There is a consensus among researchers that the US health system is inadequate when it comes to ensuring the health of older adults. Indeed, while many Americans live longer today than several decades ago, they often live those “extra” years in poor health.Footnote ¹ In fact, Americans are generally less healthy than their counterparts in other high-income nations. For example, they are more likely to experience multiple chronic conditions and have far higher rates of obesity. And this is especially true for certain populations, most notably racial minorities and low-income individuals, who still suffer from structural racism and intergroup disparities in health.Footnote ² This is ironic given that the US spends 4.3 trillion dollars a year on health care, much more than peer countries that enjoy far better health-related outcomes.Footnote ³

In this chapter, we provide some insights into this conundrum, which has become acute due to the aging of the American population. Divided into three sections, this chapter will focus on offering structural interventions and their attendant benefits. Section 13.1 identifies the main goal of a successful health system in the twenty-first century – creating optimal health for a longer life – and the primary conditions needed for accomplishing this goal. These include a public health approach that zeroes in on ex-ante prevention, not just ex-post treatment, and an expanded geriatric healthcare workforce to meet the demands of an aging population. Section 13.2 considers the question of how to finance health care for the older population given the challenges posed by the rise in life expectancy. Section 13.3 imagines the unique opportunities – the so-called third demographic dividend – that may arise if Americans could live long, healthy lives.

13.I The Goal: Optimal Health for a Longer Life

One important goal of a successful healthcare system in the twenty-first century is to prolong health span – the average length of healthy lifeFootnote ⁴ – so that people will be able to live meaningful and purposeful lives well into their nineties and beyond. Achieving this goal is no doubt a difficult task, but it is possible.Footnote ⁵ It requires taking a wide array of measures across several healthcare dimensions, such as physician compensation, insurance, and health professionals’ training, as well as focusing on broader issues, including revising the public health system, nutrition, and affordable housing. Space does not permit a comprehensive analysis of all of the steps required to accomplish this goal. Instead, this chapter focuses on two exigent issues: (1) the particular importance, in the context of health span, of investing in public health systems; and (2) reshaping geriatric care. We discuss each of these issues in turn.

13.2 Financing a Twenty-First-Century Elder-Care System

The question of how to finance health care for the older population is particularly challenging given the demographic trend that is the focus of this volume, as well as the sociopolitical situation surrounding the US healthcare system’s funding. For example, Medicare is facing “significant financing issues.”Footnote ⁴⁶ According to 2023 federal reports, the annual cost of Medicare is projected to increase from 3.9 percent of GDP in 2023 to 6 percent of GDP by 2045. As a result, Medicare’s Hospital Insurance trust fund – which covers inpatient hospital care and posthospitalization care in rehabilitation or nursing facilities – is projected to become depleted as early as 2031. The main reason, of course, has to do with the aging population, which increases the number of beneficiaries and consequently the costs of insurance coverage. Existing proposals to solve this problem include increasing Medicare tax rates, introducing changes into Medicare’s funding mechanisms, and increasing the program’s enrollment age.

So, what can be done to tackle the financing issue? Let us begin by noting that adopting some of the proposals described in Section 13.1 might actually save money for the US health system. In an ideal world, that money, in turn, could be used to finance additional services and programs aimed at prolonging Americans’ health span. The problem is that federal spending is often siloed; money saved in Medicare isn’t given to the CDC for public health infrastructure investment, for example. And the way federal budget scoring occurs, long-term investments in public health are often scored as deficits on the books, if the expected benefits occur outside a ten-year budget window.Footnote ⁴⁷

Nevertheless, there is robust evidence that increasing public health investments is likely to reduce healthcare costs associated with treating disease and injury by advancing prevention at the population level. One study, for example, estimated that ex-ante interventions aimed at preventing obesity, diabetes, and hypertension would accrue considerable health-related benefits at reduced costs compared to the costs associated with ex-post clinical treatment.Footnote ⁴⁸ In fact, the decrease in cardiovascular disease and other causes of ill health reduces healthcare costs, with a fourteenfold return on investment.Footnote ⁴⁹ However, America’s health has been worsening,Footnote ⁵⁰ with rising infant and maternal mortality, obesity, diabetes, homicides and suicides, loneliness, worsening mental health, and drug addiction. In combination, these contribute to rising healthcare costs.

There is also evidence that providing care in homes and community-based settings is not more expensive – and may even be cheaper per individual – than institutional settings and nursing homes. One study examined data pertaining to the expansion of home- and community-based services in Ohio over a twenty-year period and found that the expansion did not result in a significant increase in expenditures.Footnote ⁵¹ Another study, which analyzed data from the vast majority of US jurisdictions, estimated that the provision of home- and community-based services actually saved money in comparison to the costs associated with the provision of care in nursing facilities.Footnote ⁵² All of this is to say that the US healthcare system can do more to improve older adults’ health with the money already spent on health-related measures.

But even if creating a health system with well-balanced investments in public health and medical care would entail an additional investment of public funds, such an investment is essential. An aging population that is unhealthy in large part will bring new financial stresses, not to mention increasing stress on family caregivers. In 1965, when Medicare was enacted, President Lyndon Johnson declared that older Americans would no longer “be denied the healing miracle of modern medicine.”Footnote ⁵³ He referred to Medicare protection as “the hand of justice” that is offered to older adults who themselves had given “a lifetime of service and wisdom and labor to the progress” of the US.Footnote ⁵⁴ As these statements make clear, federal legislation concerning healthcare funding for the elderly has been inextricably linked to norms about caring for older adults.

Long-term care is one of the areas where investment of public funds is most needed. Although the Community Living Assistance Services and Supports Act (CLASS) established a social insurance program aimed at addressing this issue, the program has never been activated because of its sole reliance on participants’ premiums (with no additional tax dollars), which was insufficient to ensure solvency. Given the limited coverage offered by Medicaid and Medicare, as described earlier, and the fact that the vast majority of Americans do not have private insurance coverage for long-term care, it is imperative to increase funding for such care – either under Medicaid or a potential universal social insurance policy – to allow Americans to receive care in the setting they prefer and to relieve some of the burden on older adults’ caregivers.Footnote ⁵⁵

Indeed, the failure to ensure adequate funding for long-term care has been detrimental not only to the older adults who need such care but also to their formal and informal caregivers. With respect to formal caregivers, federal labor laws in the US have historically provided insufficient wage and work-hour protections to direct-care workers who provide older adults with clinical services, emotional support, and assistance with bathing, dressing, and other everyday activities. This state of affairs has resulted, at least in part, from concerns that improving labor standards for such workers would increase the costs of long-term care and ultimately force older adults to receive fewer services.Footnote ⁵⁶ While some progress has been made in this regard (most notably by extending Fair Labor Standards Act protections to home-care workers in 2013), many home-care workers – who are disproportionally women and people of color – are still underpaid and often unable to gain overtime payments.Footnote ⁵⁷ Moreover, poor working conditions for direct-care workers may lead to high turnover rates and low motivation among these workers, which run counter to the interests of older adults themselves.

The lack of a social insurance policy for long-term care also affects informal caregivers, who are disproportionately women and often have to reduce their own household or workforce productivity to care for elderly family members. In fact, family members and friends frequently have no choice but to fill the caregiving vacuum, resulting in tremendous monetary and emotional costs.Footnote ⁵⁸ As Professor Allison Hoffman has demonstrated, these costs are currently not accounted for under existing policies.Footnote ⁵⁹ And taking them into consideration, Hoffman notes, helpfully “redefines the scale of the problem of long-term care.”Footnote ⁶⁰ Addressing the problem will require a multidimensional solution, but one thing seems clear: Part of the solution should involve increased state and federal funding. As the final section will illustrate, investing in the health of older adults may actually have unexpected benefits for society at large.

13.3 Imagining Healthy Longevity: Unleashing a Third Demographic Dividend

Our contention is that the measures proposed in this chapter to improve Americans’ health span could unleash a “third demographic dividend” whereby society reaps the benefits – both economic and noneconomic – of having a healthy and engaged older population.Footnote ⁶¹

According to the conventional narrative, a first demographic dividend occurs when children survive and age into employability.Footnote ⁶² A second demographic dividend results from labor supply then exceeding the share of the population that is below working age. As a result of this shift in labor supply, society experiences an increase in production and benefits from a stronger workforce, strengthening the economy and investments that further increase longevity. As people live longer, they are more likely to save money and prepare for retirement. With more productivity and national wealth, increased life expectancy creates opportunities and incentives to invest in education and human capital.

Longevity, however, has more to offer US society. If we develop the proper public health, social, and legal infrastructure, our society can extend health span and enable older adults’ social capital to confer generative impact through more paid employment, national or local service, volunteering, and social and political activism. This, in turn, could give rise to a third demographic dividend in which society can thrive due to both healthy longevity and transformations to a society that enables the opportunities of our longer lives to support all ages flourishing.Footnote ⁶³

To have a sense of what such a society might look like, consider the education arena. As students in the US try to fill the educational gaps that resulted from the COVID-19 pandemic, the American education system could benefit from older volunteers assisting students in various academic and social tasks. Such a mentoring and tutoring program – the “Experience Corps” – is already operating in twenty cities across the country, connecting senior adults with students in public elementary schools who need assistance in reading and other aspects of academic performance. The senior volunteers benefit not only from the human interaction and generative impact that the program facilitatesFootnote ⁶⁴ but also from improved cognition, mental health, and physical strength.Footnote ⁶⁵ Similar programs can address other social goals. For example, during public health emergencies such as the COVID-19 pandemic, older adults could take on community roles aimed at supporting their neighbors, sharing advice, and building resilience. As a different kind of example, many retired health professionals were called back into service to fill work shortages during the pandemic.Footnote ⁶⁶ Here again, such programs would not only contribute to the public’s health but also reduce older adults’ loneliness and promote their self-esteem and sense of belonging.

Other examples pertain to the potential contribution of older adults to labor and consumer markets. Many of today’s jobs do not entail physically strenuous work and could be fulfilled by older adults. Requiring employers to provide reasonable accommodations for aging workers regardless of disability status may allow more older adults to retain their jobs.Footnote ⁶⁷ Further, employers are increasingly recognizing that intergenerational teams are more proactive and innovative. They are developing flexible approaches to retirement and time commitments, which ultimately benefit adults of all ages. To incentivize employers to hire older adult workers, Fried and her colleagues suggest using subsidies that would help to reduce employers’ costs associated with employing older adults, for example, by ensuring that Medicare would serve as a primary payer for health insurance for such employees.Footnote ⁶⁸ Another way to increase work opportunities among older adults is retraining programs that allow people to develop new expertise and careers.Footnote ⁶⁹

As people live and work longer, more age-friendly products will be needed to fit their needs. That, in turn, is likely to give rise to the involvement of older adults in the development and design processes of such products. A new market that relies upon the contribution of older adults as expert designers and customers may emerge – and with it, expanded jobs for all ages.

