Moral and Philosophical Arguments Against Fetal Personhood

Moral and Philosophical Arguments Against Fetal Personhood June 13, 2014

In preparation for a forthcoming article on attempts by right wing activists and legislatures to pass “fetal personhood amendments” that would outlaw abortion or limit abortion rights, Valerie Tarico, author of Trusting Doubt: A Former Evangelical Looks at Old Beliefs in a New Light, interviewed me about a number of philosophical issues related to the question of whether fetuses should metaphysically, morally, or legally be considered persons. It’s a long discussion. While I hope critics will follow the flow of the whole conversation for full context. I am providing a table of linked contents for skimmers to be able to find the sections of greatest interest to them.

Why Aren’t Personhood and Humanity Identical Concepts?
What Constitutes Personhood in Philosophy Beyond the Abortion Issue?
What Were Historical Philosophical and Legal Views on Life and the Unborn?
What Rights Do Potential and Future People Have?
Is Abortion Immoral Because The Point of Sex is Reproduction? (Responses to Catholic Natural Law Ethics)
Were The Unborn Persons, Would It Be Right To Outlaw Abortion?

Valerie Tarico: The Personhood USA website says, “Personhood is the cultural and legal recognition of the equal and unalienable rights of human beings,” which they take to mean from conception. As soon as an egg is fertilized, it has a unique full contingent of DNA, which starts replicating, so in their view it is a person. If personhood doesn’t mean human, then what does it mean?

Daniel Fincke: Think about the movie E.T. If an extraterrestrial comes down to earth and asks to use the phone, we shouldn’t say, “You’re not human, so instead of letting you use the phone, we’re just going to eat you.” If we are talking to an alien who has self-awareness, makes choices, has complex emotional experiences, plans future projects, has enduring memories, etc.; we recognize we’re talking to another person. Those traits, or some cluster of them, are the decisive features in personhood and yet they’re not conceptually identical with “humanity.” You can have a human that lacks them or a non-human that has them. So if you try to make personhood identical with humanity, you collapse a useful distinction and distort the language.

Valerie Tarico: It sounds like these definitive personhood attributes have to do with being able to think and feel, or being able to relate to others? Descartes said, “I think therefore I am.” This E.T. stuff sounds like, “I think, therefore I am a person.”

Daniel Fincke: Thinking is just one part of it. Personhood emerges through a large cluster of functional capacities that have as their minimal basis things like rationality, emotions, sociability, and self awareness. I would say these kinds of abilities are not just things we “have” as persons, but they constitute our very being itself. These powers define us and instantiate us. By that I mean that they are what make us what we are and that we only exist through their existing. When someone irrevocably loses all of her mental, emotional, social, and consciousness powers, she is effectively dead. The person is gone; even if her biological body can still be kept working. At that point we let the body go and we grieve the lost person.

Valerie Tarico: Some might accuse you of saying that if a person is less smart or social or something then they don’t count as much.

Daniel Fincke: Morally relevant personhood should be seen as a threshold concept. Merely performing rational functions without consciousness, for example, does not cross the threshold into personhood because then computers that lack sentience and self-awareness would be persons since they perform rational functions. That would make no sense. Or similarly, a given creature with a rudimentary brain might have rudimentary capacities for pain that make it averse to potential dangers, and yet lack all self-consciousness and be mentally indistinguishable and interchangeable with all other members of its species. In these sorts of cases, the minimal threshold of personhood is not even being met and so you don’t have a morally relevant person.

But at a certain threshold where the right cluster of traits are present and functioning at even minimally competent levels, there’s someone who counts morally. History makes clear it is crucial to consider all such persons morally equal. We are a social species and the empowerment of each of us depends on each other being willing to cooperate in the ways that make the social order successful. And we benefit so much from each other’s thriving that we have an inherent interest in making our default the maximum empowerment of as many people among us as possible. I also want to argue that we individually thrive the most when we use our powers to empower others. This is because we function through others’ excellences when we help to actualize them. Disempowering others as our net contribution means failing to actually create power in the world and, through that, to be powerful ourselves. Plus, being someone who disempowers rather than empowers others undermines the social trust we ourselves depend on. So does creating laws that treat some people as less than others.

Nothing good comes from deciding that those existing persons who are less actualized in their own potential, or who have less potential in the first place, are not entitled to our respect, compassion, cooperation, and other forms of moral consideration. Much good comes from helping each person to actualize her potential as much as possible.

Valerie Tarico: Is this a traditional way of thinking about personhood or a relatively new way of looking at things? Some folks might say that thinking like this is just an ad hoc way to justify abortions.

