizing them would not be important. The right to life, for example, is important because it imposes an obligation on others not to kill. Sometimes it is unclear who has the obligations corresponding to human rights, but usually it is governments, everyone, or both.

These features of human rights make their advocacy desirable for those who speak on behalf of retarded persons. As human rights do not depend on previous conduct or social position, retarded persons do not have to show that they have earned them. As they are inalienable, retarded persons will not lose them. They are thus rights mentally retarded persons have equally with others. Since human rights impose obligations on others, they provide a strong basis for claims by retarded persons. Consequently, equal human rights appear to provide a strong basis for policy toward mentally retarded persons. The question is whether this basis is morally sufficient in such areas as employment.

The potential difficulties can be seen in the United Nations Declaration on The Rights of Mentally Retarded Persons. It first invokes faith in human rights. It then goes on to declare that mentally retarded persons have “the same rights as other human beings”.[2] Thus, mentally retarded persons are entitled to equal rights with nonretarded persons, but not to more rights than nonretarded persons, that is, to special rights. The U.N. Declaration specifies six sets of rights of mentally retarded persons. These rights must be rights all human beings have or derivable from them, or else

the claim to the same or equal rights must be abandoned.

Yet, because mentally retarded persons are especially disabled, morally adequate policies for them seem to require special considerations and rights. But if mentally retarded persons are granted special rights which nonretarded persons do not have, then they do not have the same rights. Equal rights are then not enough. Two people do not have the same or equal rights if one person has all those the other has and some additional rights. Moreover, as will be discussed, the force of the claim to equal rights undercuts the basis for claiming special rights for mentally retarded persons in areas like employment. Before discussing this point, however, it is important to see the force of an equal rights approach and why arguments of other groups, such as women and blacks, to special considerations are not plausible for mentally retarded persons.

Nondiscrimination

To see the power of the equal rights approach, one must consider it as a counter to the history of discrimination against mentally retarded persons. Mentally retarded persons have been denied the rights to work, to procreate, to marry, to attend schools, and to live in the community. The assertion of equal rights forcefully denies that mental retardation itself is a reason to discriminate against people. Mental retardation is not a characteristic which reflects on the moral worth of a person, as does, say, being vicious. The view that mentally retarded persons are disposed to immorality and crime, popular at the turn of the century, is mistaken. Moreover, not all mentally retarded persons are alike; they vary from mildly retarded persons who are a bit slow to profoundly retarded persons, some of whom are unable to feed or dress themselves or even to speak. To treat all mentally retarded persons the same and to assume that all lack the capacities for jobs or any of the activities mentioned is unfair and unjust. It is comparable to denying all women certain jobs simply because most women lack the physical strength to perform them. Thus, equal rights of mentally retarded persons implies that they must be considered individually and not discriminated against simply because they are retarded.

These contentions must not be misunderstood. They do not imply that one can never deny mentally retarded persons certain social advantages, meaning legal rights and privileges, social benefits and positions. If such social advantages are denied, however, it must not be simply because an individual is mentally retarded. Instead, one must show that the individual lacks abilities necessary for exercising particular social advantages or engaging in particular activities. Furthermore, these abilities must be shown to be relevant to the specific tasks involved. If mentally retarded persons are denied consideration for employment, it should be because they lack some ability required for the positions, just as nonretarded persons are denied consideration if they lack such an ability.

In the past, requirements have often been set for positions even though they were not necessary for performing the tasks of the jobs. Because intellectual and adaptive abilities are not relevant to many rights people have, such as the right not to be tortured, mentally retarded persons ought not be denied such rights on any ground. The burden is always on those who wish to exclude a person from a social advantage such as a job, to show both that an ability is necessary for it and that an individual lacks that ability.

Many people believe that if mental retardation is not itself a justifiable ground for discrimination, then one cannot consistently try to avoid and prevent mental retardation. If mental retardation is not a basis for discrimination, how can it be an undesirable characteristic? As one author has written, “It takes considerable rhetorical agility to urge the public to support screening programs so as to prevent the conception of handicapped individuals while at the same time insisting that full respect be paid to such developmentally disabled adults as are already among us”.[3] However, this problem is not as difficult as alleged.

An analogy with physical disabilities is appropriate. First, few if any people today believe that a physical disability, such as loss of a limb, is a reason for discriminating against a person. Second, due to physical disabilities, some people lack abilities necessary for certain social advantages, such as specific jobs. Third, even though physically disabled persons have equal rights with nondisabled persons, physical disabilities are undesirable. Fourth, society takes serious measures to prevent physical disabilities due to accidents or other causes. Parallel considerations apply to mentally retarded persons. For instance, first, mental retardation is not a reason for discriminating against a person. Second, due to mental retardation, some people lack abilities necessary for certain social advantages, especially many jobs. Third, mental retardation is undesirable; no one wants to be mentally retarded. Fourth, society takes measures to prevent mental retardation due to drugs taken by pregnant women, physical injury in childbirth, and gene-based disorders such as phenylketonuria.

