In their paper 'After-birth abortion: why should the baby live?' Alberto Giubilini and Francesca Minerva argue that because there are no significant differences between a fetus and a neonate, in that neither possess sufficiently robust mental traits to qualify as persons, a neonate may be justifiably killed for any reason that also justifies abortion. To further emphasise their view that a newly born infant is more on a par with a fetus rather than a more developed baby, Giubilini and Minerva elect to call this 'after-birth abortion' rather than infanticide. In this paper, I argue that their thesis is incorrect, and that the moral permissibility of abortion does not entail the moral permissibility of 'after-birth' abortion.
- Allowing Minors to Die
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In their paper ‘After-birth abortion: why should the baby live?’ (published in Journal of Medical Ethics, 2012), Alberto Giubilini and Francesca Minerva argue that because there are no significant differences between a fetus and a neonate, in that neither possess sufficiently robust mental traits to qualify as persons, a neonate may be justifiably killed for any reason that also justifies abortion. In particular, Giubilini and Minerva are concerned with cases where fetal defects are not known until after birth, or if an unfortunate event happens during labour and delivery that renders the fetus impaired (eg, if the fetus suffered from perinatal asphyxia). However, they also argue that even social reasons–for example, job loss or a change in the status of a couple’s relationship–would justify killing a neonate because such reasons are sufficient for justifying abortion. To further emphasise their view that a newly born infant is more on a par with a fetus rather than a more developed baby, Giubilini and Minerva elect to call this ‘after-birth abortion’ rather than infanticide.
Giubilini and Minerva's article1 has garnered much attention, and has been, unsurprisingly, criticised by members of the pro-life community.2 I am not pro-life—I do believe that women have a right to obtain an abortion because I believe that every person has a right to decide if they wish to use their body to sustain the life of another. Nevertheless, I find Giubilini and Minerva's thesis deeply troubling. Having an immediate visceral reaction against a position, however, is not sufficient for concluding that there is something wrong with that position. (I am sure that 50 years ago many people had a strong visceral reaction against miscegenation, but this does not entail that miscegenation is wrong.) Therefore, it is necessary to carefully explore Giubilini and Minerva's arguments in favour of this very contentious conclusion. This is the aim of this paper, and I submit that they have not successfully argued that after-birth abortion is permissible.
The success of Giubilini and Minerva's argument rests on two premises:
The moral status of the newborn is equivalent to that of a fetus; neither can be considered a ‘person’ in a morally relevant sense because neither possesses an interest in continued existence.
Preventing a newborn from becoming a person—that is, thwarting her potential—does not harm her.1
I will argue that their defence of the first premise equates two senses of the term ‘interest’ (ie, possessing an interest in something, in this case possessing an interest in continued existence, versus taking an interest in something) and therefore fails to show that neonates, or fetuses, do not possess an interest in their continued existence The argument they offer in favour of premise 2 is rather unclear, and subject to three interpretations that are all problematic. The most charitable interpretation of their argument in favour of the second premise employs a very controversial position about diachronic personal identity (ie, the persistence conditions of persons over time) that they make no attempt to defend. After detailing how their arguments falter, I will offer an alternative interpretation of abortion rights that does not entail the permissibility of ‘after-birth abortion’ or infanticide.
