‘Does the fetus have any moral claims which could limit a pregnant woman’s freedom to abort?

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For such a “simple, routine and frequently performed operation,” the topic of abortion has been one of the most controversial procedures of our time (Jackson, 2001, p 72). Abortion is “the destruction of life after conception and before birth’,” and is bounded between non-conception at one end and infanticide at the other (Glover, 1977, p 120). The central question to be addressed is not whether abortion in itself is morally acceptable, but whether the moral status of the fetus prescribes any moral claims over the pregnant woman that would override her freedom to abort. Varying philosophical positions on this issue are informed by different perceptions of the fetus’ moral status.

Presented in three sections, this paper will argue that the fetus does not have moral status and therefore cannot have any moral claims that should override the claims of the mother. Frist, I will examine the philosophical views that surround the concept of moral status and argue that moral status is defined in terms of birth and therefore the fetus does not have any moral claims. Secondly, I will examine whether there are competing interests between the mother and fetus and whether the fetus’s claims can ever trump the woman’s so that the woman should be denied an abortion. Lastly, I will examine and argue that even if one considers a fetus to be a person with a claim for a right to life, abortion can still be a morally permissible act and that to force a woman to undergo an unwanted pregnancy would be a gross violation of her personal autonomy and right to control her body permitted the fetus has no capability to survive outside the woman’s body.

Philosophical Views on the Moral Status of the Fetus

  • The Fetus is a Human Being

Moral status is defined as a property which gives individuals a claim on others, creating an obligation in others to treat these individuals in a particular way (Glannon, 2005, p 73). More specifically, the moral status of an individual allows them to enjoy the same set of rights (or moral claims) against others (Jaworska & Tannenbaum, 2013). For many opponents of abortion, a fetus has moral status because the fetus is considered a person, or human being that is unjustly killed when aborted (Glover, 1977, p 120). This claim presumes a fetus to be a person from the start of conception because the chromosomes have fused together, and the fetus has the potential to develop its own unique identity since nothing new will be added or taken away genetically, allowing the physical organism to develop into a person (Herring, 2014, p 321).

There has yet to be any uncontroversial acceptance as to when a fetus (or potential human being) should be considered an actual human being. Some argue that the boundary should be set at a later threshold when key anatomical components have emerged in the fetus (Glover, 1977, p 121). It is difficult to see how this form of debate can be resolved. Even if we concede that the fetus is a human being, it is difficult to justify its status simply based on its properties without invoking its potential as a human being. Glover points out, what gives the fetus a higher moral claim than animal life is its potential to develop “morally relevant properties which animals lack” (1977, p 121).  It is evident that the argument that a fetus is already a person does not get very far without invoking its potential to develop typical human characteristics, such as the ability to reason, use language, and so on.

  • Potential Personhood and the Fetus

The second claim, in favour of treating the fetus as a person from conception, argues that while at conception the fetus may not be a person, it has the potential to reach personhood (Herring, 2014, p 321). Opponents of abortion argue that by killing the fetus, we are depriving it of the future life they would have had (Herring, 2014, p 321). According to Christopher Nobbs, the greater likelihood for a fetus to reach personhood, the greater value a fetus holds (2007, p 240). Thus he assigns more value to allowing this argument to be more convincing for later-stage fetuses.

The argument based on the potential personhood of the fetus has not come without its critics. Mary Anne Warren argues that while the fetus is unarguably a biological human and has the capacity to develop into a person, it should not be considered human in a moral sense (1973, p 303). Even if the fetus has a right to life by virtue of being a potential person, this right does not override the right of the pregnant woman, an actual person, to obtain an abortion (Warren, 1973, p 303). Warren, in defining personhood, lists as essential features consciousness, reasoning, and the presence of self-concepts and self-awareness (Warren, 1973, p 303). Philosophically, at conception a fetus, for the most part, is unoccupied in the sense that it has no self-awareness or consciousness and therefore cannot be the same as a fully grown person (Napier, 2011, p. 67). Without consciousness or awareness, a fetus cannot attain full moral status or rights because it cannot make a claim upon others, and is similar to a sperm or an unfertilized egg which has the potential to develop into an embryo or a fetus (Warren, 1973, p 304). Invariably, taking the potentiality argument to its uppermost limits would dictate that the practice of abstinence deprives someone of potentially becoming a person (Savulescu, 2002).