Daniel Fincke: Philosophically there are many independent reasons to formulate personhood this way. Thinking of personhood as a set of attributes and relationships goes back at least to John Locke during the Enlightenment. Many people intuitively accept the Lockean idea that a person just is their beliefs, memories, desires, feelings, conscious awareness, personal commitments, social relationships, and other distinguishing experiences.

If you told most people that they were going to have their minds wiped and suffer total amnesia, losing their beliefs, memories, desires, feelings, etc., many would consider this tantamount to being told they were going to die. They would say that even though their brain would go on, they would no longer be the same person. Going further, if after wiping out your defining thoughts, we replaced them with a stranger’sbeliefs, memories, desires, dispositions, etc., then who would be in your brain? Most people would say the other person would now be in your brain and not you. This is intuitive to us when we watch or read any number of fantasy stories involving body switching. Everyone in the audience accepts that it’s the thoughts of the person that make the person, rather than which body they happen to be in, when watching such movies. Or were someone to come to you and say they were a reincarnation of someone else, what would you check for to verify the claim? It’s simple: do they have the beliefs, memories, feelings, habits, attitudes, and behaviors of that other person? These things are definitive of who we are as unique individuals.

It is not even clear that you are the same person as you were at other stages of your personal development. Your 5 year old self was surely a person. But was she the same person as you are now? You have many vastly different beliefs, values, desires, feelings, memories, interests, dispositions, etc. Obviously, there are some real continuities with that 5 year old (your current body grew out of hers and your current mental life was influenced by her experiences in some ways that last through today). But apart from certain emotional attachments to particular people, places, and things, what is running through your head at any given moment is probably much more similar to another adult with a similar life to yours than to the thoughts and desires and attitudes of your 5 year old self. We’re not speaking entirely figuratively when we say of someone that they “have become a different person”.

And, along these lines, experiences shape the person we become so much that there are a number of different people that you could still become in your life if you go down different paths. We all close the door on numerous possible people we can make ourselves into whenever we do not absorb ourselves in the activities and relationships and experiences that would make us into them. A 5 year old could still wind up living any of a number of vastly different adult lives that would make her into any of a vast number of different people. Then to imagine a fetus, with no personality and lacking the mental capacities for anything like coherent personal experiences–how much less does it have determined about what person it will be than even the 5 year old.

Valerie Tarico: But is it new, at least, to say personhood starts after birth?

Daniel Fincke: Traditionally, people have simply been divided. The Roe v Wade opinion itself rather thoroughly and evenhandedly surveys the history of Western views on the unborn. The dominant view among Jews was that live birth was the beginning of life. Until the 19th Century even Catholics didn’t believe life began at conception but held to Aristotle’s view that there was “mediate animation” by which boys got souls 40 days after conception and girls got them 80 days after conception. In fact, conservative American evangelicals as recently as the ‘60s and ‘70s were conflicted about abortion. Randall Balmer writes:

Today, evangelicals make up the backbone of the pro-life movement, but it hasn’t always been so. Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

Christian blogger Fred Clark calls opposition to abortion “the ‘biblical view’ that’s younger than the Happy Meal” in his blog post detailing more about how just 4 short decades ago evangelical Christians, who claim to only believe what the Bible teaches, did not have anything like a settled consensus about what the Bible said about abortion, despite their current insistence that the Bible is absolutely against it.

In the ancient world, the Hippocratic Oath forbade abortion but both Plato (Republic, V, 461) and Aristotle (Politics, VII, 1335b 25) recommended abortion in some cases and the Stoics thought ensoulment happened at birth.

At least until the decades immediately preceding Roe, English and American common law and statutes legally had not tended to treat an abortion as a crime if it took place before “quickening” (the stage at which the pregnant woman can feel the fetus moving). Justice Blackmun summed up his examination of the historical record in his Roe opinion by concluding that it was

apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity [410 U.S. 113, 141] to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

So, in sum, it was not as though there was a traditional unanimity that the unborn were full and equal persons. It’s not as though abortion rights began with women’s lib in the ‘60s. Pro-choice attitudes are not some contemporary revision of traditional attitudes in order to accommodate the “selfish” desires of modern working women who want “convenience”. This resentful, reactionary, demonizing rhetoric aimed at disparaging empowered and autonomous women is revisionist. I see the Supreme Court’s ruling in Roe as, ironically, in many respects substantively conservative. With respect to the unborn, they preserved the traditional room for ambiguity and recognition of the need for a process to occur before a fertilized clump of cells can turn into someone with rights that trump others’ rights.