The moral argument
According to Giubilini and Minerva, a person is
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… all individuals who are not in the condition of attributing any value to their own existence are not persons.1
This definition of personhood, and using this definition to argue that only those who meet these criteria possess a right to life, is not a new one among philosophers and ethicists.i To be clear, according to Giubilini and Minerva, it is not necessary for an individual to actually take an interest in her welfare in order to have one. As they note, if I abscond with a person's winning lottery ticket, one she has no idea she even possessed, I have harmed her even if she never discovers the crime. This is because, although she never happens to take an interest in her winnings because of her ignorance, she is nevertheless capable of appreciating that she has been harmed if she were to discover my theft. As Giubilini and Minerva put it, such a person is ‘in the condition to value the different situation she would have found herself in if she had not been harmed.’1 It is the capacity to take an interest in X, according to Giubilini and Minerva, that is necessary in order to maintain that one has been harmed by being deprived of X and, consequently, if one can be said to have a right to X. Specifically, in order for a person to have a right to life, it is necessary that the loss of her life constitute a harm for her, and the only way that the loss of life can constitute a harm for an individual is if she is able to value and take an interest in her life. For the sake of argument, I will grant that an individual can only have a right to X if the deprivation of X constitutes a loss for her. (Although this, too, is a controversial contention. If I own a fleet of 1000 cars, it may not harm me if a single one is stolen (I may not even notice my loss), but I nevertheless have a right to that car because it is my property.) The problem comes with Giubilini and Minerva's contention that it is necessary that one be capable of valuing X in order to be harmed by its deprivation, or, specifically for our purposes, that an individual must be capable of attributing value to her own existence in order for her to actually possess an interest in continued existence.
It is vital to emphasise that, according to Giubilini and Minerva's argument, an individual cannot really appreciate that she is a victim of harm without possessing some rather robust mental traits: she must be capable of seeing herself as a subject of benefit and harm (ie, a certain amount of self-consciousness is in order) and she must be able to reason that certain things harm or benefit her. When discussing the right to life in particular, Giubilini and Minerva's argument entails that only rational, self-conscious beings can possess a right to life, since it is only these kinds of beings who can perceive themselves as entities who exist over time and who can appreciate that their death would constitute a loss of value for them. This entails that most non-human animals cannot be harmed by being killed (if it is done so painlessly, given their sentience). More generally, their argument entails that one cannot actually have an interest in X unless one is capable of consciously taking an interest in X—that, in order to have a welfare, or things that are in one's own good, it is necessary to possess the capacity to take an interest in one's welfare and one's own good.
In order to begin to see why Giubilini and Minerva's contention is problematic, let's take a look at the following examples where it seems acceptable to hold that a being has been harmed by a deprivation of X even though she is utterly incapable of appreciating X. Suppose a dog owner requests that his dog be painlessly euthanised for no other reason other than he is only allowed to have one pet and his dog has passed the point of puppy-cuteness. Since the dog cannot perceive of itself as a continuing entity existing over time (the dog is not self-conscious), it does not have the capacity to value its life, or contemplate a possible world in which he is not living and be distressed by that idea. Because the dog cannot take a conscious interest in its continued existence, Giubilini and Minerva are committed to saying that the dog simply does not possess an interest in continued existence at all. Painlessly euthanising the dog for such trivial reasons would be no different from depriving any other organic material of its life—this action would be on a par with pulling out weeds. Another example comes from bioethicist Bonnie Steinbock: a dog cannot take an interest in being vaccinated, since it does not possess robust enough mental traits to understand the concept of health and therefore is not ‘in the condition of attributing any value’1 to its health. Nevertheless, it seems absurd to deny that the dog possesses an interest in adequate medical care regardless of its inability to appreciate it. Steinbock7 writes:
It is in the owner's interest to have his animal vaccinated, since owners usually want healthy animals. But it is also in the dog's own interest, since a dog that gets distemper will experience considerable discomfort and probably die. We might reasonably approach an owner who neglected to have his dog vaccinated by saying: “It isn't fair to the dog. Even if you don't care if the dog dies, you should vaccinate him for his own sake. (p18)
Consider yet another example. Let's say a 6-month-old infant has contracted an illness that would painlessly kill him unless he is medicated. The baby is certainly not ‘in the condition to value the different situation (he) would (find himself) in had (he) not been harmed.’ A 6-month-old, though more mentally capable than a newborn in several respects, is still not so mentally capable that he is self-conscious, values his life, and is distressed at the thought of his death. Indeed, I am not even sure whether my 3-year-old daughter meets these criteria. Nevertheless, I suspect many would agree that the 6-month-old has an interest in the medication, that it would benefit him because it extends his life, even if he is incapable of appreciating it. Moreover, many would certainly agree that it is the infant himself that has this interest, not just his parents or the people who love him; the baby would retain that interest even if he were an unwanted orphan. Indeed, if Giubilini and Minerva are correct, a severely mentally handicapped individual (who never develops any robust form of self-consciousness, and therefore is unable to see himself as a subject of harm or benefit) would have no interests at all outside of not being subjected to pain (given his sentience). He would certainly lack a right to life on the same grounds as fetuses and neonates do, and would probably lack a right to medical treatment, for the same reason the 6-month-old does. Suppose the subject here was an autistic child who, at the age of 5, is utterly incapable of appreciating the impact certain forms of education could have on her ability to become a more verbal, rational, and self-sufficient human being. According to Giubilini and Minerva's above-mentioned criteria for moral rights, such a child would have no interest at all in acquiring this education, and therefore would not be harmed by not obtaining it, because this child is also not in a position to attribute any value to her education. But certainly this is wrong. If the autistic child could become a more productive member of society, and even attain more robust forms of self-consciousness and reasoning abilities as a result of this education, then it is undoubtedly in the child's best interest to receive that education, regardless of whether she is capable of taking an interest in it.
