Having reached this point in the discussion of restrictive eugenics, it may be profitable to consider the so-called "eugenic laws" which have been before the public in many states during recent years. They are one of the first manifestations of an awakening public conscience on the subject of eugenics; they show that the public, or part of it, feels the necessity of action; they equally show that the principles which should guide restrictive eugenics are not properly understood by most of those who have interested themselves in the legislative side of the program.
Twelve states now have laws on their statute books (but usually not in force) providing for the sterilization of certain cla.s.ses of individuals. Similar laws have been pa.s.sed in a number of other states, but were vetoed by the governors; while in many others bills have been introduced but not pa.s.sed. We shall review only the bills which are actually on the statute books in 1916, and shall not attempt to detail all the provisions of them, but shall consider only the means by which they propose to attain a eugenic end.
The state of Indiana allows the sterilization of all inmates of state inst.i.tutions, deemed by a commission of three surgeons to be unimprovable physically or mentally, and unfit for procreation. The object is purely eugenic. After a few hundred operations had been performed in Jeffersonville reformatory, the law aroused the hostility of Governor Thomas R. Marshall, who succeeded in preventing its enforcement; since 1913 we believe it has not been in effect. It is defectively drawn in some ways, particularly because it includes those who will be kept in custody for life, and who are therefore not proper objects of sterilization.
The Washington law applies to habitual criminals and s.e.x offenders; it is a punitive measure which may be ordered by the court pa.s.sing sentence on the offender, but has never been put in force. Sterilization is not a suitable method of punishment, and its value as a eugenic instrument is jeopardized by the interjection of the punitive motive.
California applied her law to all inmates (not voluntary) of state hospitals for the insane and the state home for the feeble-minded, and all recidivists in the state prisons. The motive is partly eugenic, partly therapeutic, partly punitive. It is reported[88] that 635 operations have been performed under this law, which is administered by the state commission for the insane, the resident physician of any state prison, and the medical superintendent of any state inst.i.tution for "fools and idiots." For several years California had the distinction of being the only state where sterilization was actually being performed in accordance with the law. The California measure applies to those serving life sentences--an unnecessary application. Although falling short of an ideal measure in some other particulars, it seems on the whole to be satisfactorily administered.
Connecticut"s law provides that all inmates of state prisons and of the state hospitals at Middletown and Norwich may be sterilized if such action is recommended by a board of three surgeons, on eugenic or therapeutic grounds. It has been applied to a few insane persons (21, up to September, 1916).
Nevada has a purely punitive sterilization law applying to habitual criminals and s.e.x offenders. The courts, which are authorized to apply it, have never done so.
[Ill.u.s.tration: FEEBLE-MINDED MEN ARE CAPABLE OF MUCH ROUGH LABOR
FIG. 30.--Most of the cost of segregating the mentally defective can be met by properly organizing their labor, so as to make them as nearly self-supporting as possible. It has been found that they perform excellently such work as clearing forest land, or reforesting cleared land, and great gangs of them might profitably be put at such work, in most states. Photograph from the Training School, Vineland, N.
J.]
[Ill.u.s.tration: FEEBLE-MINDED AT A VINELAND COLONY
FIG. 31.--They have the bodies of adults but the minds of children. It is not to the interest of the state that they should be allowed to mingle with the normal population; and it is quite as little to their own interest, for they are not capable of competing successfully with people who are normal mentally.]
Iowa"s comprehensive statute applies to inmates of public inst.i.tutions for criminals, rapists, idiots, feeble-minded, imbeciles, lunatics, drug fiends, epileptics, syphilitics, moral and s.e.xual perverts and diseased and degenerate persons. It is compulsory in case of persons twice convicted of felony or of a s.e.xual offense other than "white slavery," in which offense one conviction makes sterilization mandatory.
The state parole board, with the managing officer and physician of each inst.i.tution, const.i.tute the executive authorities. The act has many objectionable features, one of the most striking of which is the inclusion of syphilitics under the head of persons whom it is proposed to sterilize. As syphilis is a curable disease, there is scarcely more reason for sterilizing those afflicted with it than there is for sterilizing persons with measles. It is true that the sterilization of a large number of syphilitics might have a eugenic effect, if the cured syphilitics had a permanently impaired germ-plasm--a proposition which is very doubtful. But the framers of the law apparently were not influenced by that aspect of the case, and in any event such a method of procedure is too round-about to be commendable. Criminals as such, and syphilitics, should certainly be removed from the workings of this law, and dealt with in some other way. However, no operations are reported as having been performed under the act.