Valerie Tarico: The people who want fetal personhood believe that a fetus or even a fertilized egg has a soul. Of course, there’s still room for believers to argue about when exactly ensoulment happens–especially given that most fertilized eggs never even implant, and that at times one fertilized egg splits into two persons.

Daniel Fincke: This talk of fertilized eggs with souls is outdated and mostly worthless to contemporary philosophy of mind and neuroscience, which finds very little plausible, useful, or well-defined in the idea of an immaterial “soul” to begin with. The features of mind and personhood that make us into whole individuals are brain based. Without the adequately developed brain—and without the independent post-birth brain, at that—there’s just no mind there.

Valerie Tarico: Right, and as a psychologist, my understanding is that the individual person emerges through interaction between the organism and the environment. Without stimulation the human brain doesn’t form a mind; it simply atrophies.

Daniel Fincke: Exactly. We can also add that there is no such thing as a self that can be understood independent of an environment. A human person is constructed through myriad relationships to other people, institutions, activities, etc. Your self, your specific personhood, “happens” through all of these connections that co-constitute you as who you are. It does not exist as some self-subsistent reality all unto itself. It is the ever dynamic product of your interactions with other people and things. So to try to extract the self from the world and conceive of a person as “just existing”, independent of all these relationships, is to do violence to reality. It’s to talk about an empty and impossible abstraction.

Valerie Tarico: So are there any credible arguments against abortion that do not rely on smuggling in religious concepts like “souls”?

Daniel Fincke: The strongest secular argument I see for fetal personhood and moral rights would be something along the lines of Don Marquis’s Future Like Ours (FLO) Argument. The unborn will have a future like ours if they continue to mature on the path they are on. Eventually they will have the concerns we have; and so those concerns are morally relevant.

Here’s how I like to illustrate the force of this point. Say you turn 21 and find out that while you were in utero your grandparents put $1 million into a trust for you to receive on your 21st birthday. But your parents decided you weren’t a person at the time and so they stole the money. When you find this out as a 21 years old, you’re correctly going to feel like your parents wronged you more than 21 years ago, even though you weren’t a person at the time and you didn’t have any of the mental equipment to understand that you were being wronged or to feel any pain over it. When we destroy the future entitlements of potential people who will eventually exist, it does morally matter in some way.

Sometimes, it’s even extraordinarily significant. For example, the rights of future persons are reasons to morally disapprove of environmental degradation and unsustainable resource depletion. Even though future generations of humans don’t yet exist, we owe them something in our moral calculations. If we hasten the extinction of the species by our mistakes, or ruin the conditions of future people thriving, we have morally wronged billions of people even if they never exist to know about it or to feel aggrieved.

So the same should at least sometimes be applied to the unborn. We would blame a woman who knows about the dangers of alcohol in pregnancy but drinks heavily and causes fetal alcohol syndrome. The future personhood of the developing fetus is morally relevant – so at least in the cases where the fetus will develop into a child, embryo or fetus rights are real issues.

Valerie Tarico: This argument seems pretty tight. You are saying that a potential or future person has morally relevant interests even though the embryo or the fetus has no ability to consciously desire them. Why wouldn’t that rule out abortion?

Daniel Fincke: The problem to me is that mere possession of DNA or development to a merely fatal stage are still states of mere potential for a minimally realized functional person. And while every theoretically possible person has theoretical interests like ours, we cannot possibly go about bringing about all possible persons. DNA does not make for a specific person by itself. It has no distinctive memories, beliefs, values, or experiences of a person. It is not itself even the functional powers of a person that it could lead to. It’s essentially just the proteins that serve as the blueprint that can eventually make the actual person through a complex interaction with an environment. Your DNA is not yet you. Identical twins have the same DNA without being the same person. The same basic DNA protein blueprint, if developed separately, in interaction with any number of environmental factors (varying slightly or widely) could result in a huge number of effectively different people. You can go on forever making clones from the same DNA and each would be a distinct person.

And there are an infinite number of possible DNA plans that could lead to an infinite number of possible people, each with a Future Like Ours. We deprive countless possible people of the shot at existence whenever we simply don’t have sex. Or whenever we don’t have sex with a particular person. Or whenever we just have sex at 10:30pm instead of 11:30pm (and conceive the zygote that would happen by chance at 10:30pm but not the one that would have been made at 11:30pm.)

My parents wanted just one more child when they decided to conceive me. My mother miscarried before successfully having me. Then she got a tubal ligation. Had she not miscarried but had the other baby, I would never have existed. Would my mother have morally wronged me? Has she morally wronged a dozen more children she didn’t have? That seems absurd. What’s so morally different then about a woman who has two abortions, then two kids, and then ties her tubes, and another who has two kids and then ties her tubes? The net result is the same. They both create two people and prevent a dozen or so.

