Ontological and Moral Status of the Fetus

The question of the ontological status of the fetus can be teased apart from the question of moral status, but in the abortion debate, fetal personhood and the possession of moral rights are often assumed to go hand in hand. The term person, however, is ambiguous, having a legal, a descriptive, and a normative sense. To be a legal person is simply to possess legal rights. In Roe v. Wade (1973), the Supreme Court held that fetuses are not persons as defined by the 14th Amendment of the Constitution, but declined to offer a positive thesis on personhood, acknowledging the difficulty of doing so. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer" (Roe v. Wade, 1973). To say that something is a descriptive person is just to say that it satisfies certain criteria of personhood, such as species membership. The claim that a fetus is a person in this sense does nothing to justify the claim that killing a fetus is morally wrong unless the fetus also qualifies as a person in the normative sense. Being a person normatively speaking means being a bearer of moral rights, including the right to life. The crucial question of fetal or embryonic personhood, as it relates to abortion, then, is whether and when the genetically human, living entity resulting from the fertilization of an ovum by a spermatozoon is a normative person, a possessor of rights. There is, however, no more consensus on the proper criteria for personhood, and whether or not fetuses can satisfy these criteria, than there is on abortion.

At one extreme of the personhood debate is the position that personhood begins at fertilization, so even very early embryos, composed of only a few cells, are persons. At the other extreme is the view that personhood does not begin until birth or even later, and so no fetus, and perhaps no infant, qualifies as a person. Between the two extremes, there are a multitude of possibilities.

One approach to personhood is the developmental view, which denies that a bright line can be drawn at any particular point in natural development when the fetus acquires moral standing. The developmental view hinges on the continuity of fetal development, and the difficulty of non-arbitrarily picking out properties that qualify some fetuses, but not others, as persons. Since infants are generally regarded as persons with a right to life, and the difference between a late term fetus and a neonate—particularly in the case of viable premature infants—is merely a matter of location, it appears that in the continuous process of embryonic and fetal development, there is no non-arbitrary place to draw a line where personhood begins. This view is in line with the intuition, shared by many on both sides of the abortion conflict, that fetal life becomes increasingly important as gestation continues, but that it is impossible to say with certainty when, exactly, a fetus becomes a person. The inherent vagueness of the developmental view is an obstacle to translating it into practical moral guidelines or public policies, however.

The potentiality view advances conception or fertilization as the beginning of personhood because it is the fertilized ovum, not its constituent gametes, that is considered to have the potential to develop into a human being with full moral status. This can be criticized in two ways. First, it may be argued that even gametes do have the potential to become human persons. Second, as a number of critics of the potentiality criterion have observed, having the potential to become a person is not the same as being one, and it is being a person that confers moral status and rights.

As Judith Jarvis Thomson noted, "A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree" (Thomson, 1971, p. 199). In Roe v. Wade, the Court located fetal viability as a line of demarcation, the point after which the state may have a compelling interest in protecting fetal life. Although viability is not a specific moment in the continuum of fetal development, it occurs at approximately twenty-four to twenty-eight weeks gestation, when a number of other significant developmental markers have been achieved, and is the point at which, given proper support, a fetus can potentially survive outside the womb, independently of its mother. It has taken on significance as a convenient, relatively identifiable and verifiable turning point in fetal development, when personhood plausibly begins. Fetal viability is to some extent dependent on technology—premature neonates often need considerable medical support to survive. As technological advances in neonatal care occur, it is possible that the point at which a fetus is viable may change. Some critics of the viability standard claim that personhood ought not be contingent on external facts about the state of medical technology, and therefore cannot stand as a proper criterion for personhood.

As technology has provided a better understanding of the different stages of embryonic and fetal development, criteria such as implantation (when the conceptus becomes imbedded in the uterine lining), the appearance of external human form, and the presence of detectable brainwave activity have all been advanced as criteria for personhood and rights. Traditional criteria for fetal personhood include animation, when fetal movement first occurs, and quickening, the time at which a pregnant woman first feels fetal movement. Early Christian authors talked about ensoulment, the time at which the embryo or fetus is imbued with a soul.

Species membership, or genetic humanity, is the most lenient criterion for personhood, and the most easily verifiable. According to this definition of personhood, any entity conceived of human parents is a member of the human species, and is therefore a person. John T. Noonan, writing from a Catholic perspective, argues that the fetus acquires personhood at the moment of conception, when it receives from its parents the human genetic code (Noonan). The genetic humanity standard can be regarded as both too broad and too restrictive, however. It is too broad because it implies that any living entity with the human genetic code qualifies as a human life worthy of protection. Cancer cells, sperm, and ova all have a human genetic code, and on the least restrictive definition of genetic humanity, such cells would have a right to life, implying that if abortion is impermissible, then so is contraception and chemotherapy. Ethicists who advance a genetic humanity view generally exclude from personhood cells that lack the potential to become human beings, combining a genetic humanity standard with a potentiality principle. The genetic humanity standard can also be regarded as too restrictive because it excludes from the possibility of personhood all nonhuman beings, including some that may warrant the moral status of rights-bearers.