New Jersey"s law, which has never been operative, represents a much more advanced statute; it applies to inmates of state reformatories, charitable and penal inst.i.tutions (rapists and confirmed criminals) and provides for a board of expert examiners, as well as for legal procedure.
New York"s law, applying to inmates of state hospitals for the insane, state prisons, reformatories and charitable inst.i.tutions, is also fairly well drawn, providing for a board of examiners, and surrounding the operation with legal safeguards. No operations have been performed under it.
North Dakota includes inmates of state prisons, reform school, school for feeble-minded and asylum for the insane in its law, which is administered by a special board. Although an emergency clause was tacked on, when it was pa.s.sed in 1913, putting it into effect at once, no operations have been performed under it.
Michigan"s law applies to all inmates of state inst.i.tutions maintained wholly or in part at public expense. It lacks many of the provisions of an ideal law, but is being applied to some of the feeble-minded.
The Kansas law, which provides suitable court procedure, embraces inmates of all state inst.i.tutions intrusted with the care or custody of habitual criminals, idiots, epileptics, imbeciles or insane, an "habitual criminal" being defined as "a person who has been convicted of some felony involving moral turpitude." It has been a dead letter ever since it was placed on the statute books.
Wisconsin[89] provides for a special board to consider the cases of "all inmates of state and county inst.i.tutions for criminal, insane, feeble-minded and epileptic persons," prior to their release. The law has some good features, and has been applied to a hundred or more feeble-minded persons.
In 1911 the American Breeders" a.s.sociation appointed a "Committee to Study and Report on the Best Practical Means of Cutting Off the Defective Germ-Plasm in the American Population," and this committee has been at work ever since, under auspices of the Eugenics Record Office, making a particular study of legal sterilization. It points out[90] that a sterilization law, to be of the greatest possible value, must:
(1) Consider sterilization as a eugenic measure, not as a punitive or even therapeutic one.
(2) Provide due process of law, before any operation is carried out.
(3) Provide adequate and competent executive agents.
(4) Designate only proper cla.s.ses of persons as subject to the law.
(5) Provide for the nomination of individuals for sterilization, by suitable procedure.
(6) Make an adequate investigation of each case, the family history being the most important part, and one which is often neglected at present.
(7) Have express and adequate criteria for determining upon sterilization.
(8) Designate the type of operation authorized.
(9) Make each distinct step mandatory and fix definitely the responsibility for it.
(10) Make adequate appropriation for carrying out the measure.
Tested by such standards, there is not a sterilization law in existence in the United States at the time this is written that is wholly commendable; and those introduced in various states during the last few years, but not pa.s.sed, show few signs of improvement. It is evident that the commendable zeal has not had adequate guidance, in the drafting of sterilization legislation. The committee above referred to has drawn up a model law, and states which wish to adopt a program of legislative sterilization should pa.s.s a measure embodying at least the principles of this model law. But, as we have pointed out, wholesale sterilization is an unsatisfactory subst.i.tute for segregation. There are cases where it is advisable, in states too poor or n.i.g.g.ardly to care adequately for their defectives and delinquents, but eugenists should favor segregation as the main policy, with sterilization for the special cases as previously indicated.
There is another way in which attempts have recently been made to restrict the reproduction of anti-social persons: by putting restrictions on marriage. This form of campaign, although usually calling itself eugenic, has been due far less to eugenists than to s.e.x hygienists who have chosen to sail under a borrowed flag. Every eugenist must wish them success in their efforts to promote s.e.x hygiene, but it is a matter of regret that they can not place their efforts in the proper light, for their masquerade as a eugenic propaganda has brought undeserved reproach on the eugenics movement.
The customary form of legal action in this case is to demand that both applicants for a marriage license, or in some cases only the male, sign an affidavit or present a certificate from some medical authority stating that an examination has been made and the applicant found to be free from any venereal disease. In some cases other diseases or mental defects are included. When the law prevents marriage on account of insanity, feeble-mindedness, or other hereditary defect, it obviously has a eugenic value; but in so far as it concerns itself with venereal diseases, which are not hereditary, it is only of indirect interest to eugenics. The great objection to such laws is that they are too easily evaded by the persons whom they are intended to reach--a fact that has been demonstrated conclusively wherever they have been put in force.
