Potentials and burdens: a reply to Giubilini and Minerva
- Correspondence to Francis J Beckwith, Department of Philosophy, Baylor University, One Bear Place #97273, Waco, TX 76798-7273, USA;
- Received 7 June 2012
- Revised 24 July 2012
- Accepted 29 January 2013
This article responds to Giubilini and Minerva’s article ‘After birth abortion: why should the baby live?’ published in the Journal of Medical Ethics. They argue for the permissibility of ‘after-birth abortion’, based on two conjoined considerations: (1) the fetus or newborn, though a ‘potential person’, is not an actual person, because it is not mature enough to appreciate its own interests, and (2) because we allow parents to terminate the life of a fetus when it is diagnosed with a deformity or fatal illness because of the burden it will place on the child, parent, family or society we should also allow parents to do the same to their newborn, since it is no more a person than the fetus. The author critiques this case by pointing out (a) the metaphysical ambiguity of potential personhood and (b) why the appeal to burdens is irrelevant or unnecessary.
In March 2012 the Journal of Medical Ethics released online the article, ‘After Birth Abortion: Why Should the Baby Live?’1 authored by philosophers Alberto Giubilini and Francesca Minerva. Their argument is fairly straightforward. Many abortions, the authors point out, are procured because the fetus is (i) diagnosed in utero with a mental or physical deformity or another sort of illness, for example, perinatal asphyxia, Down's Syndrome and Treacher-Collins syndrome and (ii) the parents conclude that because of this deformity or illness the child, if allowed to be born, will have a significantly diminished quality of life and/or will be a severe burden on the parents, the family and/or society. There are, however, some cases in which the child is misdiagnosed as healthy, and the parents only find out that the child is deformed or severely ill after the child is born. Because the newborn is no more a person than the preborn, the authors argue for the moral permissibility of a form of infanticide that they call ‘after-birth abortion.’
Although the article drew much negative attention because of its authors’ candid suggestion and the grounds they offer for it, the sort of case they make is hardly new to the literature. Michael Tooley2 and Peter Singer,3 for example, made similar arguments decades ago, as Giubilini and Minerva correctly note (p. 1, 2).1
Unsurprisingly, then, critiques of the sorts of arguments the authors employ to support their case are not without precedent as well.4–8 For this reason, rather than rehashing these critiques, I focus in this article on two aspects of their case that are usually not addressed in the bioethics literature on abortion or infanticidei: (a) the metaphysical ambiguity of potential personhood and (b) why the appeal to the burden of the child, parent, family or society is irrelevant or unnecessary.
Metaphysical ambiguity of potential personhood
Throughout their article Giubilini and Minerva refer to fetuses and newborns as ‘potential persons,’ a term that has been used in the bioethics literature for over four decades. According to the authors, ‘fetuses and newborns… are potential persons because they can develop, thanks to their own biological mechanisms, those properties which will make them ‘persons’ in the sense of ‘subjects of a moral right to life’: that is, the point at which they will be able to make aims and appreciate their own life’ (p. 2).1 This is why, argue the authors, it is morally permissible to kill fetuses and newborns. They are only potential persons, not actual persons.
The authors ‘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’ (p. 2).1 So, a human fetus or newborn is not a person because it is not mature enough to attach value to its own life and/or to appreciate its own interests.ii
I want to argue that their view of personhood and their attendant understandings of harms and interests are not the obvious deliverances of reason that they presume them to be, precisely because of the metaphysical ambiguity of the term ‘potential person.’ Although, as I have already noted, it is a stock label in the world of academic bioethics, the two terms in which it consists, ‘potential’ and ‘person,’ have a long and rich philosophical pedigree that very few in professional bioethics seem to appreciate, though there are notable exceptions.9–11 In what follows is a brief analysis of ‘potential person’ and why a more clear understanding of the term undermines the use of it by Giubilini and Minerva as a definitive standard to exclude fetuses and newborns from the category of beings that can be harmed.
When I say, for example, that the oak tree in my back yard is a potential desk, I mean to say that a carpenter can build a desk with the parts that were once my oak tree. When the oak tree is killed before the carpenter works on its parts, it literally ceases to be. There is nothing in the nature of the oak tree by which it is ordered toward ‘deskness,’ as when it was as an acorn when it was ordered toward becoming a mature version of itself. This is why, as Aristotle points out, if you own a bed made out of wood and then plant a piece of the bed in the ground, ‘it would not be a bed that would come up, but wood.’ This ‘shows that the arrangement in accordance with the rules of the art is merely an incidental attribute, whereas the real nature is the other, which, further, persists continuously through the process of making.’12
Although the desk is made up of the same stuff as the tree, it is not a phase in the life of the tree, as is fetus, infant, adolescent or adult in the life of a human being. In that sense, the tree is no more a potential desk than is a human being a potential pile of ashes prior to ‘undergoing’ cremation. So, when Giubilini and Minerva say that the fetus or the newborn is a ‘potential person,’ they cannot mean this sort of potential, for they maintain that the fetus or the newborn remains the same being before and after it ‘becomes’ a person. They write: ‘[T]he fact that a fetus has the potential to become a person who has an (at least) acceptable life is no reason for prohibiting abortion’ (p. 2).1 In this sense, ‘personhood’ is a phase in the life of a particular substance, a human being.
