By Ezio Di Nucci

Steven J. Firth and Ivars Neiders (thanks! our little debate is ‘fun’ and, as you say, extremely important) have responded to my defense of the sexual rights puzzle according to which ‘universal positive sexual rights are incompatible with universal negative sexual rights’ by arguing that:

• There is a difference between ‘positive rights to the funding of sexual services’ and ‘positive rights to the provision of sexual services’ (emphasis in the original); and that
• Positive sexual rights do not result in any positive sexual duties for specific individuals or healthcare professionals.

The first claim is, I reckon, meant to defuse the sexual rights puzzle accordingly: the puzzle might arise with positive rights to the provision of sexual services but it does not arise with positive rights to the funding of sexual services.

The second claim is, on the other hand, meant to reassure that nobody will be coerced to provide sexual services even within a system that recognizes positive sexual rights.

Before I engage with the above claims, let me again state that I am very sympathetic to the whole enterprise and look forward to read the authors’ upcoming work on this.

Now the two claims: first of all, there is tension between (1) and (2), at least in so far as they are supposed to deal with my sexual rights puzzle. This is because if (2) is true and positive sexual rights do not result in the monstrosity of positive sexual duties, then (1) is superfluous.

Still, it could be that (2) is in fact implicitly referring to positive rights to the funding of sexual services rather than to positive rights to the provision of sexual services; and that additionally the authors concede that positive rights to the provision of sexual services would indeed result in positive sexual duties and that only by defining positive sexual rights in terms of funding rather than provision does (2) turn out to be true (even though we will see below that this doesn’t seem to be the way Firth and Neiders are going).

This coherence worry put aside, let us look at the merit of (1) and (2) taken separately. What is the difference between a positive right to the ‘funding of x’ and a positive right to the ‘provision of x’? Supposedly at least the following: a right to the funding of x does not imply a right to the provision of x. And here the authors are then relying on a further empirical premise according to which there happens to be enough availability of provision so that we can be satisfied with the funding alone, because no one’s needs would be left unsatisfied – given this empirical premise – if funding is guaranteed.

By distinguishing between funding and provision, though, the authors do not only allow for the possibility of funding without provision, they also allow for its legitimacy (at least from the point of view of positive rights). But if the sexual needs of disabled persons and persons with neurodegenerative diseases are as important as we all agree (at least within this debate) that they are, I am not sure I would be satisfied with the money alone. In fact, if money is all we are going to get, then I am not sure there is any improvement on my original proposal from a decade ago now. Worse, it could be plausibly argued that the commercialization of such a morally important need is actually worse than my old no-profit proposal.

So far I have argued against the distinction between funding and provision in general, but I want to also briefly comment on whether the distinction defuses the puzzle: the puzzle is defused as long as the content of the relevant right does not result in a positive sexual duty; and I guess the distinction between funding and provision is supposed to result in the healthcare system having a duty to provide funding for sexual services without thereby having a duty to actually provide sexual services. So really the only way in which the puzzle is defused is by no longer guaranteeing that the relevant sexual needs are satisfied. But that, the other side will agree, is too high a price to pay.

Finally, what about the second claim? If ‘positive sexual rights’ in the second claim refers to funding alone without provision, then see above – we would have made no progress in guaranteeing the satisfaction of the relevant needs. If ‘positive sexual rights’ in the second claim does on the other hand refer to provision, then the idea could be that the puzzle is resisted in virtue of the fact that the healthcare system’s positive duty to provide sexual services does not result in any positive sexual duties for specific healthcare professionals.

Here again I see no progress: either the reason why the duty to provision does not result in any specific sexual duties is because any particular healthcare professional can appeal to conscientious objection considerations, but then the relevant sexual duty would fall on some other healthcare professional; or the reason why the duty to provision does not result in any specific sexual duties is that those duties were already implied by the relevant professional code – as Firth and Neiders suggest in their latest contribution; but then they would have conceded that their position does imply the monstrosity of positive sexual duties.

In conclusion, let’s agree at least on the following: the sexual needs of disabled persons ought to be a moral priority; efforts to satisfy those needs should be integrated as much as possible within any civilized healthcare system; and this ought to be implemented while at the same time paying particular attention to the vulnerability of disabled persons and also without compromising the sexual autonomy of service providers. Whether the implementation of such a system requires positive sexual rights – and whether positive sexual rights are themselves morally dubious – we still disagree upon.

Author: Ezio Di Nucci

Affiliation: Professor of Bioethics and Director of the Centre for Medical Science and Technology Studies at the University of Copenhagen.

Competing interests: None declared.