Interests in Abortion

A New Perspective on Foetal Potential and the Abortion Debate

Tracie Martin

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351789622
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

This title was first published 2000: Ever since Michael Tooley published his article on "Abortion and Infanticide" in 1972, the abortion debate has revolved around questions such as: "What is a person?"; "What is it that gives persons the right to life?"; and "Is it wrong to kill potential persons?" This study defends a position that accepts elements from both the liberal and conservative tradition. Following Tooley, Tracie Martin understands personhood in terms of psychological states and agrees that early foetuses who lack the relevant mental states are not persons. While this might seem a victory for the liberal tradition, Martin then goes on to provide an empirically-based argument for the view that by 24-weeks gestation foetuses have acquired the relevant characteristics that provide strong grounds for thinking that it is directly wrong to kill such foetuses.

1 Introduction

Advancing a moderate position on abortion can be likened to opening oneself to attack on all fronts. Those theorists who hold a conservative view on abortion may respond to a moderate position by claiming that a human foetus has a right to continued existence from the moment of conception, or at least from the point of individuation onwards; and that the killing of any human foetus is therefore intrinsically wrong. Such a line of argument often rests on the claim that there is a continuum of foetal development, such that selecting a point along that continuum as a marker of moral standing is merely to make an arbitrary, and thus unjustifiable distinction. Conversely, those theorists who hold a liberal view on abortion may respond to a moderate position by claiming that there is no justifiable basis with which to grant a right to continued existence to a foetus at any stage of its development. And, that without such a right there can be no intrinsic wrongness associated with the killing of a foetus no matter how far advanced the pregnancy may be. Such an argument may well rest on the claim that a right to continued existence is a result of a being’s self-awareness, and that as no human foetus is self-aware no human foetus has a right to continued existence that is overridden if it is aborted. Furthermore, some feminist theorists would continue, even if it were the case that human foetuses did have an interest in continued existence, a woman’s right to control what happens in and to her own body is a fundamental human right that ought to take precedence over any rights attributable to the unborn human foetus.¹ In response to claims such as these, the arguments developed within these pages are aimed at providing a philosophically sound justification for a moderate position on abortion.

The position on abortion put forward here will not, however, rest on any of the commonly discussed markers such as foetal quickening or viability, which have been successfully challenged on many previous occasions.² Rather, the argument will ultimately rest on empirically testable claims concerning the human foetus’s psychological development. I will argue that a human foetus’s psychological development is such that it gives rise to a morally relevant form of potential prior to the foetus’s birth, and that abortion is prima facie wrong from the time the foetus possesses such a potential.

Underlying this claim is the belief that what is important about a being - what is significant in determining how it ought to be treated - is its psychological capacities. As such, the argument presented will, to a large degree, revolve around Tooley’s discussion of abortion and potential personhood.³ It will be argued that whilst Tooley’s understanding of personhood is acceptable, it is too narrow to encompass the full range of beings that can possess a right to continued existence. More specifically, I will claim that whilst Tooley is correct to say that a person is definable on the basis of his/her psychological states, his claim that only past or presently exercised psychological states are morally relevant in the ascription of an interest in continued existence is incorrect: the capacity to experience such states in the future is, I will argue, also relevant. This being so, I will go on to show that not only can actual persons possess a right to continued existence, but potential persons: that is, beings which possess an active potential to become persons, can also possess a right to continue to exist. In which case, if it can be shown that human foetuses at some point in their development come to possess an active potential to become persons, it will simultaneously be shown that human foetuses can possess an interest in continued existence. And, if human foetuses, at some point in their development, come to have an interest in continued existence, then the abortion and consequent death of any such foetus is prima facie wrong.

To this end, I will begin my discussion by addressing Tooley’s claim that no human foetus can have a right to continued existence based on its potential personhood, because no human foetus can have an active potential to become a person. If this were so, if Tooley were correct in his claim that the human foetus’s potential is not a fully active potential, then the power to become a person would not be found solely within the foetus. And, if additional morally significant external factors were necessary in order for a foetus to become a person, then Tooley would be correct to conclude that there is no basis on which to ascribe a right to continued existence to a foetus. It is my belief, however, that Tooley is incorrect in this. It will be argued in the next chapter that any physiological dependencies a human foetus has may also be present in actual persons in some instances, and that the presence of these dependencies does not alter an actual person’s moral status. So long as a being possesses the psychological capacities definitive of persons, its physiological requirements do not affect its moral standing as a person. The same, I will argue, is true in the case of human foetuses.