Perhaps when Giubilini and Minerva use the term ‘potential’ they mean it in the sense of accidental potential, such as when we attribute to a being a potential that is not essential to its nature, even though our attribution of this accidental potential depends on that being's nature and its essential properties. So, for example, if I say that President Barack Obama is a potential French speaker or tattoo wearer, or that my nephew, John Paul, is a potential pope or graduate of Princeton University, I am saying that given their natures these are real possibilities. But I do not think that is what Giubilini and Minerva mean by potential, for it seems what they mean depends on the sort of being that the fetus or newborn is, and not on the array of other possibilities that the being may pursue or may have done to it given the sort of thing it is. Whether, for example, I am 192 lbs or 202 lbs, a plumber, a professor, a baker or a candlestick maker makes no difference to the sort of being I am. But, as we have seen, Giubilini and Minerva claim that all fetuses and newborns have the same nature, ‘because they can develop, thanks to their own biological mechanisms, those properties which will make them ‘persons’ (p. 2).1
So, to summarise, according to Giubilini and Minerva, you are the same being as your fetal and newborn self, and your potential to exercise certain personal powers—including the potential to exercise the abilities to ‘make aims and appreciate [your] own life’—are not accidental to your nature. Thus, the fetus or the newborn is not a potential person in the sense that it ‘becomes’ something else—as the oak tree ‘becomes’ the desk—and it is not a potential person in the sense that acquiring personal powers is accidental to its nature, as when my weight changes from 202 lbs to 192 lbs. This means that the capacity to exercise these personal powers is essential to the fetus’ nature, a nature that Giubilini and Minerva concede the fetus or newborn retains before and after it is capable of exercising these personal powers.
It seems then that the fetus or newborn is a being with a personal nature, and for that reason, it has essential properties that include capacities for personal expression, rational thought and moral agency. Thus, the maturation of these capacities is perfections of its nature. This is why, for example, we think that the blind man has been wronged and ought to have sight but that the stone that cannot see is neither blind nor wronged.
Nevertheless, Giubilini and Minerva want to ground the wronging of persons in what some philosophers call a desires account of harm. They write that what makes killing a person wrong is that ‘she is prevented from accomplishing her aims’ (p. 2),1 and since the fetus or newborn does not have aims, then killing either one is not wrong. It is only ‘at the point at which they will be able to make aims and appreciate their own life’ (p. 2)1 that they are truly persons who can be harmed.
But given the sort of potentiality that Giubilini and Minerva seem to presuppose in their understanding of the fetus and the newborn—that each is a being of a personal nature with essential properties whose maturation are perfections of its nature—their desires account of harm can be called into question. Consider the following.
Giubilini and Minerva assume that having aims and appreciating them is essential to personhood. But suppose that scientists figure out how to tinker with the trajectory of an embryo's cerebral development in such a way that its brain becomes hard-wired so that it cannot develop the ability to have aims and appreciate them. These creatures are called ‘After Humans’ (AHs), and they develop in every way ordinary human beings develop. The AH is sentient, intelligent and self-aware, but he can never have aims or appreciate them. For this reason, AHs have no desire for a right to life.
The reason for creating AHs is that they are a great economic and social resource. This why proponents of the project defend it by claiming that AHs can serve as slaves, subjects of scientific experimentation, organ donors and even sex workers. There is nothing immoral in using AHs in these ways, for they are not ‘persons’ and thus cannot be harmed. Although some citizens are uncomfortable with bringing AHs into existence, since it means that scientists much change the normal brain development of AHs toward expressing their personal nature, defenders of the project conscript the reasoning of Giubilini and Minerva: ‘The alleged rights of individuals…to develop their potentiality… is overridden by the interests of actual people (parents, family, society) to pursue their own well-being, because…merely potential people cannot be harmed by not being brought into existence’ (p. 3).1
Suppose, upon hearing of this grisly undertaking, a group of prolife radicals breaks into the laboratory in which the fetuses, whose brains were tinkered-with, are resting comfortably in artificial wombs. The prolifers take the artificial wombs (with fetuses intact) and transport them to a laboratory located in the basement of the Vatican. While there, several prolife scientists perform successful surgery on the brains of the fetuses so that they may be allowed to develop normally. After 9 months, the former fetuses, now infants, are adopted by loving families.
