In a recent article entitled ‘After-birth abortion: why should the baby live?’ⁱ Alberto Giubilini and Francesca Minerva unveil and rehearse an old proposal by Peter Singer. In his 1979 version of Practical Ethics2 Singer argued that a 1-month-old baby, in view of its youth, lacks rationality, self-consciousness and autonomy. Accordingly, the child is, technically speaking, a non-person that could be killed without moral compunction. The only reason against such a proposal would be third-party feelings of distress. Giubilini and Minerva recommend the same predictable conclusion. They do so, however, without any allusion to the debate that surrounded the suggestion even then and without any reference to a single alternative philosophical account. The infanticide proposal is so much a part of contemporary bioethical discussion, steeped as it is in the vested interests of medical research, abortion provision, ‘liberal’ eugenics, population control and elimination of social costs, that it will come as no surprise to those reared on the desiccated diet of late 20th century utilitarian bioethics. A discussion of the equal-dignity principle and any potential adverse implications of institutionalising infanticide appears nowhere in the article. This imbalance deserves redress. In view of the implications of eroding further the dignity of human life, politically, psychologically, demographically, professionally and culturally, it is worth re-examining certain arguments against infanticide. So as to remind readers of alternative and indeed traditional ways of regarding the question of involuntary or non-voluntary euthanasia by lethal injection, or any intentional killing of the young, unconscious, or disabled, this article seeks to re-examine the infanticide proposal and the grounds and rationale for its recent implementation in Groningen.

Personism: dehumanising, discriminatory and arbitrary

In order to arrive at their conclusion that infanticide is morally permissible, Giubilini and Minerva espouse a personistic ethic. What is personism? Briefly, this is the view that human beings do not have any inherent dignity in virtue of their humanity. Merely being human is not in itself a reason for ascribing value to someone. On the contrary, human beings get their value from their status, understood in technical terms, as ‘persons’. Accordingly they announce: The moral status of an infant is equivalent to that of a fetus in the sense that both lack those properties that justify the attribution of a right to life to an individual. Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’. We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her. This means that many non-human animals and mentally retarded human individuals are persons, but that all the individuals who are not in the condition of attributing any value to their own existence are not persons. Merely being human is not in itself a reason for ascribing someone a right to life.ⁱⁱ

This text as stated has two questionable features. The first relates to its explicit dehumanisation of the mentally disabled so that they, as a category, are indistinguishable, morally speaking (though perhaps not physically speaking), from animals, as a category. The second relates to its moral actualism so that only those who are in ‘the condition of attributing any value to their own existence’ have any right to life. We repair to this second question in due course. The first feature, the moral conflation of ‘non-human animals’ and ‘mentally retarded human individuals’, is troublesome. It is at odds with the principle that human beings have an intrinsic dignity in virtue of their common humanity so that however disabled, young, old, conscious, awake, ill, diseased, unproductive and irrational we may be, we retain our dignity just by virtue of being human. A human being, notwithstanding illness or inability to exercise higher mental functions, is human and does not thereby degenerate to the level of vegetable or an animal. Although our abilities and capacities may fluctuate, we retain our moral worth and our relation to the human family. This is often referred to as the equal dignity principle since it resists the temptation to discriminate morally on grounds of disability or characteristics. It locates value in our common humanity. On this view, human beings are distinctive in part because they are the kind that has moral obligations in a way that other kinds (eg, animals and vegetables) do not. Human individuals do not lose that moral distinctiveness however mentally disabled. Despite its absence from the authors’ analysis, the principle is a powerful one embedded both in international law and traditional moral thinking. As a well-known alternative position, it deserves some consideration however anxious the theorist is to arrive at his preferred conclusions. Giubilini and Minerva assume the truth of personism, leave this question entirely unaddressed and then unsurprisingly conclude that killing newborns is morally permissible because young babies are non-persons and thus more like animals than humans.