The morally relevant causal factors that are necessary for a being to be classified as a potential person are psychological factors; as such they are unaffected by the being’s dependence on another for the meeting of its physiological needs. So long as the morally relevant causal factors required for potential personhood are only psychological in nature, and so long as a human foetus has within itself all of the morally relevant factors which are necessary for potential personhood, its physiological dependence on the external world is irrelevant to the determination of its moral status.

Chapters Three and Four will then investigate the possibility that a human foetus possesses all of the morally relevant causal factors that are identified in Chapter Two as necessary for a being to have an active potential to become a person. To this end the physiological and psychological development of the human foetus will be closely examined. It will be argued that on the basis of the information we currently possess concerning a human foetus’s development, it appears that a human foetus acquires an active potential to become a person at approximately 24 weeks of development. It will be my contention that the human foetus’s potential to become a person is transformed at this time from a previously latent potential to become a person, to an active potential to become a person.

Chapter Five will address the issue of personal identity. For an argument from potential to succeed it must be the case that the potential person and the actual person are the very same being. I will show, in this chapter, that not only does a post-24-week-old human foetus have an active potential to become a person, it also shares at least a weak version of Parfit’s Relation R with the person it becomes. I will then argue that a weak version of Relation R is sufficient for a human foetus to be the very same enduring subject of experiences as the person it becomes. And, that as the foetus and the person it becomes are the very same enduring subject of experiences, the rights of the actual person are attributable to the post-24-week-old foetus. This being so, I will argue, it is prima facie wrong to destroy a human foetus from 24 weeks of development onwards. Having made the claim that it is prima facie wrong to destroy the post-24-week-old foetus in Chapter Five, I will turn, in Chapter Six, to look more closely at Tooley’s claim that only actual persons can possess a right to continued existence. It will be my contention that Tooley has not put forward a convincing case for limiting the right to continued existence to actual persons.

Finally, in Chapter Seven I will discuss Tooley’s claim that it can be no more wrong to destroy a potential person, than it is wrong to fail to actualise a possible person. If Tooley were correct in this claim, it would follow that one could not coherently assert that it was wrong to abort a healthy post-24-week-old human foetus, without accepting that it was equally wrong to fail to conceive such a foetus. Tooley’s argument at this point is only plausible though if one accepts that there are no morally significant differences between potential and possible persons. If this were so, then it would indeed seem to follow that failing to actualise possible persons and destroying potential persons were morally equivalent acts. But, I will argue, if post-24-week-old human foetuses have an interest in continued existence on the basis of their being the same enduring subject of experience as the persons they will become, then potential persons and possible persons are not morally equivalent beings. In which case, Tooley’s application of the Principle of Moral Symmetry to a pair of cases, one of which is a potential person, the other of which is a possible person is misleading. There is no symmetry between the two cases, and hence one can clearly differentiate between the moral significance of destroying one and failing to actualise the other. This being so, I will go on to say, there is no inconsistency to be found in supporting the argument from potential presented here, whilst denying that it is wrong to fail to actualise possible persons.

Following this I will look at the overall consequences of the argument developed in the first seven chapters. Firstly, I will argue that as the human embryo neither manifests the psychological capacities of an actual person, nor has an active potential to become a person, it cannot be the holder of an interest in continued existence. The human embryo is neither a being with the capacity to experience its world, nor a being that is psychologically continuous with the person it one day becomes. Consequently, to abort a human embryo is not to destroy a being with a right to life. Similarly, I will argue that arguments against IVF and embryo experimentation that are based on an argument from potential also fail.

Secondly, I will look directly at the issue of abortion. Abortion, as it is now practised, I will claim, is in many cases a direct infringement of the foetal interests considered in previous chapters. Current abortion practices, therefore, should in many cases be replaced with procedures that take both the mother’s and the foetus’s interests into consideration. And, if this were the case, even if sufficient justification could be provided in specific cases to warrant the over-riding of a post-24-week-old foetus’s interest in continuing to exist, its capacity to suffer would make the causing of its death in a painful way morally wrong in the vast majority of cases. Moreover, similar consequences may also follow from an acknowledgment of a pre-24-week-old foetus’s interests.