Although Giubilini and Minerva claim that ‘it is not possible to damage a newborn [or fetus] by preventing her from developing the potentiality to become a person in the morally relevant sense’ (p. 4),1 the AH story seems to elicit contrary intuitions. After all, did not the prolife scientists return the damaged fetuses to a state of health so that the fetuses may have an opportunity to express their essential properties that include capacities for personal expression, rational thought and moral agency? In that case, what the scientists did was not only good, but an act of justice. But to embrace that judgment seems to require that one also believe that fetuses (and newborns) are beings of a personal nature ordered toward certain perfections that when obstructed or corrupted result in a harm. So, it seems that a fetus or newborn can be harmed without it having any aims or appreciating them.
Because these subtle distinctions are largely ignored in the literature, as Charles C Camosy9 and Massimo Reichlin10 have pointed out, most of the critical accounts of the antiabortion understanding of personhood do not give due weight to
the different sorts of potential as they pertain to the nature of the fetus and its gamete predecessors. Take, for example,
Tooley's famous kitten illustration (p. 191–193).2 He asks us to imagine that scientists have created a chemical that when injected into a kitten's brain ‘causes it to develop
into a cat possessing a brain of the sort possessed by normal adult human beings’ (p. 191).2 According to Tooley, ‘such cats will be able to think, to use language, to make decisions, to envisage a future for themselves,
and so on’ (p. 191).2 To put it in the language of Giubilini and Minerva, these cats ‘will be able to make aims and appreciate their own life’
(p. 2).1 Although Tooley presents several intriguing caveats in his illustration, I will focus on the most relevant to my present
[I]magine that one has two kittens, one of which has been injected with the special chemical, but which has not yet developed
these properties that, in themselves, make something a person, and the other of which has not been injected with the chemical.
Compare now the actions of injecting the former with a “neutralizing” substance that will interfere with the transformation
process and prevent the kitten from developing those properties that would make it a person, and the action of intentionally
refraining from injecting the second kitten with the special chemical. It is possible that both actions are prima facie seriously
wrong. The basic moral symmetry principle has no implications with respect to that issue. But it does entail that the former
action is no more seriously wrong than the latter. (p. 191)2
For Tooley, the kitten and the special chemical are analogous to the ovum and sperm (p. 193),2 and the injected-kitten prior to acquiring person-making properties as a cat is analogous to the developing fetus or newborn (p. 192),2 neither of which is a person for Tooley. Nevertheless, in the quote above, he argues that interfering with the development of the injected-kitten is morally indistinguishable from not injecting the second kitten with the special chemical at all. So, based on his analogies, aborting a human fetus or killing a human infant is ‘no more morally serious’ than abstaining from sex or practicing contraception.
This judgment may seem strange to most people. But, according to Tooley, it is a conclusion entailed by the basic moral symmetry principle:
Let C be any type of causal process where there is some type of occurrence, E, such that processes of type C would possess
no intrinsic moral significance were it not for the fact that they result in occurrences of type E.
The characteristic of being an act of intervening in a process of type C that prevents the occurrence of an outcome type E
makes an action intrinsically wrong to precisely the same degree as does the characteristic of being an act of ensuing that
a causal process of type C, which it was in one's power to initiate, does not get initiated. (p. 186)2
So, according to Tooley, since it is not morally wrong to not initiate the causal process that would produce kitten-persons or human-persons—that is, not injecting the kitten with the special chemical, abstaining from or contracepting an act of sexual intercourse—therefore, intervening with the causal process that would produce kitten-persons or human persons— that is, killing the injected kitten or neutralising the special chemical before the kitten is fully transformed, procuring an abortion or an act of infanticide—is not morally wrong as well.
Even if one does not find the basic moral symmetry principle objectionable (as some philosophers do), it is not applicable to Tooley's argument. For Tooley fails to distinguish between the passive potential of a being to ‘undergo’ substantial change (eg, oak tree to desk, mere-kitten to injected-kitten, ovum to embryo) in which it literally ceases to be while its matter (among other things) contributes to bringing another being into existence, and the active intrinsic potential of a being to become a mature version of itself. Consequently, the outcomes in the allegedly parallel cases are not the same.
In the cases of not initiating the causal process, the outcome is that one has prevented the coming into existence of a being that would have a personal nature with essential properties whose maturation are perfections of its nature. In the second set of cases—the ones that Tooley refers to as cases of intervening with the causal process—the sort of being that one's lack of initiative prevented from coming into existence in the first set of cases in fact exists. So, in this second set of cases, one is preventing the development of already existing beings that are by nature actively disposed to acquire personal characteristics.
Because these beings are indistinguishable from the fetal-AHs in the story above, our moral conclusion about fetal-AHs would apply to these similarly situated beings as well (assuming moral symmetry): they are beings of a personal nature ordered toward certain perfections that when obstructed or corrupted results in a harm.