The idea of intrinsic human dignity and inalienable human rights is far from unfamiliar.ⁱⁱⁱ Any plain reading of the Universal Declaration of Human Rights and European Convention on Human Rights affirms the same. Unjust discrimination on the basis of age, disability or incapacity is among the numerous grounds available to regard personism as seriously dehumanising. Part of the reason for the concern to assert the inherent dignity of all human beings is the arbitrariness and discrimination of any system that regards certain members of humanity as right subjects for elimination, as somehow subhuman or morally equivalent to animals. The preamble to the Universal Declaration of Human Rights recognises ‘the inherent dignity and... the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world.’ Article 2 of the European Convention on Human Rights asserts that ‘Everyone's right to life shall be protected by law.’ Article 14 of the European Convention of Human Rights states that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination.’ The Declaration on the Rights of the Child proclaims that the child ‘...needs special safeguards and care, including appropriate legal protection, before as well as after birth.’ Given the incentives to dehumanise, abuse and kill vulnerable human beings, in the name of non-therapeutic medical research, the Nuremberg Code, for example, reminds us that ‘The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent.’ The 20th century is a reminder of how the dehumanisation of certain classes of individual has been at the cost of gross human rights abuse. Many of the illicit experiments of that benighted century were performed on children whose parents abandoned them to research, in which they were classified as non-persons or subhuman, for the greater ends of scientific progress and social utility.11

Concerns for justice (self-defence, defence against aggressors and, more contentiously, capital punishment, etc), where the idea of an individual's forfeiting his right to life is at play, need not compromise the principle of equal dignity. The concept of forfeiture is entirely in keeping with the principle because it recognises that, in certain cases, it is necessary to permit intervention in the interests of justice. The principle of self-defence, for example, need not be predicated on arbitrary notions of personhood, moral status, age or ability for that matter. In short, on an immediately appealing, non-discriminatory account, one does not derive one's rights from one's technical status as a ‘person.’^iv Nor need we predicate concerns for justice on fluctuating concepts of personhood and diminishing moral status so that unjust aggressors are somehow lesser persons.

On this account we have value in spite of our fluctuating capacities, in spite of our dependence, age and weakness.12 The objection that infanticide ought to be permissible at international law and that plain readings of these conventions should no longer be thought relevant given alterations in attitudes merely begs the question about whether these proposed alterations in Western thinking are morally sound. We have seen only too clearly and frequently in the 20th century how alterations in positive law and prevailing attitudes can be fundamentally mistaken and at odds with human dignity.

Moral actualism

The equal dignity principle notwithstanding, the authors assert without elaboration that ‘however weak the interests of actual people can be, they will always trump the alleged interest of potential people to become actual ones, because this latter interest amounts to zero.’^v This statement highlights another problem with their account and that is their moral actualism. On this view only those demonstrating actual capacities matter morally. The trouble is human potentiality is a broader notion than they appear to realise. We are, after all, at various points in our lives, dependent, asleep, unconscious, young, suckling, aged, intoxicated, disabled and so on.¹² Giubilini and Minerva nowhere discuss the question of the sedated, sleeping, etc when they assert that ‘We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her.’¹ But the seriously intoxicated, the sleeping, the sedated and the comatose are not capable of attributing to their own existence some (at least) basic value such that being deprived of this existence represents a loss to them. Are they therefore non-persons ripe for elimination in the authors’ view? Our propensity to sleep, fall unconscious, go into comas, pass out and so on, demonstrates, in no uncertain terms, that we very often exhibit our status as potential persons and become incapable of attributing value to our own existence. Our abilities can and do fluctuate indeed every night when we go to sleep and fail to ‘lay a claim’ on our lives. Potentiality and fluctuating actuality is a feature of the human condition and efforts to predicate value on perceived valuable actual states that persons exhibit is question-begging.