To be sure, healthy longevity alone is not sufficient for creating a society in which older adults are active participants in every aspect of social life; we also need to find the ways to counteract ageism and establish the social institutions that would allow such participation. But ensuring the health of older adults – through public health investments and a healthcare system better prepared for this specific and growing population – is necessary for unleashing the third demographic dividend. Indeed, research suggests that one of the major factors hindering the emergence of large-scale programs, such as the Experience Corps, is older adults’ chronic conditions and disability.Footnote ⁷⁰ Thus, if we want to enable the unique and valuable social capital of older adults in an aging population, we first need to make sure they have the conditions to stay healthy.

13.4 Conclusion

This chapter has explored some ways in which the US health system has to change to accommodate the 100-year-old American. It identifies the creation of optimal health for a longer life as the health system’s primary goal, and points to two primary avenues to achieve this goal: (1) investing in a public health system that can increase health span for the whole population and (2) improving geriatric care and health systems. As for the first avenue, we argue that implementing population-based preventive measures under the auspices of the public health system could reduce chromic conditions among older adults and lead to better health outcomes in the long term. As for the second avenue, we argue that the provision of high-quality and age-friendly care requires a more robust and well-trained geriatric workforce, focusing on providing a coordinated continuum of geriatrically informed systems of care and using emerging technologies to make health care more accessible for everyone. Further, enabling engagement that older adults seek will improve health in aging while supporting societal flourishing.

As this chapter has shown, the sharp increase in the share of older adults in the US population poses significant challenges for the American healthcare system. This is particularly true with respect to funding, the subject of the chapter’s second section. We argue that even though there are no easy solutions for the financing dilemma, some of our reform proposals could actually save money in the long term.

Ultimately, the constant increase in life expectancy not only poses challenges but also creates unique opportunities: If we find the ways to incorporate health into older adults’ so-called extra years, older adults will be able to use their experience and expertise to contribute to society by engaging in work, volunteering, leadership, and advocacy activities. Perceived this way, longevity can have ripple effects that have the potential to create a long-lived society in which all ages can thrive.

The 100-Year Life explores the opportunities longer life will provide, assuming individuals have sufficient financial resources to fund their longer lives. Many people save too little for their retirement, but the federal government’s two largest social insurance programs – Social Security and Medicare – keep millions of seniors out of poverty. The Social Security old-age benefit partially replaces lost wages, using a statutory retirement age as a proxy for being unable to work.Footnote ¹ The federal Medicare program provides health insurance at subsidized rates to beneficiaries based on age, starting at age sixty-five.Footnote ² In addition, the federal government provides grants to states for state-run Medicaid programs, which provide health insurance to impoverished Medicaid-eligible persons, including seniors.

This chapter addresses a frequently overlooked retirement expense – the cost of nonmedical custodial care. Most individuals aged sixty-five or older will require custodial care – Long-Term Care (LTC), also known as Long-Term Services and Supports (LTSS). LTC includes assistance with activities of daily living (ADLs), such as eating, bathing, dressing, getting in and out of a chair, walking, toileting, and continence; and instrumental activities of daily living (IADLs), such as grocery shopping, banking, bill paying, and filling prescriptions.

Most LTC is unpaid family care because most seniors and their families cannot afford the cost of paid LTC. Paid LTC is very expensive. For example, in 2021, the average annual cost of a year of LTC was:

• $108,408 for a nursing home private room;

• $94,896 for a nursing home semi-private room;

• $54,000 for a one-bedroom apartment in an assisted living facility; and

• $59,484 for forty-four hours per week of LTC in the senior’s home.Footnote ³

Medicare generally does not cover LTC, although many people assume it does.Footnote ⁴ State-run Medicaid programs provide significant LTC funding – but only to Medicaid-eligible persons with low income and almost no savings. Access to paid LTC currently is a patchwork crazy-quilt of public (federal, state, and local) and private funding mechanisms.

This chapter first explores the implications – for current and future seniors and their caregivers – of increased longevity and other trends on unpaid family LTC and on publicly funded and privately funded paid LTC. Second, this chapter surveys alternative means of accessing and funding LTC. Third, this chapter notes LTC trends, innovations, legal developments, and proposals that might improve the LTC outlook for seniors and their families.

14.1 Unpaid Family LTC

Ninety percent of seniors who need LTC receive unpaid care from members of their “family,” defined broadly.Footnote ⁵ Two-thirds rely exclusively on unpaid family care, and another quarter combine unpaid family care and paid care. In 2021, for example, 38 million family caregivers provided 36 billion hours of unpaid care.Footnote ⁶ The aggregate economic value of unpaid family LTC is enormous, both in absolute terms – about $600 billion in 2021 – and in relative terms – about 20 percent of US healthcare costs.Footnote ⁷

Family members often share caregiving duties. Spouses and adult children – generally daughters – provide most unpaid care. Spouses usually provide more hours of care per month than other types of caregivers. Women provide over 60 percent of unpaid care, although men provide more unpaid care today than in the past. Unpaid female caregivers average eighty-one hours per month of caregiving, while unpaid male caregivers average sixty-five hours per month. Seniors who require LTC often have unmet LTC needs if their caregivers’ availability to provide care is limited.

Multiple demographic trends may impact the future availability of unpaid family caregivers. The overwhelming majority of female caregivers under age sixty-five also work for pay, and the percentage of women who work outside the home is projected to increase. Also, women are projected to work to older ages in the future. Increasing participation in paid work may reduce the availability of family members for unpaid caregiving. Potentially offsetting these trends, remote work and improved technology might increase the availability of family members for unpaid caregiving.

Women also have increased their educational attainment and delayed having children, which may limit the scheduling flexibility of “sandwich-generation” caregivers (30 percent of family caregivers) to care for both their children and their parents. Also, fertility rates in the US have declined and the large Baby Boomer cohort is aging. By 2035, seniors aged sixty-five and older will outnumber youths aged eighteen and younger in the US for the first time. The caregiver support ratio, which compares adults in the prime caregiving age group (45–64) to seniors in the age group most likely to require LTC (eighty and over), will shrink going forward.Footnote ⁸

Rates of “gray” divorce have increased, although divorced seniors often find new partners. Among seniors aged seventy-five and older, two-thirds of men have a spouse or partner, compared to just one-third of women.Footnote ⁹ Unmarried seniors, especially unmarried white women, increasingly live alone. The number of “elder orphans” (seniors with no support network) is projected to increase in the future.

Family members are becoming caregivers at younger ages. About one-third of adults aged forty and younger and one-quarter of Millennials already provide unpaid care to family members.Footnote ¹⁰

Older Americans and their unpaid family caregivers will be more diverse in the future. Cultural differences in attitudes toward family responsibility and the care of seniors will create divergent patterns of unpaid and paid care. Some cultures have norms of providing unpaid care to seniors in the community. In such cultures, several generations of a family often live together, with younger generations sharing the care of elderly members of the family in the multigenerational home. Other cultures have norms of minimizing the burdens older generations impose on their adult children. Seniors from such cultures are more likely to seek out paid LTC.Footnote ¹¹

Seniors of color, in particular Black seniors, are more likely to require LTC – and to require it at an earlier age – than white seniors. Appalling, persistent racial and socioeconomic health disparities, which are evident throughout the lifespan, increase and accelerate disadvantaged seniors’ need for LTC. Myriad environmental stressors (e.g., pollution, lead paint, food insecurity) and poverty contribute to such disparities. In addition, research over the past two decades establishes that pervasive, lifelong exposure to social and structural oppression and racism cause premature biological aging – weathering – of Black people regardless of their income or wealth.Footnote ¹² Compared to white seniors, Black seniors are more likely to be disabled, to reside in a nursing home, and to receive substandard care.

Both rates of poverty and the likelihood a senior will need paid LTC increase with age. The need for LTC is highest in the eighty-and-older senior cohort, the fastest growing segment of seniors. Poverty rates for elderly women exceed that for elderly men. In the future, as longevity increases, more seniors are likely to require paid LTC and to qualify for Medicaid-funded LTC.

The potential negative effects of caregiving on family caregivers – in particular women – who provide unpaid LTC are underappreciated. Unpaid family caregiving entails significant – albeit hidden – costs. To provide care at home, family caregivers with paying jobs often must reduce their work hours and effort, or exit the paid labor market entirely, reducing employer-provided health insurance coverage and retirement plan contributions. These hidden costs “help explain the much higher poverty rates for older women relative to men.”Footnote ¹³

Family caregivers often incur substantial out-of-pocket costs to care for their family members. In 2016, the average annual out-of-pocket expenses for a family caregiver were $7,000 overall and 27 percent of the income of Millennial caregivers.Footnote ¹⁴ Family members who must pay these costs reduce their own income and retirement savings.

Family caregivers often experience stress and anxiety, especially when a dependent family member’s health deteriorates, and care becomes more complex. Seniors with multiple chronic medical conditions or with Alzheimer’s disease or related dementias (ADRD) require the most intensive caregiving. Over time, the stresses of caregiving can negatively impact the health of the caregiver. In addition, healthcare providers increasingly delegate to family members medical tasks that go beyond IADLs and ADLs, such as wound care and operating medical equipment (e.g., dialysis equipment).Footnote ¹⁵ Many caregivers are uncomfortable performing such tasks, yet perform them because no one else is available to help. Also, family caregivers generally receive little guidance about how to provide care. The need to complete frustrating administrative tasks, such as insurance paperwork, often adds to caregivers’ stress and anxiety. When seniors’ care needs exceed family caregivers’ capabilities, paid LTC becomes a necessity.

14.2 Paid LTC

Many Americans incorrectly assume that Medicare covers the cost of paid LTC for seniors. Medicare covers “medical” treatment – narrowly and clinically defined – but generally does not cover LTC. Nor does the federal government provide any other universal LTC benefit. State-run Medicaid programs (jointly funded by the federal government and states) provide LTC to seniors living in poverty. Strict legal rules, which vary from state to state, limit Medicaid eligibility to individuals with little income and very little wealth – in many states, not more than $2,000 of assets.

If a senior has too much wealth to qualify for Medicaid, but not enough to fund LTC, the senior must spend down her assets to qualify for Medicaid. The low asset threshold for Medicaid eligibility yokes the beneficial receipt of Medicaid-funded LTC to unintended financial risks created by Medicaid-mandated impoverishment. Notwithstanding the strict Medicaid eligibility requirements, Medicaid pays a significant percentage of aggregate US LTC costs.