Therefore, there is clearly a marked distinction between possessing the capacity to take an interest in X and actually having an interest in X. Steinbock,7 acknowledging this distinction, denotes two senses of the word ‘interest’: interest1 denotes things that are in a being's interest, whereas interest2 denotes things an individual can take an interest in (p16). Having interests in the first sense of the term is certainly sufficient for being a subject of harm if such interests are violated. In this sense, the autistic child lacks an interest2 in being educated, but certainly possesses an interest1 in it because she stands to benefit from that education. Consequently, she would be a victim of harm by being deprived of her education. Similarly, the dog and the 6-month-old baby lack an interest2 in receiving medical care but both have an interest1 in it, and therefore being deprived of medical care would harm them both. Possessing interests1 is sufficient to render an individual a possible subject of harm if those interests are violated.
All these examples illustrate that a being can benefit from X even if he is utterly incapable of taking an interest in X. One need not be capable of appreciating that one has been harmed in order to actually be harmed. Indeed, if one takes a closer look at Giubilini and Minerva's wording, one can see that this is tacitly acknowledged by even them. When discussing the case of the ignorant lottery winner who has nevertheless been harmed by having her ticket stolen, they maintain that the reason she is still a victim is because she ‘is in the condition to value the different situation she would have found herself in if she had not been harmed.’1 The implication here is that the harm done unto her is antecedent to her being aware of it; if it were otherwise, what would she be aware of? If a person can reflect on a counterfactual state of affairs, and can appreciate that a deprivation of X constitutes a loss for her, it is not that awareness (or even the capacity to have that awareness) that constitutes the loss; rather, the loss, the harm, must exist prior to her being aware (or even having the capacity to be aware) of it. The capacity for being aware of the harm is necessary in order for her to subjectively suffer, but that is quite distinct from saying that no harm at all exists by being deprived of X unless one is capable of subjectively suffering from the loss of X. If the loss of X didn't already constitute a harm, there would be nothing there to serve as the cause for the individual's suffering once she is capable of understanding her loss.
What follows from this, then, is that one can still be harmed by being deprived of X even if one is utterly incapable of appreciating that loss. An individual is harmed by an action if that action constitutes an attack on her welfare; that attack can occur regardless of whether the individual possesses the capacity to appreciate that her welfare has been compromised. Consequently, Giubilini and Minerva's reasons for not attributing an interest in continued existence to fetuses and neonates are simply unsuccessful. The most they have shown is that fetuses and neonates are utterly incapable of taking an interest in their continued existence. But this is trivially true, and it has no bearing whatsoever on whether they actually have an interest in continued existence. That is, all Giubilini and Minerva have shown is that fetuses and neonates lack an interest2 in continued existence. But this has no bearing on whether they have an interest1 in continued existence, and it is this interest that matters when determining whether someone has been wronged by being deprived of continued existence. In order for their argument to be successful, Giubilini and Minerva would have to show that Steinbock is incorrect to draw a distinction between interests1 and interests2, or that interests1 cannot exist without interests2. They have not shown that either is the case.