Whether it is wrong to deprive an individual of a future in which they have no awareness is arguable. McMahon has argued that it would be worse to kill a human being with a self-conscious future than to kill someone that does not have the capacity for one (2002, p 82). This suggests that while it still may be wrong to kill a fetus, it is not as wrong as killing an adult human being (McMahon, 2002, p 82). Since the fetus is not self-aware of its future it cannot be significantly harmed by being aborted.  Regarding the moral status of the fetus, he distinguishes between two senses of potential:  potential- identity-preserving potential (IPP) and non-identity-preserving potential (NIPP) (McMahon, 2002). IPP involves two phases of a developing human being where the fetus and the new born infant (neonate) exist along a continuum of developmental stages. NIPP describes the fetus and neonate as two distinct individuals. In IPP the potential is noted to be intrinsic and recognized from within the fetus (McMahon, 2002).  In NIPP, also focusing on the fetus, the potential is extrinsic because it requires certain factors to be recognized by others. For McMahon, only intrinsic potential, IPP, can allow a fetus to gain moral status and an interest for living that would make it wrong to abort. Any potential the fetus has would be considered NIPP due to the fact it cannot become a neonate without drastic changes to its properties (McMahon, 2002). Since potential can be recognized with the fetus becoming an infant the realization of its potential becomes IPP allowing it to gain an interest in living and a moral claim for a right to life because of its developed brain structures. With this reasoning, a fetus cannot have an interest in living and therefore its moral claims are of lesser strength than that of a woman’s choice to abort a fetus.

  • The Fetus and Viability

Another view argues that the fetus develops moral status and becomes a person at viability, which occurs at around 22-weeks gestation (Herring, 2014, p 323). For some, the notion of viability is a highly important factor and n marks a transition from the fetus being entirely dependent on another being for survival to being capable of independence and separation from the mother. For Elizabeth Wicks, the fetus has reached a point in which “there is integrative function of a human organism” in which the nervous system is able to process and interpret sensory input (ie. Sense of touch) (2010, p 78).  This view, however, is not without its critics, as viability is not guaranteed if the fetus is born prematurely.

Because viability depends on a number of factors, such as the presence of medical technologies, it should not be used as an objective standard for granting moral status to the fetus. This has led some to argue that the moment a fetus becomes a person can be dependant on where in the world the mother is living (Herring, 2012, p 224). In such, that a premature fetus has a higher likelihood of viability in the United Kingdom compared to many developing countries. By using this arbitrary point is to imply that viability is dependant on technological advancements in medicine and that there can be multiple points of viability a concept that breaks down the viability argument in the sense it is less clear as to when viability begins. With new fetal-life saving medical technologies, the point of viability varies across jurisdictions, thus creating new ethical dilemmas leading some to ask whether a woman has the right to kill or stop the treatment of a premature fetus that is outside her body.

  • The Fetus Becomes a Person at Birth

For some, birth is considered to be the natural moment in which the fetus acquires the status of a person by coming into existence (Herring, 2014, p 325). It is in this moment that the fetus becomes completely separate from its mother and is able to survive outside the woman. There are others who claim that birth is an arbitrary point in that the only significant difference is that of the relationship between the mother and fetus. One example often cited is the difference between a fetus born at 30-weeks and kept in an incubator and a 30-week old fetus that has yet to be born (Herring, 2014, p 325). It is quite evident that the fetus cannot be considered a living person before viability because it is unable to survive on its own without the assistance of advanced medical equipment. Aside from a few impulsive movements, such as kicking, a fetus exhibits no active memory, no personality, and no established self in the eyes of society. The fetus currently resides in the womb of the woman, never having seen or breathed outside of the womb. Comparatively, a baby has entered the world and has interacted with a variety of people and is able to develop a relationship with those around it.