The likelihood that a senior will enroll in Medicaid increases with the length of time the person requires paid LTC. The lower a senior’s lifetime earnings, the sooner they are likely to enroll in Medicaid. By the fifth year of requiring paid LTC, the vast majority of seniors – including the top 20 percent of all income earners – are enrolled in Medicaid.Footnote ¹⁶ The duration of needing LTC varies. Patients with ADRD often require many years of LTC. About 18 percent of women and 14 percent of all seniors require five or more years of LTC. On average, women need 3.7 years of LTC and men need 2.2 years of LTC. For seniors “with less education, lifetime earnings, and wealth,” both disability and the need for LTC “come earlier and last longer.”Footnote ¹⁷

14.3 Public LTC Social Insurance Developments and Proposals

One of every two babies born today will live until age 100. This chapter is about the immigration-related implications of this remarkable demographic change, which only five decades ago would have seemed inconceivable. Even with medical advances, as our population ages, a larger proportion of the population will be unable to live independently. Immediately the question arises: Who will care for our elderly population? The US will need many more care workers and, overwhelmingly, they will be migrants.

While, in the popular imagination, elder care is typically associated with nursing homes, a report from the Department of Health and Human Services estimates that fewer than 5 percent of seniors reside in institutional settings like nursing homes.Footnote ² The senior population overwhelmingly continues to reside at home. Thus, most care workers will not work in hospitals or nursing homes; rather most care work will be delivered in the home. Much of this home care will not be subsidized by government; the US stands out among rich OECD countries in the relatively paltry sums that it dedicates to long-term care for seniors.Footnote ³ Most home care is paid for by a patchwork of financial sources – very occasionally with state aid, but mostly with funds from seniors themselves, their children, and nonfamilial sources, such as nonprofits and churches.Footnote ⁴

It bears emphasis: Most of this at-home care is unpaid and provided by family members. However, paid home care has been steadily growing. Twenty-five percent of senior citizens need significant assistance with “ADL” (activities of daily living).Footnote ⁵ With over 55 million people who are senior citizens, the percentage of people who now need paid help is already significant and will surely continue to rise. This is also true because of compositional effects; with lower fertility, a larger portion of the population becomes older. Even if eighty becomes the new sixty, that still means a higher percentage of the total population will be frail, and a lower percentage of the population will be available to help them.

We have long understood the implications of the aging population for health care – this is a primary reason that the growth of jobs in the healthcare sector has long outpaced the growth of jobs in the regular economy. Further, the pace of growth for home-care aides is even more extraordinary. One recent report projected that between now and 2026, jobs in home-care settings will grow by 41 percent.Footnote ⁶ Yet, while the pace of growth of jobs remains high, the salaries are modest. Pay for aides is not much higher than the minimum wage in most states.

Trends are already clear. The home-care sector looks a lot like other sectors in which Americans are typically not employed and undocumented migrants dominate. One need only think, for example, of farm work – a field dominated by undocumented labor. This work is difficult, and the pay is low. Moreover, home-care work is particularly well suited to the undocumented population since it is difficult for immigration officials to police work that occurs inside people’s homes.

How has the US typically managed the need for a large and steady group of low-skilled workers? There is a large gap between what immigration institutions purport to do and what actually happens. That is, the stated goal of immigration institutions is twofold. First, these institutions seek to ensure that aliens are screened ex-ante (i.e., preentry) for suitability to particular visa types; and second, that they are sanctioned if they do not abide by the terms of their visas. Thus, if the US is looking for a law-abiding temporary elder-care worker, it would screen for a “short-term” type, with caregiving skills and no criminal record.

With respect to screening and sanctioning, the reality is that this system only works right now for skilled workers. If a visa candidate is a computer scientist with a prospective job in Silicon Valley, the candidate is carefully screened ex-ante or preentry – she must submit her academic credentials, her prospective job, and undergo a detailed background check. It should be noted that the visa type for which the computer scientist is eligible (typically H1B) provides a path first to permanent residency, and later to citizenship. This means that the formal system carefully screens for those with the right qualities to not only do skilled work but also become American citizens. Therefore, the potential sanction is clearly implicit. A skilled person who does not abide by their visa terms potentially forfeits their opportunity for American citizenship. Again, here I am describing the system for skilled workers. For unskilled workers, the outcome, in sharp contrast to the skilled system, involves the de facto permanent residence of 12 million undocumented persons, the overwhelming majority of whom have never been screened or sanctioned.

How did this come to be? Outside of guest worker programs, which are primarily used for seasonal agriculture (H2A) and tourism and other seasonal industries (H2B), there is no equivalent system of comprehensive preentry screening for low-skilled workers. In some countries, such as the anglophone Caribbean Islands, which are the highest source of guest workers on a per-capita basis, the state seeks to reduce unemployment and buttress remittances by sending citizens overseas. Thus, the state works alongside American agricultural and tourism companies to recruit potential low-skilled guest workers to apply for visas. The state then helps these otherwise poorly resourced guest workers to source and submit the required visa application paperwork at the US Embassy.

Thus, if you are a farm worker or tourism worker from Jamaica or Antigua, you may receive help. But as a practical matter, most low-skilled workers who are poor residents of developing countries simply lack the resources to compile the documentation, pay the visa fees, and undergo a screening process. Moreover, many American companies are perfectly willing to hire undocumented persons. Thus, if you are low-skilled and seeking work in the US as a practical matter, your easiest choice is to cross the border without documentation, or to enter on some other sort of easier-to-acquire visa, such as a visitors’ visa (B2), knowing fully well that you will work in violation of the visa’s terms.

Law Professors Eric Posner and Adam Cox explain how this system has evolved. For the low-skilled portion of the population, as a practical matter, rather than screening all persons (as they are required to do in theory on the basis of their obligations under law to screen ex ante), immigration officials have only pursued those who commit non–immigration-related crimes. Thus, in reality, the system as it relates to low-skilled workers is an ex-post system in which undocumented entrants, who later provide evidence of undesirability (through their contact with the criminal justice system), are screened only after their entry, and then deported. For low-skilled workers, the system is currently designed to sidestep ex-ante screening and ex-post sanctioning (unless the low-skilled worker commits a non–immigration-related crime).

Difficulties in negotiating compromises on immigration reform reflects that many Americans are unconvinced that policymakers and immigration enforcement officials can design, and enforce, a credible program in which temporary workers will in fact be temporary.Footnote ⁷ To build broad-based political support for a temporary worker elder-care program, policymakers will have to design a program that in fact screens for workers who are competent caregivers, who are seeking temporary work, and who will keep with the terms of their visas and return to their countries of origin. Recognizing that for decades the political climate has been decidedly restrictionist, political actors have long sidestepped hard questions about how to design a program that will admit large numbers of low-skilled migrants who actually comply with the temporary terms of their visas. This is why the 100-year life matters for immigration. Perhaps the aging of the population and the inevitable need for care workers will force policymakers to confront these questions.

A large population of elderly citizens will likely mean that the US will have a large population of temporary workers who have no reasonable prospect of becoming permanent residents. The influential political philosopher Michael Walzer has warned of the dangers of a long-term population of temporary residents without the rights and responsibilities of citizenship in constitutional democracy. His view is that most (if not all) persons admitted should have a path to permanent residency and citizenship. Many law professors (including myself) share his expansionist sentiments. Yet, as law professors, we also need to confront the reality that most Americans do not share our expansionist inclinations. Whatever our inclinations may be, there is a desperate need for an academic focus on institutional design. Specifically the need to focus on how immigration institutions can do what Americans want them to do – screen for migrants who abide by the rules of their visas and sanction those who do not.

I believe that I have a model for how such immigration institutions may be designed. My own region of origin – the Caribbean – currently supplies many home-care aides in two states with disproportionate representation of seniors, Florida and New York. As a scholar of “low-skilled” migration from the Caribbean, in this chapter I consider questions of immigration institutional design in light of lessons learned from how Caribbean home-care aides currently work and travel. In Section 15.1, I provide details of the lives of these undocumented workers to consider how we might incentivize compliance with immigration rules.

In Section 15.2, I contend that Caribbean workers who are working (ultra vires) while on “visitors’” (B2) visas have already provided a model that institutional design experts might want to replicate. Caribbean home-care aides on visitors’ visas understand that they are not supposed to work. However, since the B2 visa permits a maximum of a six-month stay after entry, they also understand that they are unlikely to be penalized for working as long as they do not stay in the US for longer than six months on any one visit. If they violate this rule, the US is unlikely to renew their visas.

Thus, they have devised a system to comply with the six-month rule – job splitting. This is a pattern whereby home-care aides split their work between two workers, each of whom works for six months per year before turning over the job to a companion care worker for the remaining six months. Thus, each worker is in fact temporary. In any given year, they spend no more than six months in the US, before returning to their country of origin and then coming again the following year. The workers comply with the six-month rule because they feel secure in the knowledge that they will be permitted to come the following year. This pattern typically continues over several years. An upside of job splitting is that it leads to continuity of care, since the elders who they care for have the same two caregivers over several years. This is important; indeed, continuity of care is prioritized in the elder-care literature.

That this system persists not only for “low-skilled” workers who pick tomatoes but also for “low-skilled” workers who care for grandparents speaks volumes about the long-term likelihood of its persistence. But this is unnecessary. In Section 15.3, I argue that most of these workers are in fact “good types,” who could have been favorably screened ex-ante for elder-care visas. I propose that we urgently devise a system that permits temporary entry of elder-care workers. If they are permitted long-term temporary visas in which they can work in the US for a few months per year over several years, they have every incentive to comply.

We must confront the reality of a shadow system of undocumented persons in home care and design a system to replace it. Postponing such questions is no longer sustainable in light of the 100-year life.

15.1 A Model for Elder Care: Lessons from Caribbean Home-Care Aides

In the popular imagination during the pandemic, elder care became synonymous with nursing homes. However, most elderly Americans do not live in nursing homes. Nor do scholars of elder care want them to live in nursing homes. There had been an increasing consensus among scholars that we need to prioritize “aging in place,” that is, noninstitutional solutions to elder care, with an emphasis on keeping the elderly in their homes and communities.Footnote ⁸ The pandemic has reinforced this sentiment. Based on data, over 23 percent of people who died from COVID complications in the US were nursing home residents.Footnote ⁹ The disastrous impact of COVID in institutional settings has underlined the need for more sustainable elder care, particularly in-home elder care. Thus, I begin with a different population, which I believe distinctively illustrates the challenges of redesigning an immigration system to provide sustainable care to an aging population: home-care aides.

I have spent most of my life in a region of the world – the Caribbean – that disproportionately supplies the workers who take care of the American elderly. Although formal data are hard to find (perhaps because so many persons are undocumented), it is inarguable that the Caribbean supplies the majority of home-care aides in at least two regions of the country, namely Florida and New York (the first of which has the second-highest proportion of elderly populations). This chapter is based in part on research into Caribbean migrant workers, many of whom are home-care aides.