I want to now call attention to two important points that Giubilini and Minerva fail to address. First, it is possible to agree with their point that there is no intrinsic difference between a later-term fetus and a neonate, but still contend that there is a significant difference between a later-term fetus and an embryo/early-term fetus. Therefore, from this perspective, abortion is permissible in the earlier stages of pregnancy but not later ones. A person who holds this position would deny that it is permissible to kill a later-term fetus because it is impermissible to kill an infant, given that there is no substantial difference between the two. Such a person would, of course, disagree with Giubilini and Minerva's conclusion that neonates and later-term fetuses are not harmed by their death. But Giubilini and Minerva take for granted that acknowledging there is no significant difference between a later-term fetus and a neonate logically leads one to the conclusion that ‘after-birth abortion’ is permissible, rather than to the conclusion that later-term abortions are impermissible (or all abortions for that matter, if one also believes that embryos and early-term fetuses are not significantly different from neonates).
Second, if neonates aren't persons in the sense that they possess limited moral status and no right to life, then what are they; what is their moral standing? If they can be killed as wantonly as Giubilini and Minerva suggest, this seems to relegate them to the status of mere property. If the only interest newborns have, given their sentience, is the interest in not being subjected to physical pain, then it is permissible to do almost anything at all to them so long as it is done painlessly. This means that parents can kill them, or deprive them of medication, love and attention, as long as they are not causing any pain. And, given the robustness of the mental traits necessary in order to be worthy of moral rights according to Giubilini and Minerva, this status lasts beyond the first few weeks of life—quite possibly into the toddler years. Although they claim that their argument is only supposed to cover the first few days of the infant's life, this is simply a refusal to acknowledge the logical implications of their view. The mental traits they claim are necessary in order to possess a right to life do not yet exist in children until the later toddler stages. As philosopher Timothy Chappell6 writes: ‘If rationality is a necessary condition for counting as a person, that is, a member of the primary moral constituency, then all children under a certain age will fail to count as persons.’ (p3). The implications of Giubilini and Minerva's arguments are more far-reaching than they admit.
The metaphysical argument
In responding to the objection that fetuses and neonates are harmed by not being allowed to realise their potential personhood, Giubilini and Minerva1 write:
If a potential person, like a fetus and a newborn, does not become an actual person, like you and us, then there is neither an actual nor a future person who can be harmed, which means that there is no harm at all. So, if you ask one of us if we would have been harmed, had our parents decided to kill us when we were fetuses or newborns, our answer is ‘no’, because they would have harmed someone who does not exist (the ‘us’ whom you are asking the question), which means no one. And if no one is harmed, then no harm occurred.
This is a convoluted passage, and it can have at least three possible interpretations (that I can see). The first one is that killing a non-person is acceptable because only persons can be harmed by being killed, since only persons can take, and therefore possess, an interest in continued existence. Above, I have shown that this claim is not just contentious (and probably false) but also not well supported by their argument. A second interpretation is that we could not claim that we were harmed if we had been killed as neonates; in such a case we would not have existed to be able to make the complaint at all. But this is tantamount to arguing that killing has no victim because it gets rid of the victim, and this is obviously absurd.