For some, the occasion of birth brings not only a significant change to the relationship between the mother and baby, but also society in general, thereby altering the legal and moral status of the fetus (Herring, 2011, p 325). Until the fetus is a separate entity from the woman and able to breathe oxygen on its own, the fetus does not warrant the full moral standing of a birthed person and therefore cannot make claims upon a woman’s bodily integrity.

Competing Interests Between a Mother and Fetus

The assertion that the fetus is a person can have a potentially large impact on the rights of pregnant women. Fetuses are distinctly different from living human beings, largely because of their total dependence on the woman’s body to survive. For a pregnant woman, to allow a pregnancy to continue is ultimately a personal decision that will have an impact on the rest of her life. Unlike a baby that can depend on a variety of people to be cared for, during pregnancy the fetus both depends on and resides in the woman’s body for survival. One cannot gain the status of personhood and have separate interests by virtue of living in the woman’s body. A pregnant woman’s right to autonomy outweighs all rights that may be claimed by the fetus. It is undeniable that a fetus is alive and is, admittedly, genetically distinct, though this generalization can be applied to a variety of living things such as a worm (Herring, 2014).  The potentiality argument is weak: just as selling eggs at the grocery store removes the potential of the eggs to grow into fully grown chickens, the potential personhood of the fetus is not equivalent to actual personhood.

For Judith Jarvis Thomson, there is an important distinction between negative and positive rights that are attributed to a human being considered to be part of the moral community (Thompson, 1971). A negative right, such as the right to not be killed or the right to control one’s own body, generally requires others to not interfere with the expression of that particular right. In contrast, a positive right requires others to facilitate or support the expression of that right through providing a good or service, as positive rights are grounded in consensual arrangements (“Positive rights vs. negative rights”, n.d.). In theory, if we are free and equal beings, negative rights will outweigh positive rights because they carry more moral weight than a right to be benefitted, such as the case of a fetus using the woman’s body. The negative rights of the pregnant woman entail not only being free of the burden of carrying a fetus for nine months, but also the right to not take on the risks, such as health or economic risks, that come with being pregnant. Therefore, the pregnant woman has a right to not allow the use of her body for a developing fetus. In comparison, the fetus’ presumed claim to the right to life as well as the right to use the woman’s body are considered positive rights. Because, in unwanted pregnancy, these positive rights threaten the woman’s right to bodily non-interference (a negative right), and negative rights trump positive rights, the fetus has no moral claims that can override a woman’s right to abort (Thompson, 1971).

Evidently, there is competition between the rights of the pregnant woman and the value of the developing fetus (Sherwin, cited in Munson, 1996, p.94). Susan Sherwin, through a feminist perspective, argues that “there are other accounts of fetal value that are more plausible and less oppressive to the lives of women” (Sherwin, cited in Munson, 1996, p.94). As the fetus is developing in the woman’s body, the value of the fetus is noted to be relational rather than absolute (Sherwin, cited in Munson, 1996, p.95). The feminist perspective argues that what is valued most about persons is not their mere existence, whether it be in the womb, but personality (Sherwin, cited in Munson, 1996, p.pg 96). Fetuses cannot be viewed as having moral significance because they have not yet developed sufficient social relationships (Sherwin, cited in Munson, 1996, p.96). Instead of rejecting the value of the fetus, Sherwin’s argument is convincing because the value of the fetus should be relational to woman who is carrying it as the fetus has yet to form any social connections to the outside world as defined by the nature of personhood (Sherwin, cited in Munson, 1996, p.96).  Because the fetus is both within and dependent on another being, the ability and responsibility of determining both its moral status and value should lie within the woman (a person with full moral status) to decide.

A Defence for Abortion

Even if the fetus is to be viewed as a person deemed to have a right to life, it does not follow that the act of abortion is impermissible. Opponents of abortion make the assumption that a fetus is a person and therefore has a claim for a right to life (one of the most fundamental rights a person can have) and claim to use the woman’s body. This begs the question of what the right to life consist of.  Some argue that this right entails an obligation to be given “at least the bare minimum” one needs in order to live (“The ethics of abortion”, n.d.). Notably, Thompson argues that the fetus’ right to life does not include a right to use the pregnant woman’s body and that the right to life is misunderstood by opponents of abortion as implying the right to this bare minimum (Thompson, 1971).