Of the migrant workers who have been seriously studied (primarily in agriculture, construction, tourism, and food plants), workers in elder care are undoubtedly the least studied population. Home-care aides are by definition “out of sight.” While this population has been insufficiently studied within the US (perhaps because so many of them live in the homes of their elderly employers and are paid in cash), the same is not true in the Caribbean. The home-care aide population regularly sends money to their countries of origin and, in so doing, provides a steady pool of cash to their families and their countries.

Much information can be ascertained from their remittances, which have become indispensable to the foreign exchange reserves of Caribbean central banks. Their sizable earnings provide a clue to the unique importance of this population – not only to their countries of origin but also to elderly Americans. It is not an exaggeration to say that in-home elder care in both Florida and New York would collapse if Caribbean migrant workers disappeared.

How did home-care workers providing services “under the table” become so important? The oft-told narrative is as follows. A New York or Florida family has a parent or grandparent who is no longer able to live independently. The family visits a few nursing homes and finds either the facilities unattractive or the costs prohibitive, despite having access to Medicare since state coverage of nursing home care is paltry in the US (certainly in comparison to other rich OECD countries). Moreover, for many families, nursing home workers seem overextended, raising concerns as to whether their elderly relative would be properly cared for.

Of course, in-home elder care also has its challenges – for example, the provision of care is governed by a patchy network of licensing and regulations (with some localities having no licensing requirements or regulatory framework at all) – leading to concerns about the quality of care. Naturally, many families prefer in-home care. Moreover, many discover that they can provide care for their grandparent more cheaply through in-home care, particularly when such care is subsidized by state insurance that may provide an in-home care aide for a few hours each week (typically the state will only subsidize those who are home healthcare aides, that is, those who have some basic medical training). However, usually the state will provide only a fraction of the care that the elderly relative needs. Thus, many families supplement their state-subsidized care with lower-cost options; they hire home-care aides who are undocumented and pay them under the table. In the absence of a formal state-supported care infrastructure (such as exists in many other developed countries, including in Western Europe), families create a home-care infrastructure themselves.

In New York and Florida, home-care aides are predominantly Caribbean womenFootnote ¹⁰ who are not licensedFootnote ¹¹ even though families are clearly satisfied with their services as evidenced by their multi-year tenure with the same families. How do these women come to be home-care aides? For a Caribbean woman who is not university educated (and thereby ineligible for most skilled work visas in the US), there are basically three options to work in the US. The first is what we typically think of as agricultural guest work – a yearly sojourn (at least pre-COVID) on an H2A visa to work on a US farm for several months. For most women, unfortunately, agricultural visas are not a practical option; their recipients are overwhelmingly men. The second option is to be a documented guest worker in the tourism or other seasonal sector on an H2B visa. This, for example, might involve working in a hotel in Aspen, Colorado. These guest workers unsurprisingly pay taxes. They also incur other expenses, such as living expenses for staying in staff quarters that are deducted from their salaries by the hotels. From a take-home pay perspective, the most desirable option for many Caribbean women is the third option, namely, undocumented care work. I use the word “undocumented” to mean both those who are either working without any visa whatsoever (the popular understanding of the term “undocumented”) and those who have visas that preclude legal work but who work anyways.

Why is care work so popular? Having spoken to Jamaicans who have done tourism work and home-care work, they will explain that they are better off as undocumented home-care aides than as documented guest workers. The money is steady, their living expenses are often covered since many live in their clients’ homes, and they avoid tax obligations. Nearly every Jamaican knows of some relative or friend working as a home-care aide in the US. (I say this as a native Jamaican, with only slight exaggeration!)

Some of these home-care aides are “undocumented,” in the popular understanding of the term, in that they have typically overstayed their B2 visas (known informally as visitor’s visas). I highlight a few of the terms under which visitor’s visas are typically issued. First, the visa applicant is expected to provide accurate information about her travel intentions and her historical behavior, that is, including her historical record of abiding with the terms of visas. That is, if she is applying for a visitor’s visa, she should really be intending to make a short-term visit. Second, the visa recipient agrees that she will not impose welfare costs on the government. Third, the visa recipient agrees only to visit and not work, as well as to exit the US within the prescribed time period, which for B2 visas is six months after entry. Some Jamaicans who work under the table initially enter on B2 visas that then expire. They then become undocumented in the typical understanding of the term since they no longer have visa documentation.

However, there is a different pool of home-care aides that I would like to highlight for the purposes of this chapter because their work patterns provide important lessons about institutional design. Many Caribbean home-care aides who engage in unauthorized work have come up with unconventional and interesting mechanisms of maintaining their job security. Setting aside the fact that they are working (a clear violation of the terms of their B2 visas), they take pains not to overstay. That is, on every visit, they make sure they stay no more than six months after their initial entry. In so doing, they seek to preserve the possibilities that their visas will be renewed. Thus, the pattern is as follows. Beverly, a hypothetical in-home aide, enters on January 1, Year 1. She leaves on June 30, Year 1. She returns to her country of origin for the rest of the calendar year. In Year 2, she enters on January 1 and leaves on June 30, returning to her country for the rest of the year. And so the pattern continues.

If Beverly is only in the US for six months, is her job surely at risk? Not so. In order to maintain the continuity of her work with elderly clients, she “splits” her job. That is, Beverly is the home-care aide for the first six months. She is then replaced by Janet – a sister, a cousin, or a close friend – who works as the home-care aide for the other six months. I refer to this pattern as job splitting.

15.2 Why Job Splitting Matters

Any competent immigration lawyer would agree that these Jamaican women who work while they are on visitor’s visas are not in fact complying with their visa terms. Yet on further examination, what these women do is in fact quite innovative. What is striking about job splitting is that these women do not “overstay” while simultaneously maintaining their employment for when they return. They have in essence created a type of “de facto” job security. That is, an elder-care worker may only work for six months of the year, but she has done it for the last ten years.

Moreover, for students of the literature on elder care, there is an unanticipated benefit of their efforts to avoid overstaying while maintaining their jobs. Job splitting has the upside of helping to ensure continuity of care for their elderly clients. Continuity of care is a major theme in the elder-care literature. That is, by splitting the job, Janet and Beverley are able to provide elder-care services to one client for ten years. Rather than receiving services from many different home-care aides, the client only receives services from Beverley and Janet.

Researchers have long emphasized that continuity of care matters for patient well-being. Immigration institutional design has clear implications for patient well-being and longevity. Researchers have long emphasized that continuity of care matters for patient well-being, and the COVID pandemic only served to reinforce its importance. Indeed, continuity of care may have life-or-death implications. During the pandemic, elderly persons who were cared for at home by one long-term caregiver were less likely to be exposed to COVID infections, to be hospitalized, or to die than their counterparts in nursing homes. Additionally, one study contends that an elderly person fares better when the worker who takes care of her perceives herself to be the long-term caregiver of that elderly person. Why is this? Persons who believe themselves to be long-term caregivers are more likely to advocate for their clients to receive good health care, or to speak candidly about what they perceive to be in the best interests of their patients.

In support of this theory, I turn to the nursing home context. There appear to be differential outcomes in infection and death rates in those nursing homes with long-term employees with minimal turnover versus those homes where turnover rates are higher.Footnote ¹² Again, one reason for these differential outcomes is obvious. A high-turnover staff is more likely to introduce infection to a nursing home. But there are other reasons. Where staff turnover was lower, staff were more likely to be invested in providing good care to the nursing home residents and to advocate for COVID prevention protocols to protect the residents.

Surely this is relevant to planning for the 100-year-old citizen. As we prepare for a world where centenarians become the norm, I argue that this is the model that the US should try to emulate when addressing questions of institutional design in immigration – creating incentives for migrants who care for the elderly to invest in the longevity of their jobs. Migrants who invest in the longevity of their jobs are typically also invested in the longevity of their patients. If they are secure in the knowledge that their visas will be renewed – provided that they abide by the terms and do not overstay – they will be invested in the well-being and good health of their clients, who they will be likely to serve over several years.

15.3 Designing a System within Restrictionist Political Realities

In a landmark book, Law Professor Hiroshi Motomura calls on Americans to treat lawful immigrants as “Americans in Waiting,” largely entitled to the benefits of citizenship. Motomura is concerned primarily with what the larger goals of immigration should be, given the underlying constitutional and moral commitments of American democracy. His work typifies the expansionist flavor of much immigration law scholarship. Scholars typically focus on admitting more migrants, for longer periods, and with a more robust group of rights. Although I am very sympathetic to these expansionist goals, I believe that they are not realistic in light of current political constraints, given that the dominant immigration sentiments appear to be restrictionist.

What do I mean by restrictionist constraints? Most Americans want fewer immigrants who are long-term permanent residents. Moreover, they are skeptical of temporary migrant programs, believing that guest workers will inevitably overstay and become long-term residents. Although restrictionist policies were promoted most passionately by the Trump administration, it is already clear that restrictionist immigration policies have outlived President Trump. One need only consider what appears to be an emerging bipartisan political backlash to the perceived increase in the numbers of persons applying for asylum at the southern border.Footnote ¹³

A more realistic view of what is possible with restrictionist political realities is articulated by Law Professor Cristina Rodriguez, who quite clearly understands the inevitable trade-off between the number of migrants admitted and the rights they receive upon admission. She termed this trade-off “the admissions-status dynamic.” Responding to Motomura’s challenge to treat more migrants as “citizens-in-waiting,” Rodriguez characterizes the challenge as follows:

Rodriguez’s perspective is relevant to any program aimed at admitting elder-care workers. If Rodriguez is right (as I believe she is), realistic immigration proposals will need to assure Americans that the elder-care workers who are being admitted will not be long-term members of the political community, with entitlements to the benefits that come with this status. The US’s refusal to design an immigration system that includes these assurances is, in part, responsible for the large undocumented population. Any program designed to recruit guest workers specifically to provide elder care needs to clearly establish that these workers are temporary.

The key in my mind is not only to look for ex-ante signals of temporary intent but also to incentivize compliance. If guest workers are assured that they could come for six months, with a near guarantee of visa renewal if they abided by the terms of their visa requirements, they will take compliance seriously.

Other incentives for compliance could also be built in. For example, a portion of their earnings might be held in escrow to be released when they return to their country of origin. However, these other incentives will pale in importance to the primary incentive – namely an assurance of visa renewal if they comply. These guest workers would be not unlike the aforementioned Caribbean home-care aides, who are “self-enforcing” precisely because they feel secure that their visitors’ visas will be renewed as long as they do not stay in the US longer than six months.