A third, and most charitable, interpretation is to construe Giubilini and Minerva as making a metaphysical claim about the nature of diachronic personal identity: killing the fetus or neonate would not have harmed you because you didn't exist as a fetus or neonate; killing such beings would have prevented your existence, but it would not have killed you because you had not yet come into existence. Evidence of this interpretation can be found when they write that one reason it is permissible to kill a neonate is because ‘merely potential people cannot be harmed by not being brought into existence’. In other words, you, as a person would not have been harmed had you been killed as a neonate because you did not yet exist. If this is, indeed, the argument they mean to give, Giubilini and Minerva appeal to a position known as the Psychological Account of Personal Identity.8
Questions such as when did you begin to exist, when do you die, and under what conditions does your self persist over time constitute the main issues when discussing diachronic personal identity. In an earlier essay, I argued that philosophers and bioethicists often, sometimes unwittingly, assume certain positions on the issue of personal identity in many of their ethical arguments.9 I further argued that addressing the plausibility of those underlying metaphysical assumptions is a necessary prerequisite for assessing the success of the ethical arguments that are built upon them. For example, in his famous article ‘Why abortion is immoral,’10 Don Marquis argues that abortion is wrong for the very same reason that killing most any other human being is wrong: abortion deprives the fetus of its valuable future. Among other things, a vital component of the success of Marquis’ argument is that the embryo or the fetus is the same individual over time, for depriving it of a future cannot constitute a loss for a particular embryo or fetus unless that future rightfully belongs to it—if it is the same being now that it would be in the future. This is necessary so that we can properly attribute all of those future valuable experiences to the embryo or fetus while in utero. Because Marquis argues that abortion does constitute such a loss for even an early-stage embryo, and because the only thing a future person can have in common with a past embryo is that both are the same human organism, Marquis tacitly assumes in his argument that the persistence conditions of humans over time lies in enduring as the same human organism (and, indeed, I have heard him confirm that this is his view). This position has been dubbed ‘Animalism’ by Eric Olson11 ,12 and the ‘Biological View’ by David DeGrazia.13
Giubilini and Minerva seem to be invoking the Psychological Account of Personal Identity, which maintains that there is a distinction between ‘human’ and ‘person,’ in that the former is a biological denotation (Homo sapiens) while the latter describes, as John Locke puts it, ‘a thinking, intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing, in different times, and places; which it does only by that consciousness which is inseparable from thinking, and, as it seems to me, essential to it’14 (Giubilini and Minerva affirm this distinction in their paper.) Clearly, many biological human beings (including fetuses, neonates, the severally mentally disabled, and those in persistent vegetative states) are not persons in this sense of the term. In addition, individuals who subscribe to this account of diachronic personal identity argue that persons are persons essentially—that is, that persons only exist as long as they are persons and therefore have no identity connection to any part of their lives when they existed as non-persons (in purely metaphysical terms, according to this account, personhood is a substance sortal that picks out a certain ontological kind of being). This means that I would cease to exist upon becoming a non-person, which need not happen at physical death or even at conscious death; if I were to become severely demented, say at the advanced stages of Alzheimer's disease, I would cease to exist altogether because I would not (at that point) be a self-conscious, rational individual with a continuous stream of memories. Similarly, I never existed as a fetus or even a baby, since neither are persons yet. Because one must possess rather robust traits of character to be a person in this sense of the term, I didn't come into existence until sometime during the toddler years, and neither did you. Philosopher Mary Ann Warren, who also subscribes to this view of personal identity, puts it this way:
[W]e are essentially people if we are essentially anything at all. Therefore, if fetuses and gametes are not people, then we were never fetuses and gametes, though one might say that we emerged from them. The fetus which later became you was not you because you did not exist at that time…[s]o if it had been aborted nothing whatever would have been done to you, since you would have never existed.15
Because Giubilini and Minerva share the language that Warren uses, it seems reasonable to hold that they also share her assumptions in this regard.
Yet this position is loaded with complications. It difficult to believe I was never a baby—that the pictures of the 6-month-old that I have always thought were me was not really me. It is also hard to believe that I would cease to exist in an advanced stage of Alzheimer's disease or any other progressive dementia; indeed, the fact that many people take great pains to ensure that they will be well taken care of in such a state illustrates a strong identification with this stage of existence. Of course, just because people feel that they were identical with a neonate or will be identical with a demented individual is not in itself sufficient to conclude that they are, in fact, identical with that neonate or demented individual. However, because this is such a deeply pervasive view of identity, and one that most people are going to be unwilling to surrender, the burden of proof lies with Giubilini and Minerva to present a very convincing argument in favour of such a view (if, indeed, this is what they mean to argue). Most people will hold that had they'd been killed as a baby, they would have been harmed because you were, in fact, killing them at an earlier stage of their existence.