There is a possible person who could be conceived were a particular man and woman who hate each other to have sex right now. That possible person has an objective interest in those people mating right now. But that possible person, with no subjective awareness or investment in their possible life has no necessary moral claim to existence that should force those two people to have sex. Especially not when that possible person is just one among an infinite number of possible people that both of the people in that couple could conceive, either with each other or with billions of other potential partners, right now or in the future.

As a potential person, I would say the zygote does have an objectively ascertainable interest—which is to do the developmental things that would lead to becoming a human person. But a sperm or egg, as a living germ cell, has this same interest. So unless every female is having sex every time she is fertile, from puberty on, we will go against the interest of trillions of potential human beings.

If it is murder to not let every potential human exist, then what about the Catholic priest who is celibate? Or think about the Apostle Paul who suggested that anyone who could handle celibacy should prefer it to marriage. If not having every potential child is murder then celibates are all murderers. But Christianity doesn’t teach this because it is untenable.

Rebecca Kiessling argues that abortion should be illegal even in cases where conception happened through rape since her own mother became pregnant with her that way. Her argument boils down to saying she’s grateful to exist and she would not have existed were her mother to have aborted her on account of how she was conceived. While I understand Ms. Kiessling’s vicarious imagination of other embryos that are “as she was”, nonetheless, when a woman gives the fetus conceived through rape a chance to be born, she still chooses against allowing all the other people who could have been conceived were she not pregnant for those nine months a chance to live. Or if she does not have another child down the road because she already has enough, then that’s one more person who never grows up to talk about how grateful she is to exist.

So the examples are endless here. While possible and future people in general are morally relevant, morally accommodating all of them individually is impossible. And we all pick and choose among which potential people will ever have a chance to see the light of day, whether we have abortions or not. As the lucky ones to have grown into persons, it’s easy to project our current appreciation at being alive onto the embryo we came from and be tempted to think it’s only fair to let every embryo have the equal chance that ours did. But there’s no way to do that without ruling against other embryos coming about. We’d might as well never waste a sperm or an egg since we began that way too.

Valerie Tarico: I work on contraceptive access, so I know that both here and in the developing world, flourishing families tend to delay, space, and limit childbearing rather than producing the maximum number of kids. A thirty year study in Bangladesh showed that when families have access to contraception, then health, education, and prosperity increase for whole communities. By contrast, even here in the U.S. unintended pregnancy tends to leave people mired in poverty with poorer health and, for example, higher rates of criminal behavior. And even the Catholic Church allows for Fertility Awareness Methods or abstinence, so long as a the couple stays off birth control and so is in that way open to God giving them the gift of a baby every time they have sex.

Daniel Fincke: Right. The Catholic Church argues that using contraception is “intrinsically evil” because it tries to thwart “the” natural function of sex. But it’s hypocritical that the Church then says you can plan your family through Fertility Awareness Methods like the rhythm method. That also tries to thwart the natural reproductive function of sex. That also tries to stop the creation of potential humans with Futures Like Ours. The same is true of abstinence until marriage—unless you marry off girls as soon as they start menstruating. The same is true of the celibacy celebrated by St. Paul and mandated for priests.

In matters of sex, Catholic Natural Law ethics generally demonstrates a myopic view of nature and a misunderstanding of its ideal input into our ethics. There’s no doubt that we evolved our sexual capacities and our strong desires for sex because they were so vitally valuable as means of reproduction and, with it, the indispensable perpetuation of the species that makes it so we can be here today. Reproduction is an important part of sex. Reproduction is essential to future human thriving. So it’s important that reproduction at least sometimes be part of what we use sex for. But it’s not all there is to sex and it’s not all there is to humanity. When thinking about how to thrive as humans and looking at our various body parts and mental abilities, we need to ask ourselves not just “what valuable function did this trait serve such that it wound up naturally selected as one of our traits?”, we need, much more importantly, to ask, what does it mean to thrive with respect to this ability that we have?

For example, the kinds of mathematical reasoning we needed in the wild, which led to our having mathematical potential at all, must have been of the most rudimentary kind. Clearly the standards for thriving in mathematics are not limited by the minimal mathematical needs or abilities that led our mathematical aptitude to evolve in the first place. Mathematical excellence is definable in mathematical terms. There are intrinsic standards for how to realize our mathematical abilities to their highest degree. And it constitutes a real kind of human thriving to excel mathematically, according to the mathematics’ own standards. It also is a real kind of human thriving to put mathematics to use for science and technology and social planning and a myriad of other pursuits of value to us that go well beyond our wild ancestors’ wildest dreams.