Finally, I will address the conflict that can potentially arise between a foetus’s and its mother’s interests, and the consequent issues that have to be considered in the determination of whether an abortion is the right thing to do in a given set of circumstances. The inevitability that such conflicts will occasionally arise does not, I will argue, detract from the argument presented in the body of this discussion. While there may well be times in which a woman’s interests will justifiably override a foetus’s interests, the possibility that the foetus could suffer greatly in our efforts to preserve the mother’s life should not be allowed to become an obsolete consideration: at such times our desire to minimise suffering ought to give us reason to pause and reflect on the interests of all concerned – including those of the unborn.

Notes

¹ See, for example, Judith Jarvis Thompson (1971) ‘A Defence of Abortion’, pp. 47-66 of Philosophy and Public Affairs, 1 (1).

² See, for instance, Peter Singer (1993) Practical Ethics (2^nd Ed), Cambridge University Press, Cambridge.

³ It should be noted at this point that the term “personhood” will be used throughout this paper as a moral term, not merely as a term denoting membership of the species Homo Sapien. Michael Tooley (1983) Abortion and Infanticide, Clarendon Press, Oxford. Although there are other theorists who hold positions similar to that of Tooley (see Singer, ibid. for example), Tooley’s discussion of the issues involved in support of the claim that potential personhood is not morally relevant is perhaps the most comprehensively developed.

2 Potential and Physical Dependence

Types of Potential

A common response to an argument from potential is to ask why a human foetus’s potential to become a person is morally significant, while the potential of an unfertilised ovum to become a person is not morally significant. The answer lies in the fundamental distinction between the types of potential each of these entities possesses. In the case of the human foetus the potential possessed is a potential to become, whilst in the case of the ovum there is only a potential to produce. And, as Buckle pointed out, the reason why this is a morally relevant distinction is because “the process of actualising the potential to become preserves some form of individual identity…[while the] potential to produce…does not require any form of identity to be preserved”.¹ Another way to put this same distinction is in Tooley’s terms of active, latent, and passive potential.

Tooley’s explanation of active potential corresponds closely with Buckle’s view of the “potential to become”, which Buckle defines as “the power possessed by an entity to undergo changes which are changes to itself …to undergo growth or better still development”.² Active potential is in many ways similar to this. In Tooley’s words:

An entity may be said to have an active potential for acquiring some property P if there are within it all of the positive causal factors needed to bring it about that it will acquire property P, and there are no other factors present within it that will block the action of the positive ones.³

Tooley’s focus on “positive causal factors” in this definition is significant and requires further investigation. However, given the complexity of the causality debate, and the space that would be required to do justice to that debate, only a general understanding of the term can be provided here. For the sake of this discussion the positive causal factors of personhood will be understood to be those positive factors that must necessarily be present for the manifestation of personhood, and that if absent will prevent the manifestation of personhood.⁴ Some examples may serve to make the meaning of this concept clearer. They will also serve to highlight why it is that I believe Tooley’s conception of “positive causal factors” to be too broad a category to be relevant to the potentiality debate.

If one considers an apple tree seedling and the positive causal factors required for it to become an adult fruit-bearing tree, one would, given Tooley’s use of “positive causal factors”, list not only the genetic make-up and internal physiology of the seedling, but also the external factors required to ensure an adequate supply of nutrients and therefore growth – water, sunshine, oxygen, and so on – as positive causal factors that are necessary for the seedling to develop into an adult tree.

While such an exposition would be detailed, it has the potential to continue almost indefinitely. As Mackie said:

…it is impossible, without including in the cause the whole environment, the whole state of the universe (and so excluding any likelihood of repetition), to find a generally sufficient condition, one which is “by itself” adequate to secure the effect.⁵

A line must therefore be drawn between those factors which are central to the issue at hand, and those that are extraneous. A listing of the positive causal factors related to the development of a seedling into an adult tree, for example, that was as inclusive as that pointed to by Mackie would severely limit the cases it is applicable too. Furthermore, it would con...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Acknowledgments
• 1 Introduction
• 2 Potential and Physical Dependence
• 3 Foetal Physiology and Active Potential
• 4 Active Potential and Foetal Psychology
• 5 Personal Identity and the Human Foetus
• 6 Potential Persons and Interests
• 7 Moral Asymmetry
• 8 The Practical Consequences
• 9 Conclusion
• Bibliography
• Index