I have illustrated some philosophical problems in Giubilini and Minerva's argument that, I believe, cast doubt as to whether it is necessary to have the robust mental traits of a person in order to possess a right to life. But there are also puzzling, and troubling, practical consequences to their position. The mental traits they argue is a prerequisite to possessing a right to life do not appear overnight, and they are not lost instantaneously either. Is the right to life a gradient right? Does a 1-year-old have just a little bit of that right—less than a 5-year-old, but more than a neonate? If an elderly individual begins the degeneration into Alzheimer's disease, does her right to life become gradually weaker? Giubilini and Minerva attempt to sidestep these questions by passing the buck to neurologists and psychologists, but it is up to them to clearly denote the logical consequences of their views. Moreover, such a litmus test for attributing the right to life to individuals excludes a huge subset of the human (and non-human) population: not just embryos, fetuses, and neonates, but certain mentally impaired individuals, individuals in either temporary or permanent comas, and elderly individuals in the advanced stages of dementia. In other words, Giubilini and Minerva take what makes individuals such as these the most vulnerable (ie, that they have an underdeveloped capacity for rational thought) and use it to argue that they are not worthy of the most basic of all rights. It seems to me that the very contrary is the case: their vulnerability in this regard makes them candidates for our care and protection.ii
A different pro-choice perspective
In another essay, I argued that pro-choice advocates should cease building their arguments in favour of abortion rights upon the premise that human fetuses are not persons.16 The reasons I argue this are fourfold. First, given the vast amounts of ink spilt on this question, and given the unlikelihood of ever reaching a consensus on the issue of moral (or even metaphysical) personhood, we will never come close to achieving consensus on the abortion issue by relying on such a deeply controversial premise. Second, doing so is imprudent. Given the various attempts in the USA of late by pro-life advocates to pass a Human Life/Personhood Amendment in their respective state (which, many have admitted, is an attempt to directly challenge the validity of Roe v Wade), pro-choice advocates need to be armed with arguments in favour of abortion rights that remain unscathed in the event that human fetuses are granted the rights of persons. Third, constantly deriding the lives of human fetuses, and in this case newborn infants, paints pro-choice advocates as callous and heartless extremists, and therefore results in our losing the public relations battle—not just with pro-life advocates, but also with abortion moderates and even pro-choice advocates themselves, many of whom hold fetal life in high regard despite their support of abortion rights. Given the recent onslaught of new policies designed to restrict abortion access for women, the voice of the pro-choice community cannot afford to be further marginalised in public consciousness. Arguing that, essentially, a pro-choice stance leads to the permissibility of infanticide not only obfuscates the intents and goals of the pro-choice movement, but essentially serves to confirm many of the arguments pro-life advocates have used against abortion rights for decades. Finally, deriding fetal and infant life does not accord with the phenomenology of many women who have themselves obtained abortions but, nevertheless, regard intrauterine life as worthy of moral value and respect.17–19
Instead, I maintain that an appeal to Judith Jarvis Thomson's argument in her ‘A defense of abortion,’ that no one person's right to life entails that another person has an obligation to surrender her body to sustain that life, is a much more promising route to take, albeit not one entirely devoid of difficulties.iii 20 Such a stance does not require one to assert that the fetus is not a person or that the fetus is devoid of moral rights or moral status; rather, even if we grant the fetus every single right we would grant an extrauterine person, because no extrauterine person possesses the right to use another person's body for the sustainment of life, the fetus would not possess this right either. A pregnant woman, therefore, has a right to decide she does not want to use her body to sustain the fetus’ life, just like I have a right to decide whether I want to use my body to save your life via the donation of a non-vital organ or bodily fluids. While Thomson's argument has been subject to much critical scrutiny,22–24 I do believe that it can ultimately survive that scrutiny, although arguing for this is beyond the scope of this paper. What I want to do, rather, is show how, if Thomson's argument is accepted, this goes a long way to drawing a marked distinction between a fetus and a neonate—one that does not entail the permissibility of ‘after-birth abortion’.