And so it is with all our abilities and traits. They have standards of realization that go well beyond the conditions for their having been initially naturally selected. It means that we can fulfill our sexuality in ways that go beyond merely the reproductive purpose that bequeathed them to us. We can fulfill our sexual abilities to express love, to give and feel pleasure, to create intimacy, etc. These are excellent fulfillments of our powers on their own terms, even when we are thwarting our genitals’ potential for reproduction. What ultimately matters is that we thrive as whole persons and whole societies, fulfilled as much as possible in our powers, and sex contributes to that in a number of ways beyond just by making us into parents. We shouldn’t be forced to have children (or forced to be “open to the possibility of children” as the Church puts it) in order to gain all the other benefits of expressing ourselves sexually. We shouldn’t have to foreswear the benefits of sexual expression just because we’re not ready for children or don’t have the means to support more or would be endangered physically by a pregnancy, or for any of a number of reasons we don’t want to have a baby in the immediate future (or ever). We are more important than our genitals. Our full thriving in emotional relationships and in potential for pleasure are objectively and naturally more important for us than our genitals getting a full shot to produce as many babies as they possibly can.

We no longer live in the wild. We are not at risk for extinction on account of a failure to reproduce sufficiently. In fact, in modern times overpopulation and strains on limited resources are the threat to the species.

And in the developed world, we no longer live with tragically high infant mortality rates that require us to produce more and more children if we want to be guaranteed some that grow up past 5. Personal experience and empirical studies like the ones you noted, Valerie, make it so that most couples realize family planning improves health, wellbeing, and flourishing for everyone, from children to parents. Worldwide, we see that a birth rate closer to replacement level correlates with economic prosperity. When infant mortality goes down the birth rate plummets after, since families are less desperate to have as many kids as possible. Even 90% of Catholics report having used birth control at some point.

It is important to understand nature and what functions our various traits and abilities evolved to serve, but it is foolish to be slaves to nature. Ironically, it is conservative religious people who regularly disparage sexually promiscuous (and even serially monogamous) people as following their so-called “animal desires”. Meanwhile these same conservative religious people are also those most likely to want all of sex to revolve around the basic animal function of reproduction rather than, fundamentally, around people’s abilities to have sex that is emotionally, socially, and spiritually enriching, and which fits into lives in which both women and the children they choose to have can fulfill themselves as much as possible in the distinctly human achievements that other animals can’t have. Those who oppose contraception and abortion essentially want us to subordinate women’s entire life plans to the one role they share with every other animal, reproduction, and risk sacrificing everything else (even their very lives possibly) to it. That is the truly animalizing way of conceiving of sex, if you ask me. And it’s disproportionately harmful to just one of the two sexes too, I might add.

Valerie Tarico: Do you think that if all these arguments were to be rejected and zygotes, embryos, and fetuses were seen to be persons that that would settle the issue in favor of the anti-abortion side?

Daniel Fincke: No, because, as Judith Jarvis Thomson famously argued in 1971, even if a zygote, embryo, or fetus has a right to life, that doesn’t automatically give it the right to someone else’s body in order to exercise that right to life. Imagine that the Society for Music Lovers drugs you, kidnaps you, and sticks tubes in you so an unconscious violinist can use your organs for nine bedridden months of your life, in order to live. Let’s say there are no two ways about it—unhooking yourself will result in his dying. In the first place, very few people would think the Society for Music Lovers has the moral right to kidnap you and hook you up to this violinist in order to save his life. As is, we do not force people to donate their organs or undergo other dangerous medical procedures that could save other people’s lives. So, does the situation change after you’ve been hooked up to him? Before being hooked up to him you could have declined and you would have let him die. After you are involuntarily hooked up to him, is it any morally different to unplug yourself and let him die that way? Thomson argues it isn’t.

She argues that your right to bodily autonomy entails you can unplug yourself from the violinist even though he is a person with a right to life. She thinks that it’s a simple extension of our intuitions by which we already don’t force organ donations even though we know full well that many people, each with an unambiguous right to life, will die. Why? Because rights of bodily autonomy trump. Applying the logic to abortion she argues that an involuntarily pregnant woman has the right to refuse to let her body be used by the fetus even were we to reason that the fetus has a right to life.

People die every day for lack of organs. There are surely enough pro-life people in the world to keep all these people alive through donations every time one is needed. Why aren’t pro-lifers donating at heroic rates? They seem to understand the limits of this moral duty to save everyone who has a right to life when doing so involves personal bodily risk and sacrifice.

Your Thoughts?

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