Moreover, to ensure continuity of care, one of their visa requirements might be that they provide care services to clients who they have serviced in the past (with a clear exception if the client dies). This would provide an additional incentive to do what the Caribbean home-care aides are already doing. That is, they return to provide care services to their former employers, secure in the knowledge that their jobs will be waiting for them the following year when they return. It is possible to model “de jure” after what Caribbean home-care workers have been doing “de facto.”

We already know that most of these workers are in fact “good types” who would likely have been favorably screened. We know this because of the market – these elder-care workers would hardly have been able to maintain employment with the same family over several years if they were not providing competent care services. Moreover, recall Cox and Posner, finding good visa applicants is primarily an informational problem; a state is seeking to find enough information to ascertain whether a potential entrant matches its type preferences. Notably, the communities of origin for Caribbean elder-care workers are small and tightly knit – if a person has a poor reputation, the word will spread. If someone is an incompetent caregiver, they are unlikely to get referrals or positive recommendations from other care workers (who are always being asked for referrals). Of course, the state cares about matters that families may not care about (e.g., their inclination to comply with their visas), so family approval is not the final word, but it is surely a good sign.

There would of course be other requirements. For example, in conducting visa screening, the US might quite reasonably want to conduct detailed background checks, such as ensuring that the applicant has no history of abuse against the elderly. However, these prospective elder-care workers are not Silicon Valley-bound computer scientists; they cannot present university diplomas or letters from professors and employers in the formal market to serve as testament to their background and character. Yet overcoming the challenges of ex-ante screening in nontraditional populations – whose members may lack access to the resources needed to credibly document their backgrounds – seems particularly possible in the small Caribbean countries from which the elder-care workers that I have described in this chapter originate.

These workers typically originate from small towns and villages – they are known at multiple levels of community life. Indeed, this is precisely how Canada screens its guest workers – relying on Caribbean governments to share information about visa candidates ascertained through cooperation with clubs, churches, and other community organizations. That Spain has been able to implement a similar model in screening guest workers from Morocco – a much larger country with arguably a more challenging risk profile than the Caribbean Islands – is indicative that the utility of this approach of transnational cooperation to augment screening capabilities goes beyond small island countries of origin.

Finally, to maintain certain standards of care, one might also want to institute some sort of licensing regime, in which those who have demonstrated some historical competence in elder care receive a certificate licensing them to provide elder care in the US. If a person has historically been involved in elder care (such as the aforementioned Caribbean women), they should be initially eligible even if they lack formal credentials, while providing them an incentive to pursue additional training to maintain their licenses in the future. Since such licensing is typically provided by the states rather than the federal government, the federal government might simply want to stipulate that visa recipients demonstrate that they have met licensing requirements, to provide an additional incentive for caregivers to become licensed.

15.4 Conclusion

What we will end up with is a large population of people who are in essence guest workers in perpetuity – assured of the right to return if they only stay a few months and leave and return to their country of origin every year. This of course is precisely what the political philosopher Michael Walzer has warned against – the presence of a long-term pool of persons who live in perpetual “guest-workerness,” with no realistic means of participating in the democratic experiment. Would a great constitutional democracy really tolerate the presence of such a population within its borders?

This of course is an important question for any constitutional democracy to grapple with. But it appears to be a question that Americans have already answered – even if some of us find the answer deeply troubling. For example, Americans already tolerate guest workers in perpetuity in their farm work and tourism worker programs – it bears emphasis that a significant proportion of visa recipients in these programs are multi-year repeat participants. And the huge undocumented population is in essence a de facto population of permanent residents with no political voice of their own – they are typically only able to act politically through their allies. Thus, what Americans are prepared to tolerate is perfectly clear; the question of the “justice” of what they perceive to be tolerable is different. I believe the outline of the guest worker program for elder-care workers is practicable within the aforementioned political constraints. As we approach the era of the 100-year life, this provides a clear model for how we might proceed to design a system that provides a robust pipeline of well-screened migrant workers.

The claim by Lynda Gratton and Andrew Scott that “the 100-year life” will become the norm for cohorts born in the Western world today is startling. It also is, contrary to the authors’ characterization, “science fiction.” By “science fiction” I do not mean that it is necessarily wrong – science fiction sometimes proves prescient, as with Jules Verne’s predictions of electric submarines and space travel. But the claim is “science fiction” within the dictionary definition: a “story featur[ing] hypothetical scientific or technological advances.”Footnote ² For Gratton and Scott’s claim to come true, biomedicine will need to make advances against aging that – for now – remain hypothetical.

Imagining a 100-year life requires us to engage not only in science fiction but also in legal and political fiction. I do not mean “legal fiction” in Blackstone’s sense – a fiction that litigants and judges use to rationalize particular jurisdictional results, such as the fiction that defendants before the King’s Bench committed trespass in Middlesex county.Footnote ³ And by “political fiction,” I do not mean that the 100-year life is a House of Cards-style thriller about officeholders in Westminster or Washington. Rather, the journey to a 100-year life will likely require new developments in law and politics that – as with their biomedical counterparts – remain hypothetical. Not only have we failed to achieve the biomedical advances that will allow 100-year lives to become the norm, but we have also failed to build the legal institutions and political coalitions that will foster those biomedical advances. As with Verne’s submarines, today’s fiction may become reality in the not-so-distant future. But the journey to a 100-year life will require creative solutions in the realm of law and public policy, just as it will require ingenuity in the scientific realm.

While other chapters explore the implications of the 100-year life for law and public policy, this chapter explores the role of law and policy in achieving century-long lifespans. Section 16.1 argues that for 100-year lives to become the norm within the time frame that Gratton and Scott envision, we will need to make extraordinary progress in reducing old-age mortality. These advances will need to be qualitatively different from the disease-specific innovations that attract the bulk of biomedical investment today.

Section 16.2 considers the role of law and policy in efforts to delay aging and death. It argues that patent law – the most familiar tool in the innovation policy toolkit – is ill fitted for the goal of achieving century-long lives. Many of the most promising longevity-enhancing innovations fall outside the legal and practical limits of patent protection. Even for new pharmaceutical and biologic products that lie closer to patent law’s core, the long time frame necessary to establish efficacy through clinical trials leaves few years for firms to monetize their innovations. Section 16.2 goes on to consider other legal mechanisms that can potentially sustain longevity-related research and development – specifically the private foundation and the for-profit corporation, which, unlike patents, can have infinite legal lives. Although nonprofit and corporate law have facilitated significant longevity-related investments in recent years, they have done so for reasons that are more idiosyncratic than systematic – and in ways that highlight the potential pitfalls of a private sector-driven quest for 100-year lifespans.

The chapter concludes by considering the political economy of public sector investment in longevity research. To achieve century-long lives, we will likely need governments – in particular, the US federal government – to commit to a moonshot investment in longevity akin to the Apollo project that brought Neil Armstrong and Buzz Aldrin to the lunar surface. But whereas the Apollo project commanded broad bipartisan support, a longevity moonshot is bound to encounter powerful political resistance. That wall of resistance may prove penetrable, but not easily so. Thus the path to a 100-year life will likely require major breakthroughs not only in the laboratory but also in the legislature.

16.1 A 100-Year Life Expectancy Is Still Science Fiction

Understanding the incredible optimism of Gratton and Scott’s predictions requires a brief primer in demographic terminology. Life expectancies are conventionally stated in period mean terms. Life expectancy at birth in a given year reflects the average number of life-years remaining for a newborn if age-specific mortality rates remain at that year’s levels. For example, life expectancy at birth in the US in 2021 was 76.4 years, meaning that if age-specific mortality rates remain at 2021 levels, the average age at death would be 76.4.Footnote ⁴ Most likely, babies born in the US in 2021 will on average live longer than 76.4 years because age-specific death rates will decline from 2021 levels. (The year 2021 was especially bad for period mean life expectancy because it coincided with the COVID-19 pandemic’s peak.) But of course, we don’t know how fast death rates will decline because we can’t see into the future.

Gratton and Scott offer life expectancy estimates in cohort median terms. By their estimates, 50 percent of babies born in the US in 2007 will live to be at least 104, and half of babies born in Japan that year will celebrate their 107th birthdays. Cohort lifespan estimates are in some ways more useful than period life expectancies because cohort estimates, unlike period estimates, apply to identifiable individuals (individuals born in a given country and year). By contrast, period mean life expectancy at birth in a particular year is not an estimate of the mean lifespan of individuals born in that year – it is a calculation of the mean lifespan of individuals born in that year under the unrealistic assumption that all age-specific mortality rates remain at that year’s levels. A downside of using cohort statistics, though, is that we can’t measure the cohort median until half a cohort has died. Barring catastrophe, we won’t know the cohort median lifespan for babies born in the US in 2007 until the late twenty-first or possibly early twenty-second century.

Gratton and Scott draw cohort lifespan projections from a 2009 paper in The Lancet by Kaare Christensen, Gabriele Doblhammer, Roland Rau, and James Vaupel (“CDRV”).Footnote ⁵ CDRV observe that “best practice” period mean life expectancy – the highest period mean life expectancy in any country in any given year – increased almost linearly at an annual rate of 0.25 years from 1840 into the 2000s. (Sweden was the best practice country for much of that period; Hong Kong is now.) CDRV then translate this observation about best practice period mean life expectancy into projections of cohort median life expectancy for eight high-income countries: Canada, Denmark, France, Germany, Italy, Japan, the UK, and the US.

To arrive at these projections, CDRV assume that period mean life expectancy in high-income countries will increase linearly at an annual rate of 0.2 years into the twenty-second century. They also assume that age-specific mortality rates will follow a particular path that generates annual increases of 0.2 years in period mean life expectancy. Mortality rates from age zero to fifty and from 110 on up will remain unchanged from 2006 levels, and mortality rates from age 50 to 110 will decline at a rate of 2.2 percent per year.Footnote ⁶

To recap: When Gratton and Scott say that “a child born in the West today has a more than 50 per cent chance of living to be over 105,” what they really mean is this: If cohort median lifespans in advanced economies grow as fast as CDRV project, then there is a 50 percent probability that a member of a high-income country cohort born in the first or second decade of the twenty-first century will reach age 105.

How plausible are CDRV’s projections? As CDRV note, previous prognosticators have often underestimated future life expectancy growth. As recently as 1990, an article in Science stated that “it seems highly unlikely that life expectancy at birth will exceed the age of 85”Footnote ⁷ – a threshold that Hong Kong surpassed in 2018. But while past projections of life expectancy growth have been unduly pessimistic, the growth rate that CDRV project appears to be extraordinarily optimistic – for at least two reasons.