Manifestly, the authors regard certain kinds of potential persons as having moral status. What is to be made of their account? Here is one possible reply, one which nowhere appears in their article. It might be suggested that the authors are concerned only with lack of capacity rather than lack of ability, and that this distinction between types of potentiality affords them a way out of the proposed logical impasse. A baby lacks capacity but a sedated or sleeping individual lacks ability. We may therefore kill babies qua non-persons but not sedated, sleeping etc individuals who are persons. But this possible reply is equally problematic. It trades on the recognition that potentiality, generally speaking, does matter morally. Efforts to exclude ‘just those kinds of potential persons who don't matter morally’ from the realm of moral status involves them in a circle of the form ‘Just those kinds of potential persons who lack moral status lack moral status’. Why should one's status as a baby (disabled or otherwise) not matter morally if one's status as potential person (while sleeping, comatose, sedated or drunk, etc) is so recognised? Efforts to set out criteria like rationality, self-reflective capacity, moral sensibility, and so on are equally problematic. Excluding from the world of moral status 1- and 2-month-old babies on the grounds that they lack rationality, self-reflective capacity or moral sense can have the ill-starred effect of excluding also many professors of moral philosophy and 13-year-old boys. These defects alone should not deprive such creatures of their moral status or encourage us to believe that they lack intrinsic dignity.

Attitudes of care and protection: longer term implications

Some 15 years ago, drawing on work by Jenny Teichman,13 I suggested that Singer's personism and actualism were flawed. In ‘Innocence and Consequentialism: Inconsistency, Equivocation and Contradiction in the Philosophy of Peter Singer’^vi I argued that Singer was inconsistent in his explanation of a thought experiment. His rejection of baby-farming—that is, deliberately creating brain-damaged babies for organ harvesting-implied a logical inconsistency and a contradiction on the face of his own work. He was not inclined to the view that baby farming should be permitted. At the same time, his views on the permissibility of infanticide were well known and a reason for some of his cachet at the time. Baby farming was impermissible on his view because it undermines our attitudes of care and protection for the brain damaged. I argued that this rejection was incompatible with his other conclusions. His infanticide proposal is predicated on his personism. If, however, we can help ourselves to the idea that our attitudes of care and protection matter morally then they must matter also where newborn babies are concerned. Infanticide plausibly damages our attitudes of care and protection for our young. Accordingly, even if we set aside the equal dignity principle, there are still good utilitarian reasons to reject both infanticide and baby farming as imprudent. In short his prohibition on baby farming contradicted his infanticide proposal.

Let us take this point a step further. Let us suppose that attitudes of care and protection do matter morally. Those who accept the equal dignity principle and traditional morality's fundamental precepts need not go down this route, since intentionally killing the innocent is always impermissible, but a broader ethical analysis might consider this possibility. Let us suppose that undermining attitudes of care and protection for our young by way of abortion (and now infanticide) brings about an erosion of respect for future generations, undermines the caring ethic of the medical profession, undermines patient trust in the medical profession and in the long term adversely affects the birth rates of nations whose dominant ideology would by now be personist in character. How, if at all, would these broader factors enter into the calculus? One of the well-known charges against utilitarianism is that it can achieve diverse results depending on how the calculus is performed. Accordingly, if one chooses a calculus using certain short-term criteria, the theorist can achieve one result. If the theorist opts for a longer-term approach, using another criteria set he can achieve different results. How is one to adjudicate between tests? This is often referred to as the argument from arbitrariness. The arbitrariness objection also arises spatially depending on the subjects, preferences, feelings and so on used to calculate best consequences. Either way, Giubilini and Minerva, in their haste to arrive at their ‘radical’ conclusions, spare us any discussion of the parameters and rationale behind their calculus, and nowhere countenance these broader kinds of factor ignoring any longer-term psychological, demographic, cultural, professional and intergenerational calculations. Apart from anything else, given the demographic state of Europe,^vii some consideration of these broader implications would seem a sensible place to start.

