The controversy over Giubilini and Minerva's article Journal of Medical Ethics, defending what the authors described as 'after-birth abortion' highlighted an important disconnect between the way that academic bioethicists think about their role, and what ordinary people think should be the role of bioethics. The style of this dispute – its acrimony and apparent incomprehension on both sides – are a sure sign that we as bioethicists need to think harder about what we are doing, and who we are doing it for.At the heart of tempest has been the authors’ claim that abortion and infanticide are morally equivalent. Nearly everyone will agree that the authors are wrong about this, and that infanticide is and should always remain beyond the pale.
The US Born-Alive Infants Protection Act 2002 stipulates that the category of person – and the full protection due to persons – must be extended to “every infant member of the species homo sapiens who is born alive at any stage of development“. The deep question – from the perspective of academic ethics – is why every human being that is born alive should count as a person.
Often in bioethics the most difficult task is to articulate just what it is that lies behind the sorts of intuitive moral certainties that we all have: that is, to make clear to ourselves, and to those who are inclined to hold opposing views, just what our confidence in our own intuitive moral judgments is based on. This is often extremely difficult to do.
Why Some Bioethicists Think that Birth does not Matter
At the heart of Giubilini and Minerva’s claim that infanticide is morally on a par with abortion is the premise birth by itself does nothing to change the moral status of a developing human.
According to them (and like minded philosophers such as John Harris, Peter Singer and Michael Tooley) what makes the difference between a person and something that isn’t a person must be something to do with the capacities and abilities that a person has. On such views, if we want to say that all human beings should count as persons then we need to provide some account of what feature or features it is that all human beings have that renders it appropriate to treat them as persons. The feature of being born alive to a human mother does not – according to them – fit the bill.
According to these philosophers, this definition of “person” is both too narrow, and too broad. It’s too narrow, because it’s clear that there could be intelligent alien species who had the ability to engage in moral thinking; but yet who clearly would not be born to a human mother. They need not be born at all: perhaps the aliens from the planet Zog assemble themselves out of flatpacks from an interplanetary Ikea. But so long as they are able to live and to value things as we do, why should we deny them the status of persons? To do so looks like a human-centred chauvinism, no more than speciesism.
But the feature of being born alive to a human also looks too broad: what if the brain of the infant has been irreparably damaged, so that it will remain in its intellectual functioning at a level far below that of a chimpanzee and will never be able to love, to form plans or even to recognize itself in the mirror? Why (and in what sense) does an infant like this count as an equal of a fully functional adult?
John Harris has argued that we should strike down the thought that it is being born that makes the difference. As he once put it, “the geographical location of the developing human, whether it is inside the womb or not, is not the sort of thing that can make a moral difference”. (Even here, he was careful to clarify – as he has on this blog, that he was neither advocating infanticide, nor arguing for a change in the law.)
A Poor Reply: Banging the Table
The cheapest and easiest response to this challenge is to merely bang the table and assert the sheer obviousness of the difference that birth makes. As an example of this approach, Richard Nicholson once accused John Harris of indulging in “a philosopher’s mind game”. He continued, “He is wrong in saying there is no moral change that occurs in the process of birth. That is a change that is recognised in the law. Most parents would recognise their views about their newborn baby are considerably different than their views about the foetus in the mother a day earlier.”
All this, one feels, may be true; but it is hardly intellectually satisfying. Just because most parents would feel differently, it doesn’t in itself follow that they are justified in changing their feelings this way. It’s weak to counter an argument that puts forward reasons by merely appealing to force of numbers – pointing out that most people judge the same way you do.
Explaining the Significance of Birth
If we want to defend the moral significance of birth, then we need to provide some positive account of why birth matters. I want to outline very briefly three possible positive accounts.
(1) The infant now counts as a person because he or she is now a separate living entity: he or she is viable and is not dependent on anyone else for existence.
Some worries: it seems that this explanation misfires, because ‘being a separate living entity’ is both too broad, and too narrow, to serve as the feature that makes the difference between a person and a non-person. It’s too broad because dogs and cats are separate entities in their own right, but this does not make them persons. But it’s too narrow, because there can be persons who are not viable separate living entities: both of a pair of conjoined twins can count as separate persons, but in a severe case it might be quite impossible for both to be able to survive separation.
(2) The infant was already a person, previously it was lodged in the mother’s body like a guest lodged in a house owned by someone else.
On this view, there were conditions under which it would have been legitimate to expel the foetus despite the fact that it was a person (in circumstances such as those that Judith Jarvis Thomson considers in her famous defence of abortion, for instance). The significance of birth is that all these reasons that the mother may have to abort the foetus are then defeated.
Some Worries: This approach seems initially promising, but it may only push the problem further back: (a) we now need to give some non-arbitrary account of why the foetus was already a person, and how it became a person. (b) On this view it turns out that it isn’t birth that is actually doing the work here in making an entity a person.
(3) Ethical vision beyond explicit arguments
Charles Taylor makes a useful distinction between two different modes of ethical argumentation, which he calls offering basic reasons and articulating a vision of the good. As he says in Sources of the Self, “It is one thing to say that I ought to refrain from manipulating your emotions or threatening you because that is what respecting your rights as a human being requires. It is quite another to set out just what makes human beings worthy of commanding our respect, and to describe the higher mode of life and feeling which is involved in recognising this.”
Ethicists often place a very high degree of value on explicitness and arguments from consistency, invoking basic reasons in Taylor’s sense. A key part of Giubilini and Minerva’s argument has the following structure, for instance:
1. Persons are creatures with feature F.
2. The newborn does not have feature F.
3. Therefore the newborn is not a person.
A large part of the acrimony of the dispute seems to arise from the fact that many feel that to adopt this kind of schema fundamentally misunderstands the foundations of ethical consciousness. For them, what is foundational is the fragility of the life of the infant, and that once that has been appropriately noticed or articulated, one should be called upon to respond. So on this view, the answer may not be to describe those valuable features of human beings in terms that are applicable to any potential being at all, but rather to draw attention to just what it is about human being that we mean when we talk about the intrinsic dignity and value of human life.
This is something that is extremely difficult to do within the confines of analytic philosophy. For such articulation of the phenomenology of our fundamental moral commitments, literature is far more powerful. I’ll conclude this post with a bit from Tolstoy’s Anna Karenin, which perhaps provides some of this vision. Levin is struck by wonder at the birth of his son:
Meanwhile, at the foot of the bed, in Lizaveta Petrovna’s skilful hands flickered the life of a human being, like the small uncertain flame of a night-light – a human being who had not existed a moment ago but who, with the same rights and importance to itself as the rest of humanity, would live and create others in its own image… Whence, wherefore had it come, and who was it? He could not understand at all, nor accustom himself to the idea. It seemed to him too much, a superabundance, to which he was unable to get used for a long time.