Consider the problem of whether to abort fetuses determined to have mental defects. The same problem exists for physical as for mental defects, but no one believes it suggests physical defects are not undesirable. Indeed, were mental retardation not considered undesirable, the question of aborting affected fetuses would not arise. However, this problem is one of the ethics of abortion rather than mental retardation. How one resolves this issue depends on one’s view of abortion[4], not one’s view of the desirability of mental retardation.

Thus far, the argument for the equal rights of mentally retarded persons is impressive and sound. However, it has a disturbing implication. The argument has been that denying persons social advantages because they are mentally retarded violates their equal rights. But if the claim to equal rights implies that it is wrong to discriminate against persons because they are mentally retarded, it also seems to imply that it is wrong to discriminate in their favour (give preferential treatment) in employment and other areas because they are mentally retarded. Mental retardation itself should be morally irrelevant, a basis for neither unfavourable nor favourable treatment. How can one say that mental retardation is irrelevant when people are denied social advantages, but relevant for awarding social advantages? Thus, the claim to equal rights undercuts claims to additional special rights because people are mentally retarded.

A similar and much discussed problem has arisen with respect to preferential treatment of women and blacks in employment and education. However, the reasons often offered for preferential treatment of women and blacks are not applicable to mentally retarded persons. One argument for preferential treatment of women and blacks is that it compensates for past discrimination. An underlying premise is that one day all the handicaps due to previous discrimination will be gone, and then special social advantages will no longer be justified. Any job related handicaps they suffer are due to inadequate education and employment experience; remove these and they will be equally capable. Unfortunately, one cannot foresee the day when the handicaps of persons who are mentally retarded will disappear, for that simply amounts to eliminating mental retardation.

A second argument has been that discriminating on the basis of a characteristic (for example, being female, black, or mentally retarded) is wrong only if the discrimination indicates people are second-class citizens, stigmatizes them as inferior, or denies them significant participation in social life.[5] The crucial difficulty in applying this principle to mentally retarded persons is that any program which singles them out, even for preferential treatment as in sheltered workshops, is almost certain to stigmatize them as inferior. Many persons have suggested that selecting blacks and women for preferential treatment indicates they are inferior or they would not need special advantages, and labelling theory makes this claim even more likely to be true for mentally retarded persons.

A further consideration is that preferential treatment for mentally retarded persons is unfair to nonretarded persons who might equally benefit from special programs. For example, persons whose general intellectual functioning is not low enough to qualify them as mentally retarded might benefit from special job training or other employment advantages as much as those who are mentally retarded. Other people with sufficiently sub-average intelligence are not mentally retarded because their deficit was not manifest during the developmental period. In short, mental retardation is not a characteristic which determines a unique class of persons who can benefit from special social advantages, so its use as a basis for awarding them is unfair.

The appeal of the equal rights approach is the strong argument it provides against discriminating against people because they are mentally retarded. But on the equal rights approach, just as mental retardation is not a morally relevant basis for denying people social advantages, it cannot be a morally relevant basis for awarding them. Yet, to develop their potential, mentally retarded persons need special social advantages, advantages others do not need. If the equal rights approach is to support special considerations for mentally retarded persons, it must be on the basis of what is involved in the rights themselves.

Rights and Special Employment Advantages

To determine whether equal rights can justify special social advantages for mentally retarded persons, as in employment, the nature of rights must be more precisely considered. To have a right is to have a valid claim or entitlement against one or more persons to some condition. To be precise about rights, one must specify who has the right, against whom it is held, and to what condition. There is no problem in specifying who has the rights: all retarded persons. Those against whom the rights are held are those people who have corresponding obligations.. As noted earlier, for human rights these obligations are either everyone or governments. For present purposes, the most important consideration is precisely specifying to what the rights entitle one.

Rights can be to either of two types of conditions. One can either have a right to some desirable condition or state of affairs, or to have an opportunity to bring about such a condition or state of affairs. Rights to the existence of some states of affairs can be called ‘outcome rights’, and rights to bring about those states of affairs can be called ‘opportunity rights’. For example, a right to adequate housing is a right actually to have adequate housing. In contrast, a right to sexual freedom is to an opportunity to have sexual intercourse, not actually to have it.

The distinction between outcome and opportunity rights is not the same as that between positive and negative rights. The latter are usually distinguished by whether others are obligated actually to perform an action or only to refrain from action. There are significant difficulties in distinguishing rights on this basis.[6] The distinction above is based on what the rightholder obtains, not on...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Table of Contents
• Acknowledgements
• Preface
• Contributors
• Introduction: The Philosophy of Special Education
• 1 Equal Human Rights and Employment For Mentally Retarded Persons
• 2 Ambivalence of Attitude to The Mentally Retarded
• 3 The Ethics of De-Institutionalisation - and Afterwards
• 4 Mental Retardation and Paternalist Control
• 5 Psychosurgery and the Mentally Retarded
• 6 Can we Avoid Assigning Greater Value to Some Human Lives Than to Others?
• 7 Infanticide
• 8 Long Days Journeys Into Night: The Tragedy of the Handicapped at Risk Infant
• 9 Genetics and Mental Retardation
• 10 Mental Retardation and Genetic Engineering
• 11 Rights, Interests, and Mental Handicap