The philosopher Mary Anne Warren argues for a very strict psychological standard of personhood, defining a person as "a full-fledged member of the moral community" (Warren, 1973, p. 347). Genetic humanity alone isn't sufficient for personhood, according to Warren, so not all human beings are members of the moral community. Warren proposes a set of cognitive criteria that, it is claimed, everyone can and does agree are central to the concept of personhood: consciousness, the developed capacity for reasoning and problem-solving, self-motivated activity, the capacity to communicate, and self-awareness. Beings that satisfy some or all of these criteria are people with a moral claim on us, whether they are human or not, for just as some human beings are not people, "there may well be people who are not human beings" (Warren, 1973, p. 348). Membership in the moral community requires the capacity for moral participation, in Warren's view; it would be absurd to ascribe moral obligations and responsibilities to an entity that cannot satisfy any of the cognitive or psychological criteria for moral personhood, and it is equally absurd to ascribe full moral rights to such a being. It is obvious that no fetus can satisfy any of these criteria, and it is equally obvious, Warren argues, that anything that fails to satisfy any of these criteria cannot be a person. A fully developed fetus is no more like a person than a newborn guppy, and cannot have a right to life sufficient to override a woman's right to have an abortion at any stage of pregnancy.

Critics were quick to point out that Warren's standard of personhood could not be met by infants, nor many children and adults with serious cognitive deficits, and thus would problematically justify not only abortion, but infanticide and nonvoluntary euthanasia as well. Warren responded to such criticism by allowing that although a newborn infant is not a person with a right to life, and infanticide is not murder, there are other, utilitarian reasons for the impermissibility of infanticide. Infanticide is wrong for the same reason it is wrong to destroy great works of art or natural resources, because destroying these things deprives people of a great deal of pleasure. Moreover, most people value infants, even if their own parents do not, and would prefer that they not be destroyed. These considerations are not sufficient to override a pregnant woman's right to freedom, happiness, and self-determination, nor her right to an abortion at any stage of pregnancy, Warren claims, but the moment of birth marks the point at which the infant's continued life no longer violates any of its mother's rights, and is thus the point at which its mother no longer has the right to determine its fate. Birth is also morally significant "because it permits the establishment of direct social relationships between the infant and other members of society" (Warren, 1985, p. 6). Thus, although an infant may lack the intrinsic properties that ground a right to life, "its emergence into the social world makes it appropriate to treat it as if it had such a right" (Warren, 1989, p. 56).

While Warren has been accused of offering an ad hoc solution to the problem of infanticide, Michael Tooley argues that neither abortion nor infanticide is intrinsically wrong or undesirable, and indeed, "in the vast majority of cases in which infanticide is desirable ... there is excellent reason to believe that infanticide is morally permissible" (Tooley, 1985, p. 14). Tooley's argument is that personhood requires nothing less than self-consciousness, and "An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity" (Tooley, 1972, p. 315). Tooley and Warren both explicitly reject the view that the mere potential to become a person gives the fetus any moral standing.

Philosopher Don Marquis attempts to resolve the personhood standoff by starting with an unproblematic assumption: It is seriously morally wrong to kill an adult human being. Marquis then identifies the natural property that adults have that makes killing them wrong. If the same property is found to belong to fetuses, Marquis argues, it must follow that abortion is also seriously morally wrong. Marquis concludes that what makes killing wrong is that murder deprives its victim of a life and future that is valuable. The victim of a murder is deprived of all the experiences, activities, projects, and enjoyments that would have constituted his or her future, deprived of all that he or she values, or would have come to value, in life. The loss of that valuable future, of what Marquis calls a "future like ours," is ultimately what makes killing wrong. It is also what makes abortion morally wrong, Marquis argues, because fetuses have futures of value. "The future of a standard fetus includes a set of experiences, projects, activities, and such which are identical with the futures of adult human beings and are identical with the futures of young children" (Marquis, p. 192).

Marquis's future-like-ours account implies that it is seriously wrong to kill any being with a future of value—it is non-speciesist in that it does not claim that only human life has value or worth. Rather, like some personhood theories, Marquis's theory leaves open the possibility that other species, if they share the property of having a valuable future, have the same right to life that a human being has, and that killing members of other species would therefore be seriously morally wrong. Marquis offers no account of what a future like ours must look like, or what shared properties of an adult human future make it valuable. This point has been a focus of attack for critics, like David Boonin (see below), Jeffrey Reiman, and Peter K. Mclnerney, who claim that fetuses do not, indeed cannot, have futures like ours.