First, CDRV project that period mean life expectancy in high-income countries will increase at an annual rate of 0.20 years from 2006 onwards, but we already know that – even before COVID-19 – those countries were not keeping up with that pace. The average annual rate of life expectancy growth across the eight countries in CDRV’s study from 2006 through 2019 was 0.15 years, and the rate for the US during that stretch was just 0.09 years. At a 0.15-year annual rate of life expectancy growth from 2006 onwards, none of the eight high-income countries in CDRV’s study would reach century-long life expectancies by 2120. At a rate of 0.09 years, US life expectancy in 2120 will be 88.1 years. For US life expectancy to reach 100 within a century, we will need to pick up the pace substantially.

Second, not only are CDRV’s period mean life expectancy projections quite optimistic relative to recent experience, but their projections for mortality rates are extraordinarily optimistic in light of historical experience. As noted earlier, CDRV project that mortality rates from age 50 to 110 will decline at a rate of 2.2 percent per year from 2006 to 2120. Yet over the entire period of the Human Mortality Database’s coverage from 1933 through 2019, the mortality rate for fifty-year-old Americans has declined at an annual rate of only 1.3 percent, or about three-fifths as fast as CDRV project. And the mortality rate for 100-year-old Americans has declined at an annual rate of 0.2 percent – less than a tenth of the rate that CDRV project going forward.

One might ask: How do CDRV arrive at such optimistic predictions if their model simply projects outwards from pre-2006 life expectancy growth? The primary reason is that CDRV’s model does not account for the different trajectories of mortality rates at different age levels. The US, like other high-income countries, made huge progress in reducing childhood and midlife mortality over the course of the twentieth century, which fueled similarly large gains in period mean life expectancy. In recent years, progress in reducing childhood and midlife mortality has slowed (and midlife mortality rates have actually increased in the US since 2010), but even if those mortality rate reductions picked up pace, they would have a relatively small impact on overall life expectancy. Indeed, even if we eliminated all mortality before age fifty, life expectancy at birth in the US would increase by less than four years. For century-long lifespans to become the norm, the US and other high-income countries will need to make extraordinary improvements in mortality rates at older ages.

Reducing mortality rates at older ages is not necessarily impossible, but it will require interventions different from those that are effective at younger ages. Disease-specific interventions can lead to large reductions in mortality at younger ages because if a younger person does not die of a particular cause (e.g., breast cancer), she is relatively unlikely to die of a competing cause in the near future (e.g., heart disease). By contrast, disease-specific interventions hold less promise for reducing mortality at older ages because if an older person does not die of a particular cause, she remains highly vulnerable to other fatal risks. For example, the Centers for Disease Control and Prevention estimates that a complete cure for Alzheimer’s disease – a top-five cause of death among Americans over age sixty-five – would extend overall US life expectancy by only about seven weeks.Footnote ⁸ To achieve the twenty-year life expectancy increase that CDRV project over a century, we will need to do more than play a game of disease-specific whack-a-mole.

This recognition raises two related questions. The first is whether any intervention – a lifestyle change, a miracle drug, a nonpharmacological therapy, or some other innovation, alone or in combination – can generate the all-cause mortality reductions at older ages that would be needed to realize CDRV’s forecasts. The second is whether, if there is any such intervention out there, countries can identify it and disseminate it to their populations. The former is, at bottom, a bioscientific question that lies beyond this chapter’s scope. The latter is a question of law, economics, and politics – and the question upon which the remainder of this chapter focuses.

16.2 The Limits of Law

16.3 The Political Economy of the 100-Year Life

Each year Congress plows tens of billions of dollars into biomedical research – with $47.5 billion budgeted for the National Institutes of Health (NIH) in fiscal year 2023. Yet only a tiny sliver of that sum – $405 million – goes toward the Division of Aging Biology (DAB), the unit within NIH’s National Institute on Aging that studies interventions that might slow the aging process.Footnote ²⁰ (The bulk of the National Institute on Aging budget goes toward Alzheimer’s disease and related dementias.) To put the DAB figure in perspective, NIH now spends more each year on research related to brain cancer than the DAB’s entire budget, even though brain cancer affects 0.1 percent of the population while aging ultimately affects everyone.Footnote ²¹

In recent years, several scientists and public health advocates have argued for a dramatic increase in federal funding for longevity research – a “longevity moonshot.”Footnote ²² They argue that sustained federal investment – on the order of $3 billion annually – will produce long-lasting health and economic gains that compensate for the cost many times over. As the DAB funding figures illustrate, this argument has yet to win over congressional appropriators. Why not?

A partial answer is that the push for a longevity moonshot defies the logic of collective action. As economist Mancur Olson famously observed, small groups with well-defined memberships enjoy political advantages vis-à-vis larger and more diffuse groups: they are better able to forge common identities and less vulnerable to free-riding.Footnote ²³ The success of rare-disease patient groups in securing federal funding for orphan drug research is arguably an illustration of the Olsonian logic: Relatively small groups of rare-disease patients have large individual stakes in finding a treatment or cure – and often strong group identities borne out of a shared experience. By contrast, individuals experiencing the aging process are the ultimate large group: Everyone is included.

Beyond the large-group problem, proponents of a moonshot investment in delayed aging face a fiscal challenge. Although the $3 billion-per-year outlay proposed by moonshot advocates would have only a trivial effect on the federal government’s fiscal position, the effort would – if successful in lengthening lifespans – lead to a significant increase in the number of people eligible for old-age entitlement programs such as Social Security and Medicare. Some of the corresponding fiscal burden could be offset by additional tax revenues from older workers who remain in the labor force for longer, as well as from a reduction in per-capita Medicare costs among healthier seniors. Yet economist Dana Goldman and coauthors have projected that even with those offsets, an increase in life expectancy of 2.2 years due to delayed aging would add nearly $420 billion to the federal entitlement deficit by 2060.Footnote ²⁴ The life expectancy gains envisioned by CDRV – twenty years over the course of a century – would place an even greater burden on Social Security and Medicare.

Economically the US could very likely bear the additional fiscal weight of an older but healthier population. For example, Goldman and coauthors estimate that raising the Social Security normal retirement age and the Medicare eligibility age to sixty-eight would more than offset the additional entitlement program costs of delayed aging. But as demonstrated by the recent experience in France – where President Emmanuel Macron’s increase in the retirement age from sixty-two to sixty-four sparked nationwide strikes – retirement age changes remain “the third rail” of politics across the high-income world. An alternative way to offset rising entitlement program costs would be to raise taxes, but both major political parties in the US have soured on broad-based tax hikes in recent years. Most Republican lawmakers have pledged not to vote for any net tax increase, while Democratic President Joe Biden has promised not to raise taxes on any household earning less than $400,000 annually – a promise that puts three-quarters of the income tax base beyond reach.

To be sure, the entitlement spending effects of longer lifespans will accrete slowly, with most of the expenditures lying decades down the road. By then, most of today’s elected officials will have long since retired, died, or been ousted by voters. In that respect, political short-termism – unlike corporate short-termism – may be complementary to longer lifespans: Lawmakers can appropriate more funds to a longevity moonshot while externalizing the difficult fiscal choices to their successors.

But even if the extra entitlement spending triggered by longer lifespans won’t come due for decades, government debt markets may transform those future liabilities into near-term costs. As the US proceeds down a fiscally unsustainable path, investors are likely to demand higher interest rates on Treasury bonds. For that reason, today’s lawmakers may be reluctant to commit to a longevity moonshot that – without unpopular entitlement reforms or tax hikes – will force the federal government to face higher near-term debt service expenses.

This is where the science fiction and the political fiction of the 100-year life converge. The Olsonian logic of collective action is not an iron law: Advocates for programs with diffuse benefits sometimes prevail in the hurly burly of distributional politics. But to do so, proponents of a longevity moonshot will need to weave a narrative that motivates legislators to allocate funds toward longevity research. In other words, the biomedical advances needed to normalize century-long lifespans will likely depend on political developments that require storytelling and imagination.

This political-fiction framing flips Gratton and Scott’s script. Gratton and Scott tell us that the 100-year life is coming, and they argue that policy needs to adapt to that reality. But whether the 100-year life becomes a reality depends in large part on whether longevity moonshot advocates can convince lawmakers and voters that century-long lifespans are worth pursuing. That persuasion effort involves many of the same elements as Gratton and Scott’s adaptation effort: thinking about how different elements of law and society might respond to century-long lifespans and considering whether those responses would leave us better off or worse. But at the end of the day, whether we proceed down the path to a 100-year life remains a political choice, not a fait accompli.

The science fiction and political fiction aspects of the 100-year life merge in another respect: Mapping out the plausible biomedical pathways to century-long lifespans will help us understand what collateral benefits a longevity moonshot might bring. The original moonshot and other NASA space exploration efforts have generated a long list of spinoff technologies ranging from the programmable cardiac pacemaker to the modern cochlear implant. A longevity moonshot may likewise yield collateral biomedical benefits. For example, research on intermittent fasting may yield glycemic control benefits for Type 2 diabetes patients.Footnote ²⁵ Senolytic therapies that delay or reverse aging may help address frailty among childhood cancer survivors.Footnote ²⁶ By highlighting these and other potential payoffs, longevity moonshot proponents may be able to forge political alliances with advocates for disease-specific research, who – for Olsonian reasons – tend to be better organized and more easily mobilized.

In short, understanding the 100-year life as an aspiration rather than an inevitability may make the outcome more realistic. Our legal and political institutions can help to provide the support that makes scientific breakthroughs more likely, but first, advocates will need to convince lawmakers that a longevity moonshot justifies the financial and political costs. Thus, to say that the 100-year life is a work of science fiction, legal fiction, and political fiction is not to write off the possibility of century-long lifespans. Rather, it is to say that in order to achieve the 100-year life, we need to imagine it first. In that sense, the enterprise that Gratton and Scott ask us to engage in is worthwhile even though – indeed, precisely because – century-long lifespans cannot be taken for granted.

This chapter considers where law and bioethics intersect as to the 100-year life. It tackles two different issues. The first is an exploration of the bioethics of life extension and whether such extension is something that should be pursued. The second considers attempts to extend reproduction into the late period of life and the ethics thereof.

17.1 The Bioethics of Life Extension: Should We Do It?

In bioethics it is commonplace, albeit not without its critics, to distinguish treatment from enhancement. Treatments – whether curative (e.g., antibiotics for a bacteria), ameliorative (albuterol for asthmatic episodes), palliative (e.g., morphine for someone in pain in their final days before death), or preventative (vaccination for mumps) – are fully and uncontroversially consistent with the ends of medicine. Enhancements, by contrast, are viewed by some with more suspicion as either things to be prohibited or at least not subsidized by the state.