Furthermore, the nature of the examination demanded is usually wholly inadequate to ascertain whether the applicant really is or is not afflicted with a venereal disease. Finally, it is to be borne in mind that the denial of a marriage license will by no means prevent reproduction, among the anti-social cla.s.ses of the community.
For these reasons, the so-called eugenic laws of several states, which provide for a certificate of health before a marriage license is issued, are not adequate eugenic measures. They have some value in awakening public sentiment to the value of a clean record in a prospective life partner. To the extent that they are enforced, the probability that persons afflicted with venereal disease are on the average eugenically inferior to the unaffected gives these laws some eugenic effect. We are not called on to discuss them from a hygienic point of view; but we believe that it is a mistake for eugenists to let legislation of this sort be anything but a minor achievement, to be followed up by more efficient legislation.
Laws which tend to surround marriage with a reasonable amount of formality and publicity are, in general, desirable eugenically. They tend to discourage hasty and secret marriages, and to make matrimony appear as a matter in which the public has a legitimate interest, and which is not to be undertaken lightly and without consideration. Laws compelling the young to get the consent of their parents before marriage are to be placed in this category; and likewise the German law which requires the presentation of birth-certificates before a marriage license is issued.
A revival under proper form of the old custom of publishing the banns is desirable. Undoubtedly many hasty and ill-considered marriages are contracted at the present time, with dysgenic results, which could be prevented if the relatives and friends of the contracting parties knew what was going on, and could bring to light defects or objections unknown or not properly realized by the young people. Among other states, Missouri has recently considered such a law, proposing that each applicant for a marriage license be required to present a certificate from a reputable physician, stating in concise terms the applicant"s health and his fitness to marry. Notice of application for a marriage license shall be published in a daily paper three consecutive times, at the expense of the county. If at the expiration of one day from the publication of the last notice, no charges have been filed with the recorder alleging the applicants" unfitness to marry, license shall be granted. If objection be made by three persons not related in blood to each other, on the ground of any item mentioned in the physician"s certificate, the case shall be taken before the circuit court; if the court sustains the objection of these three unrelated persons, a license to wed shall be denied; if the court overrules the objection, the license shall be granted and court costs charged to the objectors.
Although interesting as showing the drift of public sentiment toward a revival of the banns, this proposed law is poorly drawn. Three unrelated laymen and the judge of a circuit court are not the proper persons to decide on the biological fitness of a proposed marriage. We believe the interests of eugenics would be sufficiently met at this time by a law which provided that adequate notice of application for marriage license should be published, and no license granted (except under exceptional circ.u.mstances) until the expiration of two weeks from the publication of the notice. This would give families and friends time to act; but it is probably not practicable to forbid the issuance of a license at the expiration of the designated time, unless evidence is brought forward showing that one of the applicants is not legally capable of contracting marriage because of a previous mate still living and undivorced, or because of insanity, feeble-mindedness, under age, etc.
Such a law, we believe, could be put on the statute books of any state, and enforced, without arousing prejudices or running counter to public sentiment; and its eugenic value, if small, would certainly be real.
This exhausts the list of suggested coercive means of restricting the reproduction of the inferior. What we propose is, we believe, a very modest program, and one which can be carried out, as soon as public opinion is educated on the subject, without any great sociological, legal or financial hindrances. We suggest nothing more than that individuals whose offspring would almost certainly be subversive of the general welfare, be prevented from having any offspring. In most cases, such individuals are, or should be, given life-long inst.i.tutional care for their own benefit, and it is an easy matter, by segregation of the s.e.xes, to prevent reproduction. In a few cases, it will probably be found desirable to sterilize the individual by a surgical operation.
Such coercive restriction does, in some cases, sacrifice what may be considered personal rights. In such instances, personal rights must give way before the immensely greater interests of the race. But there is a much larger cla.s.s of cases, where coercion can not be approved, and yet where an enlightened conscience, or the subtle force of public opinion, may well bring about some measure of restraint on reproduction. This cla.s.s includes many individuals who are not in any direct way detrimental to society; and who yet have some inherited taint or defect that should be checked, and of which they, if enlightened, would probably be the first to desire the elimination. The number of high-minded persons who deliberately refrain from marriage, or parenthood, in the interests of posterity, is greater than any one imagines, except a eugenist brought into intimate relations with people who take an intelligent interest in the subject.
