In “Your body, not mine” I noted that “I don’t consider a foetus prior to the point of viability to be an individual human being.” – and said that I’d revisit it later.
This is later.
I get pretty cold, a bit pompous, and talk about some pretty nasty things here; you have been warned.
This particular post was in the works already. The original prompt was an article on The Conversation regarding a paper by Philosophers Alberto Giubilini and Francesca Minerva on “post-natal abortion”, or infanticide. Here’s an extract from the piece:
“Giubilini and Minerva’s argument is stunningly simple. There is no morally relevant difference between a foetus and a newborn baby, because their capacities are relevantly similar. Neither foetus nor newborn is really capable of forming any long-term aims. Only a person can form long-term aims that are capable of being quashed – and this is what differentiates us from other species – so neither a foetus nor a newborn are persons.”
– Andrew McGee, There’s no good argument for infanticide
Giubilini and Minerva are basing their argument on personhood, and claiming that personhood is a function of cognitive abilities and sentience.
I had a discussion with this with a friend, and he noted that, the cognitive faculties present in a typical adult (self-consciousness, survival instinct, predicting consequence, empathy, etc.), those things we use to determine personhood, “are all dulled or absent in a newborn child.” We noted in our discussion that based on that yardstick, a newborn isn’t a person, but they might become one – and yet so might a foetus, or a zygote, or even a sperm and egg. They’re all non-persons with the potential to be persons, so what is the divider?
The idea was advanced that we could use statistical evaluation of the likelihood of the infant’s survival if removed from parental care, within a certain level of technological development. While this is not without merit, there is another way to approach this; through human rights theory.
We had, in our discussion, determined that it would be unethical to terminate a foetus past the point of viability, specifically that it was unethical to abort a typical viable foetus.
The term “typical viable foetus” meant that it had no deleterious abnormalities present (a “normal” specimen in layman’s terms), and the entity could survive without being physically integrated into another organism (e.g., no need for an umbilical cord to satisfy nutritional and respiratory needs). All cases requiring radical medical intervention were excluded from consideration – not because such cases altered the point of viability, but because these cases are highly irregular, and due to their individualised and atypical circumstances are extremely poorly suited to application to the vast majority of cases. They are best addressed, case-by-case, between the mother, her partner if she desires, and her medical professionals.
The reason why I am placing such emphasis on the viability of the foetus is that, prior to viability, it is, essentially, a part of its mother’s body – no more capable, at that point in time, of an independent existence than her liver or spleen. It is not a separate and extant human life, and at that point in time, it cannot be one.
When the foetus achieves viability, it is capable of an independent existence at that point in time; all it would take is delivery (medically safe separation from the mother’s body), to become an individual, though dependent, human life. A newborn is not unlike a very elderly person, a comatose person, someone with muscular dystrophy, a child with Spina bifida, and so on, in that the newborn is a dependent entity, but it is still a separate and extant human life in and of itself; an individual human being.
Enter human rights theory; human rights are those freedoms regarded as essential to the physical and mental well-being of individuals, and you are accorded these rights by the simple virtue of your membership of the human species (See Geoffrey Robertson QC, The Statute of Liberty, 2009, and similar works for more detailed discussions). Now, I am aware of the criticisms of Marx and Bentham on the subject of human rights. The former is not a universal criticism of the concept, but rather of specific rights around property – and contemporary Marxists (the few that are left) have acknowledged that the validity of the concept. Bentham’s dismissal of human rights as “nonsense on stilts” was a criticism of rights being granted by metaphysical entities, or being purely subjective. Modern human rights theory isn’t grounded in nature or divinity, but on a broad spectrum of philosophy, including the mutual respect for the dignity of your fellow human beings. I’ll revisit this below.
The typical newborn child is an individual human being, and as terminating it now would end an individual human life, such an act is homicide; a denial of that human being’s right to life. If done intentionally (“with malice aforethought” in the parlance of the courts), then it is murder. It is also a gross abrogation of responsibility; since the parent(s) of the baby had every opportunity to prevent conception, abort, or access support services, they now have a post-birth responsibility for the life they have created. At the very least, their responsibility is to see that life delivered into the care of the State.
As stated earlier, since a typical nonviable foetus isn’t an individual human life, terminating it isn’t murder.
There is an implied question there – why should we respect the newborn’s right to life? Why, for that matter, should we respect anyone’s right to life? Because of the “dignity of our fellow human beings”? Is that enough? That this individual human life must be respected simply because it is an individual human life?
Well, yes – you monster.
But if that’s too emotive for you, consider the following; only by protecting, without distinction, the rights of all human beings, can we ensure that the rights of all human beings (including ourselves) are realised. Human rights protection it is a simple act of rational self-interest. It is in your interest to make sure that all of my rights are fully protected, because it’s the only way you can make sure your rights are fully protected; the same techniques you use to deny me mine can (and will, as history shows us) be used to deny you yours. A thought exercise commonly used to carry this point across is the veil of ignorance; imagine that you are yet to be born into a given society. You have no idea, and will not have any idea, of which station you might occupy; poor/rich, educated/uneducated, strength, intelligence, race, sexuality, sex, nothing. Not a clue. Now, in this case, create the laws, remembering that you will have to live in this society; remember your history about what happens when human rights abuses are left unchecked. To deny others their human rights is, at the core, fundamentally irrational.