The European Green paper Confronting Demographic Change: A new solidarity between the generations and the Munich Economic Summit 2007, for example, highlight the collapse in European birth rates, rising dependency ratios and looming pensions crisis. Despite this reality, there is little interest, certainly by these authors and many avowed utilitarians more generally, in addressing the intergenerational conundrum. The question of why Western nations, immersed in an ethic that dehumanises their young, are prepared to forego their own future generations altogether remains. At any rate, Giubilini and Minerva are not in the slightest interested in the longer-term cost of further undermining respect for young human life and blithely proceed to their citation-maximising conclusions. The reader is left wondering what reason other than the circular one of realising their preferred conclusion of permitting the killing of the newborn babe could be given to justify their short-termism. The irrationality of their approach is suggested by the self-serving nature of their preferred calculus.

Lives not worth living: ‘futile lives’ and futile treatment

The infanticide proposal is not a new one. Citing their own ideological sages, Singer, Kuhse and Hare, and omitting any reference to objectors, Giubilini and Minerva state: Euthanasia in infants has been proposed by philosophers for children with severe abnormalities whose lives can be expected to be not worth living^viii

As always, the very language they use is reminiscent of the Lebensunwertes Leben language favoured by the eugenicist Nazi regime.^ix Be that as it may, on their own analysis, it is not at all clear quite why the status of a child as disabled should be of relevance given that babies are non-persons in any case. If it is relevant because it would cause displeasure to other actual persons who are the parents, or the hospital authorities, or the officers of the state, any reason is as good as the next for killing the baby. After all it is the displeasure to third parties that is doing the moral work here. Disability can add nothing to the moral status of the child involved. Yet disability is harped upon throughout the essay by the authors as a reason for killing the child. Again, it is worth remembering Singer's mistake. If we are able to refer to our attitudes of care and protection then attitudes of care and protection for the very young and the disabled ought to enter the moral equation. Disability can add no further reason to kill the child. Indeed discrimination against the disabled may well display a callousness toward the vulnerable that might be better suppressed by general prohibitions even on Singer's selective criteria. After all, these are likely to have implications for existing disabled and dependent people. These concerns are not even alluded to by Giubilini and Minerva. In their haste to arrive at their preferred conclusions, they tailor the parameters of their calculus to suit their preferred conclusions.

Third-party feelings of distress

In full swing with their moral actualism, oblivious to the charges of arbitrariness and inconsistency, and unconcerned by charges of discrimination against the vulnerable, the authors insist of a sudden that the psychological pain of giving a child up for adoption should count as a reason in favour of infanticide, because in their view ‘the interests of the actual people involved matter, and among these interests, we also need to consider the interests of the mother who might suffer psychological distress from giving her child up for adoption.’^x

The emergence of these ‘feelings of distress’ out of the blue, as it were, serves to underline once again the arbitrariness and self-serving nature of their account. Other feelings and outcomes are missed. Strangely, the ravaging of the moral sensibilities of the medical professionals involved in the process of using the lethal injection on babies, the confusion and guilt of members of the family who might be swept into this course of action by force of custom or ignorance, the danger of incentivised homicide that would inevitably follow in its wake (what with the demands for organs, medical research, cost minimisation and so on) play no role in the authors’ reasoning about killing the newborn. The examples of Nuremberg (and human rights violations by states even now—for example, infanticide and much more in China), are a reminder of how medical research and organ demand can incentivise homicide. The Alder Hey scandal is testimony to the temptation among medical professionals to use illicit means to achieve perceived progressive ends with long-term loss of public trust. If this is true of organ retention, we can expect the same to be true of infanticide once legalised. Cost saving, litigation and payout minimisation, bed clearing, body parts and political Malthusianism are all matters that incentivise infanticide and other forms of euthanasia. As I have noted elsewhere,18–22 in this environment failures of transparency, (ie, to say, feelings of confusion resulting in wholesale deception, among medical professionals), even in states where euthanasia is legal, becomes both pragmatic and inevitable.^xi Belgium is now well known for its ‘failures of transparency’ with only 52.8% of acts of euthanasia reported to the authorities in Flanders.24 These reasons against killing the child, turning carers into killers and fuelling an industry in death, in addition to the longer-term implications mentioned earlier nowhere enter into the authors’ calculus emphasising the problem of arbitrariness and circularity that characterises the analysis.