To illustrate her argument and test our moral intuition Thompson asks us to consider a hypothetical scenario in which a famous unconscious violinist develops a kidney disorder and can only survive if connected to the kidneys of someone else (Thompson, 1971). She tells us to suppose the individual has a rare blood type which only you are known to have.  One morning you wake up to discover (without your knowledge) that the two of you are attached. By choosing to unplug yourself the individual will die and, alternatively, if you remain attached you will do so for the next nine months. Thompson assumes for the sake of argument that the fetus is a person with rights and explores whether or not their rights would outweigh those of the woman.

Since most people would think you have a right to detach yourself, the case illustrates that no one is morally required to make such a large sacrifice in order to keep another being alive (Thompson, 1971). The violinist has no right against you that would entail you having an obligation to give them the continued use of your body for nine months. Allowing a fetus to use the woman’s body to develop to full term would impose a large burden on her and no woman is morally required to accept this. As Thompson maintains, the only way the violinist could have a right to use your body is if you decided through your own free will to give them the continued permission to use your body. Similarly, a fetus has no right to use a woman’s body if she has not given it permission to do this.  The fetus would benefit from the woman allowing it to use her body but is in no way owed this as there is no moral obligation to be what Thompson calls a “Good Samaritan” (Thompson, 1971). If the pregnant woman is not willing to keep the fetus attached to her body, then she is permitted to separate herself from the fetus through abortion and this does not violate the fetus’ right to life.

The case of the violinist is analogous to a scenario in which pregnancy arises out of rape and can only be used to support the view that it is morally permissible to terminate a pregnancy due to the specific case of rape (Glannon, 2005). Some argue that if a woman voluntarily engages in sexual intercourse knowing that pregnancy could occur, she is morally obligated to continue the pregnancy. This essay will not be addressing the issue of responsibility, but makes the point that in order to assume abortion is morally wrong, it needs to be shown that the fetus “has a moral right to the means it needs to gain its future or that a woman lacks a moral right to control her blood and womb” (Sinnott-Armstrong, 1997, p.70). In defense of this, following the Good Samaritans argument is that as humans we are not typically obligated to continue to help others survive, even if we initially agreed to help. As such, we can opt-out of continuing to be Good Samaritans. In order for the fetus’ moral claims to override the mother’s, the fetus would have to show that its loss would be so “grossly disproportionate” that it would be considered morally wrong for the mother to refuse to allow it the continued use of her body, which is not a minor loss for the mother (Sinnott-Armstrong, 1997, p 67).

Conclusion

There is an abundance of philosophical literature debating whether or not the fetus should be seen as a person at conception or at any point along the continuum of the woman’s pregnancy. Ultimately, the moral status of the fetus is a topic of subjective opinion and the opinion of the pregnant woman should have the utmost priority in determining whether she allows another being to use her body.  Opponents of abortion need to show that not only that the fetus has a moral claim to the means it requires to come to term, but also that its rights, particularly the right to life and the right to use the body of the mother, override the rights of the woman. This essay has argued that the moral status of the fetus has been a highly contested issue in which philosophy and science have yet to come to a consensus that a fetus is indeed a person with full moral claims. Society should give the benefit of the doubt to the pregnant woman, whom women are indisputably human beings with stronger moral claims than any potential ones of the fetus. In conclusion, even if the fetus does have some prima facie right to life, the rights of the pregnant woman cannot be outweighed by any potential claims of the fetus because the rights of an actual person outweigh the rights of a potential being.

 

 

 

Works Cited:

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Herring, J., (2012). Medical law and ethics (4th edition). Oxford: Oxford University Press.

 

Herring, J., (2014). Medical law and ethics (5th edition). Oxford: Oxford University Press.