The equal preservation and protection of human rights is a pure act of rational self-interest.
The question of why you are accorded human rights simply for being a human being was wrestled with by human rights theorists, jurors, philosophers, scientists, and world leaders in the late 1940’s. The catalyst, you would have already guessed, was that the horrors of Europe and the “Greater East Asian Co-Prosperity Sphere” were uncovered – it was agreed in San Francisco that the fundamental basis of being accorded human rights was membership of our species, unaffected by differentiations in the cognitive abilities of various individuals. But that just tells us what happened and the proximate trigger; beyond appeals to the dictionary or circular logic, why are you accorded human rights simply because you’re human? Well, it comes back to rational self-interest, and the awful consequences of what happens when human rights are tied to any other metric.
History teaches us that if you tie the granting of human rights, especially the right to life, to something as amorphous as “personhood”, someone will redefine “personhood” to exclude a particular group of people; the only question is when. It is inevitable that compromising the rights of others due to factors such as cognitive ability (or sex, race, sexuality, etc.), as opposed to actions (primarily committing an act that infringes on the rights of others, i.e., a crime) will result in increasing violations of the human rights of other groups. It is a dark path that leads to what is called the Ultimate Crime; genocide.
This isn’t me falling down the slippery slope; it happens with depressing frequency, so much so that serious people recognise and take it very seriously.
One could contend, at this point, that we regularly deny children certain human rights, and that hasn’t led to horrific acts of inhumanity; we deny those on cognitive ability. One major problem with the contention is that it presumes all rights are equal – when they are not. The right to life is the fundamental one; if it’s compromised the rest are utterly irrelevant – you’re a corpse. Otherwise it is factually correct; we do restrict some rights of children at law, they are not accorded precisely the same rights as adults, and while failure to protect the rights of children has led to horrific abuses, that is not a universality. The two primary examples of restricted rights are entering contracts (property rights, in other words – you have to enter a contract to take ownership after all), and the franchise – the right to vote, limited to adults. Neither case has led to a crime against humanity. I’ll address them in that order.
The most elementary limit on the rights of any human being is the prohibition of infringing the rights of others; this is encapsulated in the saying “your right to swing your arm ends where my nose begins.” You can exercise your rights to your heart’s content, until you harm, or cause harm to, another. But what if the “other” is not capable of protecting their own rights or providing for their own well-being, like a child? To specifically address the case of children, we accord specific rights to them, and recognise that they are in greater need of the protection of their rights than adults – again, history has furnished us with terrible examples of what happens when the rights of children are not well-protected (I’m not linking that; it’s too depressing). Because we accept that children are, simply, not competent enough to protect their own rights or provide for their own well-being, we require that a more competent person (say, a parent, or an agent of the state) must do it for them;
“The purpose of the infancy doctrine is to protect ‘minors from foolishly squandering their wealth through improvident contracts with crafty adults who would take advantage of them in the marketplace.'”
Hauer v. Union State Bank of Wautoma, 192 Wis. 2d 576, 593 (1995), quoting Halbman v. Lemke, 99 Wis. 2d 241, 245 (1980)
The welfare of the child is the paramount consideration here, and the basis for our utilisation of legal guardianship of minors. Using our analogy, it is all too easy for an adult to swing their arm into the child’s nose; they are closer together after all, so another adult should stand between them. The restriction of certain of the rights of a child is only undertaken to preserve their basic rights around well-being – in their interests.
But all that can be rendered irrelevant with the strike of a gavel; a child can seek to be emancipated, and thus realise their human rights as relates to property and contract (among other things – residency, work, and so on). All they need do is demonstrate that they are capable of acting in an adult capacity, i.e., that they will not be unfairly disadvantaged by their age, thus endangering their welfare, and will be an adequate guardian of their own rights; again, the welfare of the child overrides all other considerations.
Regarding voting, well, we trust sixteen-year-olds to make the “adult” decision to have sex; I would not oppose extending the franchise to them. Nor would I oppose extending the franchise even younger than that, as long as a case can be made that children would be able to vote free of undue influence from their parents/guardians, and are at least as capable of understanding the consequences of their vote as any member of the general public (an extraordinarily low standard to meet, I know).
The same circumstances apply to people with “diminished capacity”, and in all such cases at no point is the individual’s right to life violated; actions are taken with the aim of safeguarding the interests and welfare of those individuals, and there are a lot of very dedicated people devoted to looking out for them.
In summary, therefore;
- Terminating a nonviable foetus is not unethical as it is not an individual human life, nor capable of being one at that point;
- Terminating a typical viable foetus is unethical, as although it is not an individual human life, it is immediately capable of becoming one via a safe delivery procedure and can be supported by others, voluntarily; and
- Killing a typical newborn baby or an infant is unethical as it is already an individual human life, with all the rights accorded thereunto, and (from a utilitarian point of view) completely unnecessary where adequate support services exist to provide for it if the parents are incapable or unwilling – murder, with stupidity on top.
But what if the foetus or newborn is atypical, for example, it is afflicted with anencephaly? Well, I covered that above; in those cases, it is up to the parent(s) to decide the course of action, with the best impartial advice from their medical professional.