The political philosopher Norman Daniels is one of the most cogent defenders of the line, which he demarcates around the idea of “species-typical” functioning – that is, an enhancement is what boosts our capabilities beyond a species-typical level of normal functioning, while a treatment corrects for a disease, which is defined as a function of our biology or psychology that reduces an individual below a level of normal functioning.Footnote ¹

The pursuit of the 100-year-old life and beyond, especially one that seeks to increase not only the lifespan but also the wellspan and enables longevity and excellent functioning, puts pressure on the treatment enhancement distinction’s attractiveness as a guide either for what individuals should be allowed to pursue on their own (i.e., what should not be prohibited by a society), or what we are owed by the state (the way Daniels primarily employs the distinction). Put simply, living beyond 100 today at the wellness and functioning level of, say, a sixty-year-old is highly species-atypical – experienced by very few, if any. As such, under the Daniels definition it would clearly be an enhancement not a treatment. For some, that would be a reason to prohibit it (such as prohibiting attempts to improve IQ) or exclude it from the health care a society is obliged to provide (or at least unless and until it has met the needs for treatments of disease fully, it is a sort of “bonus”).

That perspective is in tension with many authors of this book and, I would suspect, the majority of the polity, who think pursuing excellent health past 100 is not only permissible but also desirable (possibly even obligatory) for the state to invest in. How to explain this divergence? An “error theory” approach would suggest either that it is a mistake to pursue the 100-year life as all-things-considered justified or that it is the enhancement treatment distinction as a guide for wise public policy that is the error.

In my view, the latter holds. The enhancement treatment distinction seems problematic at least as applied to lifespan and wellspan extension. The distinction seems to trade on a “baseline problem” that confuses is and ought. Consider the way the human lifespan and wellspan have varied dramatically across time. If 200 years ago someone proposed medical interventions to extend our lives by decades to their present length and wellness, would we have been right to resist those interventions as enhancements?

One might retort that there is a distinction between raising more people to the highest level attainable by our species and going beyond that level.Footnote ² If we pursued lifespans of 200 years, for example, we would cease being human and become something quite different. At best, the objection is making a problematically undefended appeal to the natural (in this case, what is natural for a human person). Even if we can agree that some things are natural and some are not, there is “no factual reason to suppose that what is natural is good (or at least better) and what is unnatural is bad (or at least worse).”Footnote ³ As Frances Kamm puts it:

Of course, rejecting the treatment enhancement line or appeals to the natural does not guarantee that a particular “enhancement” (if you must use that word) is unobjectionable. But increasing the number of years of healthy life escapes many of the stock objections to “enhancements.”

Additional healthy years are more absolute than positional goods,Footnote ⁵ and as such we are less worried about individuals pursuing them to produce private benefit at externalized costs.Footnote ⁶ If the project aims at reducing the gap between wellspan and lifespan, there is a plausible argument that it generates significant positive externalities in healthcare spending rates given the fact that healthcare spending currently increases substantially with age.Footnote ⁷ By contrast, increasing lifespan without correspondingly increasing the wellspan would produce significant cost externalities in terms of healthcare spending.Footnote ⁸

Some object to enhancements done on children or others as violating a “right to an open future” – that children should be “permitted to reach maturity with as many open options, opportunities, and advantages as possible.”Footnote ⁹ Even if you are persuaded in general by this objection,Footnote ¹⁰ when lifespan and wellspan expand in tandem it is hard to see the extension as deeply limiting rights to an open future. If anything, the number of “futures” one might pursue seem to expand in that one could imagine fourth or fifth careers, marriages, and so on, with a long-enough healthy life.

A different objection is about the irreversibility of some enhancements – especially when imposed on those who do not yet exist but, because of irreversibility, are stuck with them.Footnote ¹¹ There is a sensitive question about when life extension counts as “irreversible.” One could seek to end one’s life, and there is an argument that in a world of longer life spans there would be an obligation to also provide more end-of-life options. But ending one’s life is not a “reversal” of healthy longevity. It is the cessation of a life of a being who has been enhanced to live much longer. A “natural death” (whatever that means) becomes available only if one “sticks it out” – can we consider that a kind of injury that cannot be reversed? Without resort to a problematic baseline or undefended appeals to the natural it may be hard to characterize this as a deep problem with life extension; if this is a problem to impose on our children, so is our imposition of disease-free (or disease-reduced) lives for our children right now – they too cannot easily be “reversed.”

A different objection is what I have elsewhere called “The Coercion of Voluntary Enhancements (not Oxymoronic!).”Footnote ¹² Imagine the extension of lifespan and wellspan were completely optional – individuals could choose it or not without state penalty. Let’s further assume the extension is completely state-subsidized or otherwise costless (see below regarding the effect of relaxing this assumption). While this seems like a victory, as with all voluntary enhancements, there is a concern that it will result in “a new equilibrium where everyone enhances, or at least many choose to enhance who would not choose to enhance but-for the need to compete with the enhanced in a zero-sum distribution, and those who fail to enhance will suffer in terms of the distribution.”Footnote ¹³

With increased lifespan and wellspan it is easy to see how this will work. Why should law school only last three years, or medical school four? Why shouldn’t a thirty-year mortgage be extended by years or decades given longer life? Even if we imagine that each of these changes are, on balance, good, there is a distributional effect: Those who do not extend their lives face more life plans to which they are shut out (or at least delayed entry, with fewer years to experience them) as against a world where the extensions never happen. The end result is that many people who, but for this dynamic, would not choose to extend their (or their child’s) life will now do so. Furthermore, the “exit” options of ending one’s life will not solve the problem since the dynamic produces a “delayed start” in access to life plans.

I am fully convinced this is a real dynamic we would see if wellspan and lifespan are extended. But is it a moral problem? One answer is to say it is a problem, but not a problem for the “enhancement.” That is, we should strive to have our cake and eat it too – enabling life extension while seeking to correct this dynamic through other means such as labor law, antidiscrimination law (which must now protect the young more than in the past), forced retirements, and so on. Alternately, we could disagree that this is a problem, or at least a serious one. In prior work I have explored this with a hypothetical about a safe and costless drug that would improve the safety of airplane pilots and wondered whether we should be sympathetic to a pilot who argues “I have a right not to enhance and improve the safety of passengers, and the fact that it makes me a worse pilot and makes it more likely that my plane will crash, should not count against me in competing for this job.”Footnote ¹⁴

The pilot case – like all cases – has a mix of absolute and positional benefits skewing toward the absolute. Is the same true of life extension? Moreover, part of the “intuition pump” of this example is set up by assuming that the drug is safe and improves pilot performance significantly. This suggests that one may not make a judgment about life extension and the “voluntary coercion” effect as a whole but, instead, one might need to go institution by institution to determine whether requiring more experience as a condition of entry in a particular case is “credential inflation” without offsetting benefit or not.

One final relevant objection to enhancements is that when an enhancement becomes available it causes us to lose solidarity with those who choose not to avail themselves of it, including by shifting responsibility to them for bad health states. As framed by Michael Sandel, the more we come to view our lives as chance not choice, the more reason we have to share our fate with others, including through public financial support. However, all that might wither with enhancement.Footnote ¹⁵ Those who live for a very long time might come to view those with normal (as of 2023) lifespans and wellspans as poor unfortunate souls, the human equivalent of mayflies (who live for only a day), or perhaps as something quite different from ourselves, to whom we stand in the same distant relationship as to an unknown “beggar in Spain,” to borrow Nancy Kress’s novel’s title.Footnote ¹⁶ It is possible to contest the descriptive claim – to note that extending wellspan, in particular, might open more resources to all; to carve out the cases of failure to enhance children as one where the dynamic is least likely to hold; or to contest that our obligations to help others meet their health needs ought not to be premised on responsibility-based arguments.Footnote ¹⁷ One might also choose to “bite the bullet” and argue that, at least regarding wellspan extension, we ought to heap scorn or otherwise pressure others to engage in enhancement.Footnote ¹⁸ Still the possibility that life and wellspan extensions might create a genetic overclass and underclass is worrying and a reason why it is essential for the state, if possible, to try to equalize access to this extra time lest it become one more way of achieving hierarchy – especially dynastic.Footnote ¹⁹

Resources, though, are not infinite. Is it appropriate for the state to spend resources (such as grant funding) on extending the lifespan of those who already live fairly healthily into their seventies and eighties given how many people fail to live even that long or whose shorter lifespan is plagued by illness? One’s commitment to particular theories of distribution will shape the reply; utilitarianism, prioritarianism, and sufficientarianism offer well-established answers regarding what counts as a just distribution. Each of these theories can be applied to allocating “life years” or “health life years” and will provide different answers to when it is appropriate for the state to make the “rich” (in terms of years or health life) richer as opposed to focusing (or at least first focusing) efforts on the “poor.” There is also well-developed, if perhaps not resolved, literature in the space of rationing scarce medical goods (such as organs, vaccines, ICU beds) debating when it is appropriate to engage in “age weighting” – giving priority to younger over older claimants all else being equal, with one of the central arguments being the need to give everyone “fair innings” – a requisite number of life years to enable a particular kind of life.Footnote ²⁰ Many of the same concepts are applicable if we were allocating life extension directly rather than having it as an output of one of these other scarce goods. To the extent the relevant resources (e.g., research funding) were fungible, on many plausible theories the state would only be justified in pursuing or promoting life extension once it had already satisfied its duties toward those who currently receive lives that are unfairly short.

17.2 Fertile Octogenarians Abound! Reproducing Late in Extended Lives

As some may remember dimly from their property law class (or – in my case –studying for the bar) there is a funny pitfall in the application of the classic Rule Against Perpetuities to trusts that goes by the name of the “fertile octogenarian” rule, stemming from “a conclusive presumption of lifetime fertility.”Footnote ²¹ While at one point reproducing in one’s eighties – for women at least – was a fanciful law school hypothetical, in fact it is very possible today. What would it mean to reproduce late in the 100-year life?

The oldest reported successful pregnancy I know was of a seventy-three- or seventy-four-year-old woman (depending on the report) in India, who gave birth to twins by caesarean section.Footnote ²² But, of course, in “collaborative” or “third-party” reproduction the person seeking to produce a child to rear need not carry the child to term and may instead use a gestational surrogate. Many couples fertilize additional embryos as part of in vitro fertilization (IVF) and cryopreserve (i.e., “freeze”) them for a potential future use. In 2017, it was estimated that about 1 million embryos were housed in subzero facilities in the US alone.Footnote ²³ One could imagine a case where a couple fertilizes seven embryos at age thirty and implants them one at the time, leading to a successful pregnancy and the birth of a boy. Fifty years later they decide they want another child and then find a surrogate willing to assist. After paying her and thawing and transferring one of their cryopreserved embryos, there is a successful pregnancy and the birth of a girl. This girl would be fifty years younger than her full genetic brother in terms of her chronological age, but, if viewed from the moment of fertilization, she would be the exact same age as that brother – a strange incongruence.