These pragmatic considerations notwithstanding, it is not at all clear why third-party feelings of distress should trump the life of a newborn baby however disabled. To judge that the treatment involved in his or her care is futile, too expensive or too burdensome to the child is to make a coherent point about the quality of the treatment involved. It need not degenerate into a personistic, actualistic, arbitrary and unjustly discriminatory evaluation of the child's very life. Nor does the analysis leave us blind to the vulnerability of human life, the need we have for the care of others, the importance there is in not incentivising and institutionalising this most serious of offences.

The Groningen Protocol

As outlined earlier, the infanticide proposal is not new in the academic world where vested medical, pecuniary and political interests define and finance academic debate, but emerging practices, like the self-styled Groningen Protocol demonstrate that the discussion is far from theoretical. By way of illustration, the Dutch experience is useful evidence of the slippery slope from voluntary to involuntary paediatric euthanasia, from euthanasia for the terminally ill to those depressed and lonely people whose elimination is now being proposed by progressive Dutch physicians as socially advantageous,^xii from right to die to duty to die. Despite being practised by the ancient Romans, Greeks and Spartans, however, infanticide is still largely outlawed in the West, in part, because of Judeo-Christian prohibitions on the practice. Tertullian, for example, notes and abhors the custom in his Apology. The practice remains illegal in most jurisdictions in the world.

In the New England Medical Journal25 Verhagen and Sauer specify that where babies are suffering and parents are questioned by medics and give consent, there should be due diligence with respect to any act of infanticide by lethal injection. Aside from highlighting the accuracy of warnings about the logic of voluntary euthanasia naturally implying involuntary euthanasia of those regarded unfit, there are further difficulties with this ‘eliminating suffering by eliminating sufferers’ approach to medical care.26–29 Opponents of this new practice note that sound paediatric care ‘does not mean that pain and suffering should go untreated, only that active euthanasia is not the proper treatment.’²⁶ Eric Kodish, for example, affirms that: ‘High doses of analgesia along with other therapies designed to palliate symptoms are the appropriate alternative’ to the swift option of infanticide. Again the issue of withholding treatment is, all things being equal, distinct from the act of infanticide, particularly when the child is dying of independent causes or where the treatment is over-burdensome or too expensive. As Kodish rightly points out: ‘The moral justification for withholding is that the burdens of the technology outweigh the benefit to the infant, a very different premise from the active killing of the infant to end...suffering....Caring for seriously ill infants and children is never compatible with active euthanasia’(p. 893). Furthermore, the idea that substituted parental consent should determine whether or not the child should be given a lethal injection to end its life is predicated on the idea that parents cannot wrong or abuse a child. Particularly where parents are ill-informed or mistaken as to the diagnosis or prognosis of the child, the test is manifestly all the more obviously objectionable. For euthanasia to be an expression of the will of the party seeking it, that expression of will should not be substituted by other third parties, however well-meaning or closely related. Verhagen and Sauer's final arctic requirement that the act of infanticide be performed with due diligence is another question-begging condition. There is every reason to doubt whether paediatric care should involve the technical skills associated with homicide. Indeed, it is this prudential consideration that informs the Hippocratic Oath in its unadulterated form.

The World Medical Association (Resolution on Euthanasia Adopted General Assembly 2002) condemns euthanasia by lethal injection, and urges all national medical associations to refrain from complicity in such practice even if domestic law professes to legalise it. The Hippocratic Oath, at least in its ancient form: ‘I will give no deadly medicine to any one if asked, nor suggest any such counsel’, rejects it. Diverse sacred traditions condemn it as a basic offence against human life. The Parliamentary Assembly of the Council of Europe has issued a declaration in which it asserts that ‘[e]uthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged benefit, must always be prohibited.’^xiii These international instruments, the equal dignity principle and principles of traditional morality notwithstanding, the institutionalisation of infanticide and its normalisation among paediatricians involves gravely unacceptable outcomes.