This essay, by Oxford graduate student Jessica Laimann, is one of the two finalists in the graduate category of the inaugural Oxford Uehiro Prize in Practical Ethics. Jessica will be presenting this paper, along with three other finalists, at the 12th March final.

Is prohibition of breast implants a good way to undermine harmful and unequal social norms?

1 Introduction

Some individuals decide to inflict harm on themselves. Examples range from smoking or fasting, up to self-mutilation or suicide. In liberal moral theory, paternalistic interventions, that is, interventions with an individual’s choices for the individual’s own good, are considered prima facie morally wrong. Clare Chambers agrees with the liberal presumption against paternalism. However, she argues that some self-harming choices do permit interference due to the circumstances in which they occur. These are choices made in the context of unequal and harmful social norms, which fulfil the following three conditions (see Chambers 2008, 265):

The practice is significantly harmful to the individuals who engage in it.

Individuals engage in the practice in order to attain benefits which are norm-dependent – the benefits are linked to engagement in the practice only in virtue of social conventions.

The social norm that links the practice to the benefits undermines social or political equality.

The first condition requires that the inflicted harm must be serious enough not to make state intervention seem vastly disproportional (see Chambers 2008, 195). The second condition requires that the connection between engaging in the harmful practice and attaining the benefit is a purely social one – engaging in the harmful practice makes it easier or more likely to get the benefit only in virtue of the existence of certain social norms and values. The third condition requires that the social norm creates or reinforces social inequalities. According to Chambers, cosmetic surgery like breast implants fulfils these conditions (see Chambers 2008, 186-190).

Chambers’ proposal competes with other measures, such as public education, anti-discrimination policies, and advertisement regulations, which aim at weakening harmful norms and changing the underlying social incentive structure without directly interfering with women’s choices. I evaluate this proposal along three dimensions (autonomy, gender equality and prevention of harm, and respect) and argue that, instead of prohibiting breast implants, we should in fact subsidise them.

2 Autonomy

Chambers argues that prohibition is not paternalistic, because it fulfils rather than conflicts with women’s preferences. She presupposes that women’s preference structures are as follows: they prefer, first, for the norm not to exist (which means being able to achieve the benefit without having to suffer the harm); and second, if the object of the first preference is unattainable, to endure the harm in order to attain the benefit.

Let’s assume that women do in fact have this preference structure. In this case, prohibition will still not fulfil their preferences. To see this, consider the mechanism Chambers’ proposal seems to rely on (see Chambers 2008, 222-224):

If breast implants are illegal, the number of women who conform to the standard will shrink. Assuming that the number of individuals to receive the benefit (e.g. respect, being considered attractive, certain career options) remains roughly the same, it will at some point be impossible to reserve the benefit only to those individuals who conform to the beauty standard. As a result, individuals who do not conform to the norm will gradually be admitted to fill the gaps, and the norm will slowly erode.

Even if this mechanism works as described and will undermine the norm eventually, it will be a slow process that operates at the scale of years and decades. In the meantime, there will be a transition period where the norm remains effective (individuals cannot achieve the benefit without conforming to the norm) but at the same time, they cannot conform to the norm because breast implants are prohibited. As a result, individuals who are affected by Chambers’ proposal can achieve neither their first nor their second preference: the norm is still regulating their desired benefit and their only option for achieving that benefit has been banned by the state. As a result, Chambers’ proposal conflicts with the preferences of those individuals who would be affected by it.

3 Gender equality and prevention of harm

According to Chambers, her proposal does pursue further objectives. If prohibition succeeds to undermine the harmful, unequal social norm, it will thereby promote gender equality and prevent harm for women (see Chambers 2008, 265). In that case, Chambers’ proposal would aim to reduce gender inequality and the harm suffered by women at the cost of interfering with their autonomous choices – a trade-off which does not seem obviously indefensible. However, there is an ambiguity about which women Chambers is referring to: those who are currently affected by the norm, or future generations of women. Once we resolve this ambiguity, we can see that Chambers’ proposal not only conflicts with the preferences of the affected women, but also involves a twofold injustice against them.

The alleviation of a bad is often costly. Who should pay the costs? In case someone can be identified as responsible for creating or sustaining the bad, a usual response would be that this person should pay. Yet, in the case at hand, the relevant bad, i.e. the harmful and unequal social norm, has not been created or sustained by any existing individual(s) in particular. Instead, the norm is currently sustained by ‘society as a whole,’ in the form of many small interactions of its members that reproduce the underlying values.