Marquis's future-like-ours theory, in opposition to other pro-life accounts, is compatible with the permissibility of euthanasia because it is only the loss of a valuable future— not merely the loss of a life—that makes killing wrong. The future-like-ours theory also accounts for the basic intuition that it is seriously wrong to kill young children and infants, for it is presumed they have futures of value. Personhood theories that advance psychological criteria do not straightforwardly account for the intuition or belief that killing infants and children is morally wrong, and must make appeal to other principles, such as social utility, to account for its wrongness. Appeals to social utility, however, cannot explain the wrongness of killing those who are unwanted or unnecessary.

Marquis's critics point out that he fails to provide an argument for why a fetus that is incapable of valuing its own future should count as a being that can suffer a morally relevant loss of its future. The philosopher David Boonin develops an alternative future-like-ours theory that refutes the claim that every fetus has a right to life, and that abortion is in typical cases morally impermissible, on terms that critics of abortion, like Marquis, can and do accept. Boonin argues that a fetus acquires a right to life only at the point in fetal development when organized cortical brain activity is present. The "cortical criterion" is the only morally relevant criterion for moral standing and a right to life, Boonin argues, because organized cortical activity is what makes it possible to have a future like ours. "We have a future-like-ours only because we have a brain which will enable us to enjoy, in the future, the kinds of conscious experiences that make our lives distinctively valuable to us" (Boonin, p. 126). Boonin's theory, like Marquis's, identifies a natural property that fetuses possess that makes killing them morally wrong. But while Marquis's future-like-ours property broadly applies equally to all fetuses and embryos, Boonin's cortical criterion narrows the category of beings with a right to life to those with a developed capacity for conscious desires. "It is because these individuals currently have desires about their futures that our desires about how to behave are not the only ones that are morally relevant" (p. 73). Thus, Boonin's theory does not claim, as some personhood theories do, that no fetus ever has a right to life, but only that this right does not exist from the moment of conception, and he concludes that if, as Marquis proposes, depriving a fetus of a future like ours is the wrong-making feature of abortion, then "abortion in typical circumstances is permissible," because the typically aborted fetus lacks a future like ours (p. 129).

Marquis contends that a desire-based account of the wrongness of killing cannot explain why it is morally wrong to kill individuals who have no desire to live, such as suicidal teenagers, the sleeping, and the unconscious. Any theory in which having a valuable future depends upon actually desiring that one's life continue fails to adequately account for the basic intuition that killing beings who do not occurrently value their own futures is seriously morally wrong. The value of life, Marquis argues, is not secondary to our desire for it. If it were, a mere reordering of desires could make killing morally right. The fact that a fetus does not desire the continuation of its own life does not imply that its future has no value—its future is ultimately valuable to it because it will be valuable to it in the future.

Boonin proposes a modified future like ours principle that can account for the wrongness of killing in Marquis's counterexamples, however, because it does not depend on occurrent desiring. In Boonin's modified future-like-ours principle, present ideal dispositional desires—desires an individual would have, given perfect conditions such as rationality, consciousness, and ideal circumstances—account for that being having a valuable future (p. 73). It is only the possession of actual dispositional desires, however, and not the mere capacity for such desires in the future that has moral relevance, Boonin argues. Consequently, a precon-scious fetus does not have the same moral standing, or the same right to life, as a conscious late term fetus, an infant, a child, or an adult. If Boonin's cortical criterion is accepted, the vast majority of abortions, which take place well before the point at which fetuses can form conscious desires, are morally permissible.

A looser cognitive criterion for personhood is adopted by Baruch Brody, who appeals to the symmetry between the development of a functioning brain as the beginning of fetal humanity and the cessation of brain function as the definition of death, or the end of humanity. That is, the property whose acquisition confers the right to life in the first place is the same property that, when permanently lost, entails the loss of a right to life. That property is the possession of a functioning brain. If the brain death theory is correct, Brody concludes, a fetus becomes a human being about six weeks after fertilization, when it has a functioning brain. After that point, abortions, except under unusual circumstances, are morally impermissible. Brody's is a significantly looser cognitive criterion than Boonin's "organized cortical activity" criterion because it makes fetal humanity dependent on the presence of early brain function which is not sufficiently organized to support consciousness. A difficulty for Brody's theory is that determining when brain death has occurred may be nearly as difficult as determining when personhood begins. Brain death has proved notoriously difficult to ascertain because detectable electrical activity can continue in a brain that has ceased meaningful functioning. One study shows that at least 20 percent of "brain dead" patients continued to exhibit electrical activity on electroencephalograms, some of it compatible with function (Truog, p. 161). The symmetry Brody appeals to is thus elusive—it may be no easier to define when personhood ends than it is to define when it begins.

Both proponents and opponents of abortion believe that settling the abortion controversy requires settling the question of personhood. While there is room for agreement in positions like Boonin's, Brody's, and even Marquis's, at either extreme standards of personhood like Noonan's and Warren's are incommensurable, leading some to question the utility of defining personhood as a route to resolving the abortion conflict. So long as the fetus's moral standing is believed to depend on fetal personhood, however, the question of personhood will not disappear from the abortion debate.

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