This thought experiment is not that fanciful: in 2020 a child was born from a donated embryo frozen on October 14, 1992 and thawed for implantation in February 2020.Footnote ²⁴ The embryo was successfully transferred to and carried by Tina Gibson, who would serve as its legal and rearing mother – she herself was two years old when the embryo was first created.Footnote ²⁵ At twenty-seven years this is the current record for freezing and thawing, but there is no reason to think it could not go longer.

There are many other ways that reproduction so late in life could occur – frozen eggs, posthumously retrieved sperm, or perhaps most simply for older men with younger female partners. For example, James Doohan, who played “Scotty” on the original Star Trek, apparently had a daughter when he was aged eighty with his forty-four-year-old wife without intending to conceive.Footnote ²⁶

New technologies might provide still further extension of our reproductive periods. Mitochondrial replacement technique (MRT, sometimes called “three-parent IVF” by the lay press) is one “that involves removing an intended mother’s [nuclear] DNA from her oocyte [egg] or zygote, which contains mutated [mitochondrial] DNA, and transferring it into a female provider’s oocyte or zygote, which contains nonpathogenic [mitochondrial] DNA and from which the [nuclear] DNA has been removed.”Footnote ²⁷ While MRT’s primary use, and the use to which it has been authorized in the UK and a few other countries, has been to avoid transmitting mutant mitochondrial DNA to offspring while maintaining a mother’s genetic tie to the child,Footnote ²⁸ there have also been discussions of using it as a way to “rejuvenate” the eggs of older mothers.Footnote ²⁹ In vitro gametogenesis (IVG) in lay terms refers to deriving sperm or egg from a human’s adult cells – for example, skin cells.Footnote ³⁰ While the technique has thus far only been used to produce offspring in nonhuman animals, there is significant interest in many human applications of IVG, including as a way of enabling older women to produce eggs for reproduction.Footnote ³¹

Becoming a biological parent so late in life raises a host of interesting issues that stretch across many private and public law areas, including trust and estates, family law, insurance law, and public benefits law. I will not do any of it justice in this short space, but instead want to connect “reproducing so late in life” to two more general debates about the ethics of reproduction that I have written on: the rights claim to reproduce (especially as to state support for reproduction), which I will discuss in some depth, and claims of harm to offspring, which I will touch on only briefly.

In a recent paper on uterus transplants (currently used for women with uterine factor infertility, but in the future potentially for those assigned male at birth), I drew a distinction between the “first wave” of reproductive technologies “encompassing everything from Artificial Insemination to In Vitro Fertilization (IVF), Surrogacy, and Preimplantation Genetic Diagnosis (PGD)” and a new wave that encompasses uterus transplants, MRT, IVG, and potentially egg-freezing.Footnote ³² The first wave “focused on restoring or enabling the kind of reproductive options available to fertile, heterosexual, couples, a focus on what I call ‘mimicking’” and thus “largely expanded access to that which could be achieved by traditional reproduction.”Footnote ³³ The new wave, by contrast, is “more focused on ‘extending’ reproduction beyond what is possible through sexual reproduction.”Footnote ³⁴ The mimic extender distinction is interrelated to distinctions others have drawn in the literature:

The rights claim of a hypothetical ninety-year-old woman who wants to use one or more of the technologies discussed above to reproduce so late in life seems to be an extension, and not mimic use. The extension-mimic line seems normatively attractive in part because it mirrors the distinction between treatment versus enhancement discussed earlier.

The same might apply to our hypothetical ninety-year-old woman: She is asking for something species-atypical. While that fact may not justify a negative liberty restriction – I return to harm-based arguments that would be more common reasons for such restrictions later – does it defeat her rights claim to positive liberty state support for such reproduction?Footnote ³⁷

One response to this suggestion is to reject a keying of the treatment enhancement line to the conception of species-typical normal functioning, but then one needs another way to distinguish claims to assistance for health needs (with the moral urgency we normally assign to it) from nonhealth needs. A more radical approach would be to reject views that assign a special importance to health in favor of more consequentialist theories that

A third response is from within the species-typical normal functioning approach and suggests we may be too quick to assume that a woman’s reproduction at ninety is not species-typical. It is, after all, species-typical for men to be able to reproduce quite late in life like Star Trek’s Scotty did. Why is the right “comparator” group for species typicality the “female of the species” and not “the species, sex unspecified”?Footnote ³⁹

Another possible rejoinder is that while reproduction so late in life is species-atypical for a kind of organism that lives till eighty, it would not be atypical for a species that lived so much longer than that. For someone likely to live to age 200 reproducing at age ninety is roughly at the same point in one’s lifespan as it would be for someone likely to live to eighty to reproduce at age thirty-six – and we would view that as quite normal. Why not view the species-typical question in terms of proportions of a life-span – that is, it remains “species typical” to reproduce in the first third to half of one’s life span, with a third or a half being much longer with life extension?

For me there is a bit of a bootstrap “hat on a hat” quality to this argument: It suggests that once we have permitted the enhancement that enables individuals to live a much longer life (see Part I), our expectation of what is species-typical would reset – thus treating reproduction so much later in life as typical. On the other hand, when our range of lifespan or wellspan extends so much longer, why should our idea of a normatively tinged “normal opportunity range” not extend commensurately?

This move might generate the following countermove: There is an old maxim in the law of equity that “equity aids the vigilant, not those who slumber on their rights.”Footnote ⁴⁰ Those making a rights claim to use reproductive technologies at age ninety have, like Rip Van Winkle, slept an awful long time on their reproductive capacities. Does that suggest their claim to state assistance is forfeit or at least much diminished? Is it discriminatory against older individuals to deny them state support for opportunities not because they are older or is the fault theirs in failing to take advantage of an opportunity available to them when they were younger? Some might find that such a framing of formal equality misses the point. After all, one might use the same logic as to state support for women given our current lifespans: that the state can justifiably deny women past age thirty-eight state support for IVF in that they too slept on their rights – a right to reproduce earlier without the need of such technology. This feels like a reductio ad absurdum, especially when one considers how a society that refuses to support reproduction after age thirty-eight fosters a widening gap of sex inequality since it is women whose health and professional lives are most burdened by pregnancy.

On the flipside, though, state support of reproduction quite late in life might lead to a different kind of inequality through the dynamic of “voluntary coercion” of enhancements discussed earlier. Those who decide to extend their lives and have the resources to do so might feel the need to delay their reproduction to give themselves or their child the best start in life from a resource perspective. Some will simply not be able to afford the technologies needed to delay reproduction. Others who can afford it but would rather not reproduce so late may feel pressure to do so for their children to compete in a zero-sum society.

From the admitted (science fiction) armchair, it is a little hard to predict if this dynamic would take hold. So long as our ability to extend life or wellspan has a stopping point, one might argue that the pressure to delay reproduction is countered by the reality that every year of delay is one fewer year to spend with the child one produces. The equilibrium that results from trade-offs between enjoying one’s life without children, furthering one’s own non–child-rearing goals, building resources to give one’s children an excellent life, the number of years of life people would prefer to share with their children (and countless other factors) is hard to predict. So much seems likely to be mediated by culture that it seems like a shot in the dark to guess people’s first-order preferences.

While we started with the mimic-extension line, we have found both normative uncertainties about the moral force of species typicality and its underlying architecture of the normal opportunity range to this question, as well as difficulty predicting how extending lifespan would affect individuals’ reproductive choices if reproducing much later in life was also possible. One seemingly potential way out might be – in the positive liberty and even the negative liberty sense – to set policy based on the idea that reproduction so late in light is harmful to children.

The problem is twofold. One part is descriptive – how sure are we that reproduction late in life is bad for offspring? Over the past couple of decades, several jurisdictions – including France, Greece, Italy, Japan, and some Australian states – have at various points had in place prohibitions on IVF for women above a certain age premised on concern for the welfare of offspring.Footnote ⁴¹ It is important to distinguish risk to offspring from risk to pregnant persons (including the risk of losing the pregnancy). A recent review article summarized the existing state of the literature:

Whether these problems would become worse, improve, or stay the same in individuals whose life was radically extended will certainly depend on how life extension is achieved. But it seems plausible that some but not all of those risks might be mitigated by permitting reproduction but not pregnancy very late in life. Such a strategy would require increased use of gestational surrogacy, which for some may be a normative reason to oppose it. But the normative justification of prohibition on this basis would be explicitly paternalistic (harm to self) rather than offspring-focused (harm to others), the latter being a more common basis for reproductive regulation.Footnote ⁴³

What about risk to offspring in a possible future where individuals (especially women) can produce gametes much later in life than they currently can? In our current technological attainment, advanced maternal and paternal age has been associated (among other things) with autism spectrum disorders in children – with the most frequently cited hypothesized mechanisms on the paternal side being “increased rates of de novo mutations and epigenetic alternations associated with increasing age,” and on the maternal side being “higher rates of chromosomal abnormalities, perinatal and obstetric complications, and potential genomic and/or epigenetic alterations induced by cumulative exposure to environmental toxins.”Footnote ⁴⁴ If these trends persist with radical life extension and reproduction even late in life, are these the kinds of deficits that should matter to that state? Or does such an intervention impermissibly favor the neurotypical over the neurodiverse in a way that should be intolerable from a disability rights perspective? A different set of arguments surrounds the harm to a child from being born to parents who will be deceased early on in that child’s life – in fact, this is an area where life extension might be a solution rather than part of the problem.

But even if one resolves these kinds of questions in favor of the view that the risks to offspring are so great that they would justify prohibition on reproduction late in life, there is a second more conceptual problem associated with Derek Parfit’s non-identity problem:Footnote ⁴⁵ We cannot justify prohibiting an act of reproduction on the basis of harm to the offspring that would result (what I have called “best interests of the resulting child” justifications) if we provide the child a life worth living, because that child’s existence is not worse than a counterfactual of not existing at all. As I wrote more than a decade ago:

My claim remains controversial among both philosophers and legal scholars.Footnote ⁴⁷ Even if accepted, this does not rule other arguments for prohibiting reproduction by aged parents for which the welfare states of offspring may be relevant: arguments premised on non–person-affecting principles, wronging without harming, reproductive externalities, virtue ethics – or arguments premised on legal moralism, or justified paternalism, and perhaps other arguments might still be available.Footnote ⁴⁸ But to justify age-based regulation of reproduction on one of these grounds is more fraught, normatively speaking, than relying on the much simpler harm principle-type argument I believe is illusory in this space. These alternative arguments often have premises or entailments that some will find problematic and require us to step outside of the more comfortable liberal commitment to child welfare as a north star.Footnote ⁴⁹