X. comes, let us say, from a family in which there is a persistent taint of epilepsy, or insanity. X. is a normal, useful, conscientious member of society. To talk of segregating such an individual would be rash. But X. has given some thought to heredity and eugenics, and decides that he, or she, will refrain from marriage, in order to avoid transmitting the family taint to another generation. Here we have, in effect, a non-coercive restriction of reproduction. What shall we say of the action of X. in remaining celibate,--is it wise or unwise? To be encouraged or condemned?
It is perhaps the most delicate problem which applied eugenics offers.
It is a peculiarly personal one, and the outsider who advises in such a case is a.s.suming a heavy responsibility, not only in regard to the future welfare of the race, but to the individual happiness of X. We can not accept the sweeping generalization sometimes made that "Strength should marry weakness and weakness marry strength." No more can we hold fast to the ideal, which we believe to be utopian, that "Strength should only marry strength." There are cases where such glittering generalities are futile; where the race and the individual would both be gainers by a marriage which produced children that had the family taint, but either latent or not to a degree serious enough to counteract their value. The individual must decide for himself with especial reference to the trait in question and his other compensating qualities; but he should at least have the benefit of whatever light genetics can offer him, before he makes his decision.
For the sake of a concrete example, let us suppose that a man, in whose ancestry tuberculosis has appeared for several generations, is contemplating marriage. The first thing to be remembered is that if he marries a woman with a similar family history, their children will have a double inheritance of the taint, and are almost certain to be affected unless living in an especially favorable region. It would _in most cases_ be best that no children result from such a marriage.
On the other hand, the man may marry a woman in whose family consumption is unknown. The chance of their children being tuberculous will not be great; nevertheless the taint, the diathesis, will be pa.s.sed on just the same, although concealed, possibly to appear at some future time. Such a marriage is in some ways more dangerous to the race, in the long run, than that of "weakness with weakness." Yet society at present certainly has no safe grounds for interference, if such a marriage is made. If the two persons come of superior stock, it seems _probable_ that the gain will outweigh the loss. In any event, it is at least to be expected that both man and woman would have a deliberate consciousness of what they are doing, and that no person with any honor would enter into a marriage, concealing a defect in his or her ancestry. Love is usually blind enough to overlook such a thing, but if it chooses not to, it ought not to be blindfolded.
In short, the mating of strength with strength is certainly the ideal which society should have and which every individual should have. But human heredity is so mixed that this ideal is not always practicable; and if any two persons wish to abandon it, society is hardly justified in interfering, unless the case be so gross as those which we were discussing in the first part of this chapter. Progress in this direction is to be expected mainly from the enlightened action of the individual.
Much more progress in the study of heredity must be made before advice on marriage matings can be given in any except fairly obvious cases. The most that can now be done is to urge that a full knowledge of the family history of an intended life partner be sought, to encourage the discreet inquiries and subtle guidance of parents, and to appeal to the eugenic conscience of a young man or woman. In case of doubt the advice of a competent biologist should be taken. There is a real danger that high-minded people may allow some minor physical defect to outweigh a greater mental excellence.
There remains one other non-coercive method of influencing the distribution of marriage, which deserves consideration in this connection.
We have said that society can not well put many restrictions on marriage at the present time. We urge by every means at our command that marriage be looked upon more seriously, that it be undertaken with more deliberation and consideration. We consider it a crime for people to marry, without knowing each other"s family histories. But in spite of all this, ill-a.s.sorted, dysgenic marriages will still be made. When such a marriage is later demonstrated to have been a mistake, not only from an individual, but also from a eugenic point of view, society should be ready to dissolve the union. Divorce is far preferable to mere separation, since the unoffending party should not be denied the privilege of remarriage, as the race in most cases needs his or her contribution to the next generation. In extreme cases, it would be proper for society to take adequate steps to insure that the dysgenic party could neither remarry nor have offspring outside marriage. The time-honored justifiable grounds for divorce,--adultery, sterility, impotence, venereal infection, desertion, non-support, habitual cruelty,--appear to us to be no more worthy of legal recognition than the more purely dysgenic grounds of chronic inebriety, feeble-mindedness, epilepsy, insanity or any other serious inheritable physical, mental or moral defect.
This view of the eugenic value of divorce should not be construed as a plea for the admission of mutual consent as a ground for divorce. It is desirable, however, to realize that mismating is the real evil. Divorce in such cases is merely a cure for an improper condition. Social condemnation should stigmatize the wrong of mismating, not the undoing of such a wrong.
Restrictions on age at marriage are almost universal. The object is to prevent too early marriages. The objections which are commonly urged against early marriage (in so far as they bear upon eugenics) are the following: