Introduction
There is a basic contradiction involved in permitting abortion while at
the same time prohibiting prenatal harm. (1) This
contradiction can be stated in personhood terms and in terms of the woman's rights. I'd
like to elucidate that contradiction and examine three solutions which rise out of current
literature; I'd like then to propose a somewhat new, fourth solution.
The Contradiction
Stated in terms of personhood, the contradiction is this: abortion is
permitted or condoned because the fetus (2) is not a
person, but prenatal harm is prohibited or condemned because the fetus is a person.
(3) Obviously one can't have it both ways — either the
fetus is or is not a person.
Stated in terms of the woman's rights, the contradiction is this:
abortion is permitted or condoned because the woman has the right to control her own body,
(4) but prenatal harm is prohibited or condemned because the
woman doesn't have the right to control her own body. Again, one can't have it both
ways — either the woman does or does not have the right to control her own body.
1. The 'Other Grounds' Solution
One solution to the personhood version of the contradiction is to argue
for the permissibility of abortion on grounds other than personhood. Arguments to
personhood are usually a subset of arguments to rights: one argues for personhood in
order to argue for the right to life. Eliminating this intermediary step and focusing
directly on rights — and then not necessarily only on the right to life —
provides such other grounds. When rights conflict, it is sometimes permissible to kill
persons, most notably in cases of self-defence. Thus, granting personhood to the fetus
need not preclude permitting abortion. (Alternatively, not granting personhood does not
necessarily entail permitting abortion: the fetus may not be a person but may still have
certain rights, not the least of which may be the right not to be killed.) Both Thomson (5)
and English (6) develop such arguments for (and against)
abortion which are rights-based and independent of personhood.
One can also argue against prenatal harm on grounds other than
personhood. The fetus may not be a person and still it may be unacceptable to cause it
harm; the arguments of animal rights advocates such as Regan (7)
and Singer (8) may be applicable in this case.
(Alternatively, the fetus may be a person and still it may be acceptable to cause it harm;
surgeons do this every day. (9) )
The woman's rights version of the contradiction can also be solved by
appeals to other grounds. There are grounds other than the right to control one's body
that justify abortion. For example, abortion could be permitted because the fetus is not
developing 'correctly' and/or its development and birth will likely kill the woman.
And prenatal harm can be prohibited even if one does have the right to
control one's body. After all, non-pregnant women presumably with the right to control
their bodies are not permitted to cause postnatal harm.
In both cases, resorting to other grounds solves, or rather, dissolves,
the contradiction by eliminating the need to make the determinations which create the
contradiction — specifically whether or not the fetus is a person and whether or not
the woman has the right to control her own body. These determinations are simply
unnecessary; one can argue for abortion and against prenatal harm without them.
While this solution is not insignificant, and indeed may be preferable
to the others in this paper, I shall not argue further for it as this has already been
done quite capably by others.
2. The 'Continuum of Personhood' Solution
The personhood version of the contradiction, as initially presented,
entails the assumption that personhood is an 'all or nothing' attribute, and this may, in
fact, be wrong-headed. It may be more reasonable, more reflective of our reality, to
consider the many possible criteria — human genetic material, brainwaves, heartbeat,
quickening, sentience, viability, social visibility, ability to communicate,
self-motivated activity, capacity for rational thought, consciousness, interests of one's
own, etc. — and establish some sort of continuum of personhood.
Recalling that personhood is established in order to establish rights,
one can then 'assign' fewer rights to 'lesser persons.' (10)
The acceptability of aborting a being with minimal personhood would not then contradict
the unacceptability of harming a being with considerably more personhood.
This 'continuum of personhood' can be transposed to a 'continuum of
body' in order to solve the woman's rights version of the contradiction. What I mean by
'continuum of the body' is that while the woman does have the right to control her body,
what is considered 'her body' changes through the pregnancy parallel to the changes in the
personhood of the zygote/embryo/ fetus: the less it is a person, the more it is her body;
the more it is a person, the less it is her body. Thus aborting when 'her body' is very
much her body may be acceptable whereas harming when it is not may not be.
The main weakness of this solution is that fixing the points on the
continua is not easy and distinctions may be arbitrary and fuzzy.
3. The 'Continuum of Rights' Solution
In our society, not all persons have the same, or even equal, rights.
An institutionalized person (whether in a hospital or prison) doesn't have the same rights
as an non-institutionalized person. More relevantly, a two-year old infant doesn't have
the same rights as a twenty-year old adult. As Callahan and Knight (11)
and Mathieu (12) point out, many rights are attached to age
in a rather arbitrary fashion because the development of abilities is continuous rather
than discrete. So while a fifteen-and-three-quarters-year old might argue that she is just
as mature as her sixteen-year old friend and therefore should have just as much a right to
get a beginner driver's licence, a six-year old could not make the same argument.
With similar arbitrariness — and with similar justification
because the continuousness of development demands such arbitrariness — we
could argue that an eight-month old fetus person doesn't have the same rights as a
one-month old infant person, and that a one-week old zygote person doesn't have the same
rights as the eight-month old fetus person. (In effect, this solution mirrors the previous
one, because of the connection between personhood and rights.)
The two important rights that concern us in this paper, the right to
life (or the right not to be killed) and the right not to be harmed, can be placed on the
continuum such that, for example, only old fetus persons (and not young fetus persons,
embryo persons, or zygote persons) have both the right to life and the right not to be
harmed. Or we could say that all persons have the right not to be harmed but only fetus
persons have the right to life. Thus one could condone (certain) abortion and
condemn (certain) prenatal harm without contradiction (depending on where the lines are
drawn).
This solution is also available for the woman's rights version of the
contradiction. The right to control one's own body is not an 'all or nothing' right: there
is a continuum — not everything one does with one's body is legal or morally
acceptable. For example, it's generally illegal, as well as immoral, for people to use
their bodies to break other people's legs. It could be similarly illegal, and/or immoral,
for women to use their bodies in such a way as to cause harm to a fetus, but not illegal,
or immoral, to cause death to a zygote.
This solution shares the weakness of the preceding solution, that of
arbitrary and fuzzy distinctions.
4. The 'Potential Person/Future Person: Potentially Born/
Preborn' Solution
The notion of 'potential person' figures prominently in the discussion
about abortion. To some, it is the notion that a fetus is a potential person that
justifies an anti-abortion stance. To others, potential persons have only potential
rights. (13) The notion of 'future persons' is prominent in
environmental ethics, though discussion tends toward 'duties toward' rather than 'rights
of.'
Adding the notions of 'actual persons' and 'conventional persons,'
Callahan and Knight make the following four-tiered distinction. Actual persons are
human beings with those characteristics such as "a concept of oneself as an ongoing
being with at least some kinds of plans and stakes" (14)
that compel us to recognize strong moral rights; full emergence of these characteristics
occurs long after birth. Conventional persons are human beings that are not yet
actual persons but that have been born. Potential persons are defined thus: "A
prenatal human being is a potential person when it is the case that (1) it has the
capacities to develop the kinds of characteristics that are relevant to compelling a
recognition of a being as an actual person and (2) if its life were supported, it would be
born, gaining conventional entry into the set of persons at birth". (15)
And future persons are defined thus: "A prenatal human being is a future
person if (1) it is a potential person and (2) it will, in fact, gain conventional entry
into the class of persons through birth". (16)
I accept Callahan and Knight's definitions of a potential person and a
future person but I want to emphasize, indeed specify, that it is the woman who
decides whether or not a prenatal human being will, in fact, 'gain such entry.' That is to
say, the single determinant differentiating between potential and future persons is the
woman's intent: if she intends to carry the being to term and give it birth, then it
shall be deemed a future person; if she does not intend to carry it to term and give it
birth, it shall be deemed a potential person. To underscore the intent to bear as the
difference, and to eliminate the impression that a potential person is indeed some kind of
person, I will henceforth refer to potential persons and future persons as,
respectively, the 'potentially born' and the 'preborn.'
While not making the same distinction between the potentially born and
the preborn, both Mathieu and Nolan support the intention to give birth as the
dividing line for moral obligations: "Once a pregnant woman forgoes her right to have
an abortion, then, it could be argued that her actions should be constrained by
considerations of the welfare of the child that the fetus will become. . . . It follows
that a pregnant woman incurs these moral obligations to her future child only if she
intends to carry the fetus to term" (17) (my
emphasis); ". . . a pregnancy which is expected to result in delivery of a
child generates moral obligations based on the consequences to that child of actions and
events that occurred during the prenatal period" (my emphasis). (18)
Thus, rather than, as Keyserlingk says, the unborn's 'rights' ending when the mother
decides to have an abortion, (19) such 'rights' would begin
when she decides to carry it and give it birth. And it is the woman's intent that
is important, not that of the sperm source nor society, because only her resources
sustain (or not) its development.
Putting intent 'front and centre' is, of course, not new to ethical
theory. Usually, however, intent plays a role directly between the agent and the action:
In order to determine an action's rightness/wrongness, one asks whether
or not the agent intended to perform the action. For example, did she or did she not
intend to abort? In this case, however, intent plays a role between the agent and
the recipient of the action:
In order to determine the action's rightness/wrongness, one asks what
the agent intended the recipient to be: did she or did she not intend the recipient of the
action to be born?
There is no precedent for this approach since the status of the
recipient is typically independent of the agent's intent. Suppose, however, that a
company's benefits plan extended to the fiancés as well as the husbands of its female
employees, and suppose a certain Jane Smith filed for, collected, and gave money to a
certain John Doe for eyeglasses: whether or not Jane intended to marry John would
determine whether or not her action was fraudulent. That is, as with the position proposed
in this paper, the agent's intent toward the recipient determines the rightness/wrongness
of the action.
A common objection to putting so much weight on the woman's intent has
been that "many women carry fetuses to term without ever forming the intent to do
so," (20) that "particularly in the early states
of pregnancy, many have a preborn inside of them one day and a potentially born inside of
them the next". (21) I do not argue with that
description of social reality, but I claim that such behaviour is irresponsible. We
discuss in great detail the matter of ending life: active, passive, voluntary,
coerced, premeditated, accidental, negligent. . . . But about beginning life, we
are horrendously silent, irresponsibly laissez-faire. Non-intentional, accidental creation
of life should be just as criminal as non-intentional, accidental destruction of life.
Perhaps we need to declare a new crime — negligent gestation. (22)
What is significant about the potentially born/preborn distinction is
not that it creates new categories of beings to which we can then assign rights or
obligations. This would simply repeat the difficulty of the personhood version of the
contradiction and add the difficulty of the woman's rights version.
Rather, what is important is that the woman's intent determines, with
as much certainty as is possible, whether or not the fetus will have future interests and
therefore does have present interests, developmental in nature. A consequentialist
approach is then appropriate, indeed sufficient, for determining the rightness/wrongness
of both prenatal 'harm' and abortion: if the consequence negatively bears on the fetus'
interests, i.e., is harmful, then the action is wrong, arguably morally and legally
reprehensible, and to be prohibited; if not, then it can be permitted.
There are four actions to be considered: prenatal harm to the
potentially born, abortion of the potentially born, prenatal harm to the preborn, and
abortion of the preborn. The first two would not be wrong because in both cases, there
will not be some being who will at some future time suffer from the harm or loss; indeed,
one can't properly speak of any consequences for the potentially born because
there's no being for whom there are consequences. (23)
The positive consequences to others involved, such as the woman who does not want a child,
add to the judgement that no wrong has been done.
However, the last two would be deemed wrong because the consequences
would be negative. In the case of prenatal harm to a preborn, if all goes as intended,
there will be an infant, a child, an adult at some sort of disadvantage, who has interests
that will have been detrimentally affected; (24) in the case
of abortion of the preborn, if all had gone as intended, there would've been an actual and
then a conventional person, who now has been deprived of life. (25)
The negative consequences to others involved, such as the parents, increase the
wrongdoing.
The contradiction of permitting abortion and prohibiting prenatal harm
is thus solved: insofar as both aborting a potentially born and preventing prenatal harm
to a preborn lead to good (or at the very least, fail to lead to bad), there is no
contradiction in supporting both. One might ask, recalling the personhood version of the
contradiction, whether or not the preborn (or the potentially born) is a person, but one
doesn't need to. And as for the woman's rights version of the contradiction, the woman has
full/usual rights over her body when the potentially born are involved, but she has
restricted rights when the preborn are involved; such restrictions can be, I think, worked
out according to a consequence-considering cost-benefit strategy.
Conclusion
Of the four solutions available to avoid the seeming contradiction,
whether in terms of personhood or the woman's right to control her body, of
permitting/condoning abortion while at the same prohibiting/condemning prenatal harm, the
first, that of other grounds, is strong and well-argued by others.
The second and third solution, a continuum of personhood/body and a
continuum of rights, share the difficulty of arbitrary and fuzzy distinctions.
The fourth solution, distinguishing between the potentially born and the preborn on the
basis of the woman's intent and then measuring consequences according to the interests
involved (thus reconciling permitting abortion while prohibiting prenatal harm), has the
advantage of eliminating such arbitrary and fuzzy lines: intent can be discrete, (26)
unlike the development from zygote to embryo to fetus to infant to child to adult. Also to
its credit are the central positions given to intent and consequence.
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