The fact that the responsibility for sustaining the social norm is a collective one implies that the costs, too, ought to be paid collectively. Chambers’ proposal, by contrast, only affects women – in particular those who are most strongly influenced by the social norm in question. Like other members of society, these women probably share responsibility for sustaining the social norm in virtue of numerous actions, and by undertaking the surgery, they would directly reinforce it. However, unlike other compliances, they are also the biggest victims. They can attain a certain benefit only by undergoing painful and otherwise unnecessary surgery, and desire this benefit desperately enough to be willing to do so. Hence, instead of distributing the costs equally among those who are responsible for sustaining the social norm, Chambers’ proposal puts the lion’s share on those women who already suffer most from the norm.

It could be argued that this injustice is mitigated or even neutralised by the fact that these women would also benefit most from undermining the social norm. But in fact, the injustice is further augmented by a form of transitional injustice. As argued in Section 2, the timescale at which the mechanism for undermining social norms by prohibition operates is such that the individuals who pay the costs today will almost certainly no longer exist to enjoy the benefits. If Chambers’ proposal succeeds, future women might no longer have to face the pressure to undertake unnecessary and harmful surgery. Yet women in the transition period pay the price because prohibition deprives them of the only means to achieve the desired benefits.

In sum, though Chambers’ proposal might have positive effects in promoting gender equality and preventing harm for future generations of women, the double injustice inflicted on those generations of women who live in the transition period makes it a questionable means for achieving these aims.

4 Respecting the individual

With regard to the question of respect, Chambers makes two claims (see Chambers 2008, 198-200). First, respecting an individual’s choice is sometimes incompatible with respecting the individual, and may therefore require us not comply with her decision. Second, in the case at hand, prohibition is the best way to respect the individual, whereas submitting to the individual’s will is disrespectful. I agree with the first claim, but disagree with the second.

To begin with, I suppose that a society which creates individuals who are (often rightly) convinced that they cannot attain certain social positions, or be considered attractive, successful, or worthy of respect, unless they undergo harmful and unnecessary operations, has failed to respect them in many ways. However, individuals who are willing to undergo the operation in this social context are likely to consider their choice as empowering, as a way to gain authority over the situation and change their lot. As a result, prohibition will not only seem like a disturbingly inconsistent measure to those who are affected by it – from their perspective, the same society that led them to believe that a painful and unnecessary operation is the only way to achieve a deeply held desire is now prohibiting them from acting accordingly. Preventing individuals from undertaking the surgery will also effectively deprive them of an option to exercise control over their lives in unfavourable circumstances, without providing any viable alternative.

Hence, I suggest that creating or maintaining the circumstances which make women believe that cosmetic surgery is a reasonable option is extremely disrespectful, yet preventing them from acting on that desire is not a good way to restore respect, and even more likely to achieve the opposite.

5 Conclusion and outline of an alternative proposal

My analysis shows that Chambers’ proposal can promote gender equality and prevent harm for future women only at significant costs of women today. It impairs their autonomy, inflicts unjust costs on them, and fails to respect them as individuals. These results suggest that, instead of hindering individuals from harming themselves, we need to address the circumstances that make them willing to harm themselves in the first place.

A combination of different measures seems to provide the best way to achieve this. The first set of measures includes legal regulations which make it harder to promote these norms or to make certain benefits conditional on compliance with them, and, most importantly, public education campaigns about the norms’ harmfulness and relation to a background culture of gender inequality. As outlined at the beginning, these measures aim to change the social incentive structure without interfering with women’s choices. They therefore promote gender equality and the prevention of harm for future generations of women without any of the negative side effects of prohibition. Since the measures are state funded, the costs will be borne collectively instead of pressing the shoulders of those who are already disadvantaged. Moreover, by addressing the background culture, they challenge not only the symptoms but also the causes of harmful and unequal social norms, and are therefore likely to promote gender equality more efficiently.

However, if we compare these initiatives to Chambers’ proposal, something seems to be missed out. While the campaigns and laws are changing harmful norms in the long run, women continue to undertake unnecessary, painful, and risky surgery, and therefore continue to pay a price for a socially regulated benefit that they should not be required to pay. Chambers could object that in my proposal’s transition period, too, women suffer substantial harm and injustice that should not be neglected. I agree with Chambers that this ongoing harm and injustice needs to be accounted for, but suggest doing so in a way that respects women’s choices in either case. Hence, individuals who decide not to comply with the norm, and are therefore deprived of the benefit that other individuals are granted ‘for free,’ need to be compensated for the forgone benefit. Individuals who choose to comply, and therefore pay the price of undergoing a painful and risky operation, are entitled to a fully subsidised treatment as well as compensation for the immediate and long-term harms they may suffer due to the operation.

Reference: Chambers, Clare (2008): Sex, culture, and justice. The limits of choice. University Park: Pennsylvania State University Press.