 

Jackson, E., (2001) Regulating reproduction: law, technology and autonomy Oxford, UK: Hart Publishing.

 

Jaworska, A. & Tannenbaum, J., (2013). “The grounds of moral status”. Stanford Encyclopedia of Philosophy. Retrieved from http://plato.stanford.edu/entries/grounds-moral-status/

 

McMahon, J., (2002). The ethics of killing: Problems at the margins of life. Oxford, UK: Oxford University Press.

 

Napier, S. E. ,(2011). Persons, moral worth, and embryos: A critical analysis of pro-choice arguments. Dordrecht: Springer.

 

Nobbs, C., (2007). Probability Potentiality. Cambridge Quarterly of Healthcare Ethics,16 (2):240-247. Doi: 10.1017/S0963180107070260

 

“Positive rights vs. negative rights”. Learn Liberty, (n.d.). Retrieved from http://www.learnliberty.org/videos/positive-rights-vs-negative-rights/

 

Savulescu, J (2002). Abortion, embryo destruction and the future value argument. Journal of Medical Ethics 28(3), 133-135.

 

Sherwin, S., (1996). Abortion through a feminist ethics lens. Cited in R. Munson, Intervention and Reflection Basic Issues in Medical Ethics (5th ed.). (pp.93-97). Toronto: Wadsworth Publishing Company.

 

Sinnott- Armstrong, W., (1997). You can’t lose what you never had: A reply to Marquis on Abortion. Philosophical Studies, 96: 59-72. Retrieved from http://sites.duke.edu/wsa/papers/files/2011/05/Reply-to-Marquis-on-Abortion.pdf

 

“The ethics of abortion”, Sacromento State University, (n.d.). Retrieved from http://www.csus.edu/indiv/g/gaskilld/ethics/Abortion.htm

 

Thompson, J.J., (1971). “A defence of abortion”. Philosophy and Public Affairs 1: 47-66. Retrieved from http://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm.

Warren, M.A., (1973) On the Moral and Legal Status of Abortion. The Monist, 57(4). Part II reprinted, with postscript, in The Problem of Abortion, 1984, Joel Feinberg, ed., Belmont: Wadsworth. Retrieved from http://www.douglasficek.com/teaching/phil-2222/warren.pdf

Wicks, E. (2010). The right to life and conflicting interests. Oxford, UK: Oxford University Press.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Background Research

Boonin, D., (2002) A defense of abortion. New York: Cambridge University Press.

Finnis, J., (Winter 1973). The rights and wrongs of abortion: A reply to Judith Thomson. Philosophy & Public Affairs, 2(2) pp 117-145. Retrieved from http://www.jstor.org/stable/2265137?seq=1#page_scan_tab_contents

Lockwood, M., (1985) When does a life begin?. Moral Dilemma in Medicine. Retrieved from https://keats.kcl.ac.uk/pluginfile.php/1331573/mod_resource/content/1/S2_W1_Lockwood.pdf

Marquis, D., (1989), “Why Abortion is Immoral,” The Journal of Philosophy, 86: 183–202.

Savulescu, J., (2002) Is there a “right not to be born”? Reproductive decision making, options and the right to information. Archives of disease in Childhood-Fetal and Neonatal Edition 87(2), F72-74.

Sumner, L.W., (1981), Abortion and Moral Theory, Princeton: Princeton University Press.

Steinbock, B., (1992), Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, New York: Oxford University Press.

Tooley, M., (1972), “Abortion and Infanticide,” Philosophy and Public Affairs, 2: 37–65.

Warren, M.A., (1999) Moral Status: Obligation to persons and other living things. Oxford: Clarendon Press.

Wertheimer, R., (1971). Understanding the abortion argument. Philosophy and Public Affairs, 1(1) pp 67-95. Retrieved from https://keats.kcl.ac.uk/pluginfile.php/1331574/mod_resource/content/1/Week%201%20Wertheimer.pdf

Wilkins, B.T., (1993). “Does the Fetus Have a Right to Life?” Journal of Social Philosophy, 24: 123–137