Should the state permit us to be younger and treat us accordingly in health care?

By Kasper Lippert-Rasmussen and Thomas Søbirk Petersen.

In some states, citizens can change their officially recognized gender. Why not other identities as well? Why not age, for instance? In December 2018, 69-year-old Dutchman and former politician Emile Ratelband lost his court battle to have his legal age reduced by 20 years. In presenting his case to the court, Ratelband argued that his identity was that of a younger person – something the courts eventually conceded. Moreover, doctors had informed him that he had the body of someone in their 40s. Finally, he thought that he was subjected to age discrimination on the job and housing market as well as in his love life and that lowering his legal age would reduce the degree to which this was the case. ‘When I’m on Tinder and it says I’m 69, I don’t get an answer. When I’m 49, with the face I have, I will be in a luxurious position’, Ratelband reported after having filed his lawsuit.

In an excellent 2019 JME article, Joona Räsänen uses the case of Ratelband to discuss a more general question. Suppose someone is subjected to age discrimination and that reducing his or her legal age would mitigate or reduce this discrimination. Should this person be allowed to do so? Basically, Räsänen thinks the answer to this question is yes. More precisely, he judiciously defends the claim that people whose biological and emotional age do not match their chronological age – such as Ratelband – should be allowed to change their legal age in order to secure relief from discrimination where this will not have excessively bad consequences, which, so Räsänen believes, as a general matter it will not.

We are sympathetic to much of Räsänen’s reasoning. However, in our recent reply to Räsänen, we argue that when it comes to the distribution of scare healthcare resources, it would in fact have excessively bad consequences. Provided the state distributes health care resources partly on the basis of age, it would be unjust to let people change their age.

Consider a situation where a number of scarce vital organs must be distributed by a public healthcare system. All potential recipients have the legal age of 50. However, some have the chronological age of 70, while others have the chronological age of 40. (All of them had their legal age changed by the state.) Suppose that all potential organ recipients will enjoy an extra 10 good life years if they receive an organ. We believe that the state should decide who should receive the organs partly on the basis of chronological, and not legal, age (assuming the latter deviates from the former). Potential recipients at the chronological age of 70 have enjoyed 30 more good life years than potential recipients at the chronological age of 40, and that is a strong reason to give priority to the latter patients, who, even if they receive an organ, will not be able to enjoy as many good life years as potential recipients whose chronological age is 70. We find this view intuitively plausible. But it is also a view that is implied by a number of plausible accounts of justice in health, e.g., egalitarian and prioritarian views, as well as the sufficientarian view that everyone should have a ‘fair inning’, say, 60 good life years.

Some might challenge our view on the grounds that even chronological age is just a proxy for the goodness of one’s life as a whole, or on the ground that people such as Ratelband, who identify themselves as much younger than they are, probably experience various problems not experienced by people who identify with their chronological age, and that this warrants a special concern for them.

In response to the first challenge, we concede that even on our view chronological age is just a proxy, but we think that, for pragmatic reasons, using it is unavoidable. It would be extremely difficult, expensive and, to most people’s tastes, excessively intrusive for healthcare authorities to determine the good of individual patients’ whole lives. In response to the second challenge, we accept its content but think it does not show what it is supposed to show because of a countervailing concern. That concern is that people who identify themselves as much younger than their chronological age are likely to enjoy benefits such as, like Ratelband, having the body of a 40-year-old at the age of 69. Things might be different with people who identify as older than they are.

In sum, we agree with Räsänen that, probably and in some cases, the state should allow people to change their age and treat citizens accordingly. However, in a healthcare setting (and probably others), there are strong reasons of justice against age change.


Paper title: Age change, official age and fairness in health

Authors: Kasper Lippert-Rasmussen and Thomas Søbirk Petersen

Affiliations: University of Aarhus, Denmark (KLR), and Roskilde University, Denmark (TSP)

Competing interests: None declared

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