Why the appeal to burdens is irrelevant or unnecessary
Recall that the primary reason that Giubilini and Minerva defend after-birth abortion is that children are born who otherwise would have been aborted if not for their condition being misdiagnosed. Because infanticide, in most jurisdictions, is illegal, the parents of the child are prevented by law from ordering the termination of the child's life, as the mother could have freely done only weeks earlier by procuring an abortion. This, Giubilini and Minerva suggest, is unjust: ‘Once these children are born, there is no choice for the parents but to keep the child….’ (p. 1).1
In making their case Giubilini and Minerva emphasise the quality of life prospects these children may have as well as the
burden of caring for them that their existence may place on others. Concerning the former, they write:
Although it is reasonable to predict that living with a severe condition is against the best interest of the newborn, it is
hard to find definitive arguments to the effect that life with certain pathologies is not worth living, even when those pathologies
would constitute acceptable reasons for abortion. (p. 1)1
This is why they concede that ‘people with Down's syndrome, as well as people affected by many other severe disabilities, are often reported to be happy’ (p. 1).1 iii Nevertheless, ‘to bring up such children,’ they argue, ‘might be an unbearable burden on the family and on society as a whole, when the state economically provides for their care’ (p. 2).1 But even if we set aside the question of the child's abnormality, Giubilini and Minerva still maintain that ‘having a child can itself be an unbearable burden for the psychological health of the woman or her existing children…. This could happen in the case of a woman who loses her partner after she finds out that she is pregnant and therefore feels she will not be able to take care of the possible child by herself’ (p. 1).1 Because the newborn is no more a person than the fetus, Giubilini and Minerva ‘claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be,’ and ‘such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk’ (p. 2).1
It is not precisely clear what justificatory role these burdens play in the case of Giubilini and Minerva for after-birth
abortion. After all, if there were no such burdens, abortion and infanticide presumably would still be morally permissible.
For according to Giubilini and Minerva, ‘it is not possible to damage a newborn by preventing the potentiality to become a
person in the morally relevant sense’ (p. 2).1 Moreover, they argue that any moral status that the fetus or newborn may have depends entirely on the subjective preference of its mother:
It is true that a particular moral status can be attached to a non-person by virtue of the value an actual person (eg, the
mother) attributes to it. However, this “subjective” account of the moral status of a newborn does not debunk our previous
argument. Let us imagine that a woman is pregnant with two identical twins who are affected by genetic disorders. In order
to cure one of the embryos the woman is given the option to use the other twin to develop a therapy. If she agrees, she attributes
to the first embryo the status of ‘future child’ and to the other one the status of a mere means to cure the ‘future child’.
However, the different moral status does not spring from the fact that the first one is a ‘person’ and the other is not, which
would be nonsense, given that they are identical. Rather, the different moral statuses only depends on the particular value
the woman projects on them. (p. 2)1
So, it seems that the position of Giubilini and Minerva entails that abortion and infanticide are morally permissible even in the absence of any burdens, just as long as the mother desires that the fetus or newborn cease to be and a physician is willing to carry out her wishes. Thus, to paraphrase from the words of Gregory P Koukl: if the fetus or the newborn is a person, then the appeal to burdens is irrelevant; but if the fetus or the newborn is not a person, then the appeal to burdens is unnecessary.iv
The case of Giubilini and Minerva for after-birth abortion rests on two claims: (i) that the fetus and newborn are merely potential persons and thus cannot be harmed and (ii) both abortion and after-birth abortion are intended to relieve identical burdens. As we have seen, the latter claim is unnecessary or irrelevant, and the former claim rests on a metaphysically ambiguous understanding of ‘potential person.’v
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
↵ii But this is precisely one of the characteristics of the human fetus or newborn. It is a being that lacks the presently exercisable capacity to perform certain mental acts that it is by nature ordered to acquire when it becomes a mature version of itself. Thus, according to Giubilini and Minerva, a human fetus or newborn is not a person because it is a human fetus or newborn. Although one could say that the authors are offering a perfectly circular account of personhood, I suspect that they would deny this charge by arguing that the attributes of personhood that they hold are based on properly basic intuitions that most people share. There is certainly nothing untoward with such an approach. For every moral position rests on beliefs—first principles, if you will—that its advocates maintain are either self-evident, prima facie reasonable and/or based on widely held intuitions. For this reason, I do not believe that the circularity objection is a defeater to Giubilini and Minerva's account of personhood.
↵v Portions of this article have their origin in a much smaller essay published online.15 This present article is a significant revision, expansion and development of the case made in that earlier work. A special thanks to an anonymous referee who offered some valuable suggestions that I incorporated into this article's final version. However, all of its shortcomings are entirely mine.