Thomson argues that the right to an abortion is not the right to kill the fetus per se but, rather, that it is the right to withdraw sustenance from the fetus at the woman's request. The right to an abortion, from a Thomsonian standpoint, is an incarnation of the broader right to bodily autonomy—a right that all persons, male or female, pregnant or not, possess. Throughout the majority of pregnancy, a woman cannot withdraw aid from the fetus without causing its death, but that is not to say that, if the fetus could survive without her sustenance, she then has an additional right to kill it. Thomson writes:
[W]hile I am arguing for the permissibility of abortion in some cases, I am not arguing for the right to secure the death of the unborn child. It is easy to confuse these two things in that up to a certain point in the life of the fetus it is not able to survive outside the mother's body; hence removing it from her body guarantees its death… But they are importantly different… there are some people who will feel dissatisfied by this feature of my argument. A woman may be utterly devastated by the thought of a child, a bit of herself, put out for adoption and never seen or heard of again. She may therefore want not merely that the child be detached from her, but more, that it die. Some opponents of abortion are inclined to regard this as beneath contempt—thereby showing insensitivity to what is surely a powerful source of despair. All the same, I agree that the desire for the child's death is not one which anybody may gratify, should it turn out to be possible to detach the child alive.20
Suppose that you are dying of a blood disorder and need a bone marrow transplant to survive. I am not required to donate bone marrow to you, even if my failure to do so results in your death.25 However, I do not have a right to kill you if it happens that you can survive without my bone marrow. Notice, nothing changes about you as a person, or as a bearer of moral status. You do not lose your personhood when you are in need of my bone marrow, or gain it when you are no longer in need of it. Your status as a person does not change in either case, but what is owed to you in order to sustain your life does.
Giubilini and Minerva are arguably right that there are no significant cognitive differences between a later-term fetus and a newborn. Like most people, I suspect, this inclines me against approving later-term abortions rather than toward approving ‘after-birth abortion.’ However, even if one accepts the permissibility of later-term abortion, this still does not entail that they must accept the permissibility of ‘after-birth abortion.’ Rather, one can argue that, while in the womb, the fetus’ interest in continued existence stands at odds with a person's bodily autonomy. Because of the physical, mental and emotional enmeshment of pregnancy between the woman and the fetus, and because even the best pregnancies require a lot from a woman, and may even pose a threat to her health, the woman's interest in her bodily autonomy supersedes the fetus’ interest in continued existence. However, once the fetus is born, its interest in continued existence is no longer at odds with anyone's right to bodily autonomy, in which case the neonate's interest in continued existence should prevail. That is, the fetus/neonates’ location does nothing to change its nature, but it can indeed have an impact on how to cash out what is owed to it and, therefore, location does matter in certain respects. Persons may have fewer rights in prison than they would in the outside world, even though their moral status does not change. Children may have fewer rights while living in their parents’ house than they would if they lived in their own home, but they still remain persons. Similarly, the fact that the fetus is situated in the body of another person means that respecting its interest in continued existence entails infringing upon the rights of another (if the woman does not want the fetus in her body). No such infringement exists once the fetus emerges from the womb. If the right to an abortion is regarded thusly, then this provides a reason for concluding that, while the fetus may die as an inevitable consequence of a woman's decision to retract continued sustenance, the infant may not be killed because its existence infringes on no one's bodily rights.
Giubilini and Minerva have not provided any sufficient reasons for concluding that ‘after-birth abortion’ is permissible. Given that the prospect of approved infanticide is profoundly at odds with our deeply entrenched moral intuitions, the burden is on them to present an extremely convincing argument. Until they do so, we can conclude that yes, indeed, the baby should live.
A postscript on civility
Giubilini and Minerva's article has received far more attention in the non-academic realm than most of us ever expect to get with our publications. All of the essays I have encountered have been highly critical, and from my understanding the authors have received death threats. Journal editor Julian Savulescu has defended the publication of this piece and the authors, and has rightly condemned the negative attacks that Giubilini and Minerva have received: ‘What is disturbing is not the arguments in this paper nor its publication in an ethics journal. It is the hostile, abusive, threatening responses that it has elicited.’26 I disagree with Savulescu that the conclusions of this essay are not concerning, and I disagreed with it as strongly in its previous incarnations in the writings of Peter Singer, Michael Tooley and Mary Ann Warren (who, in her later years, retracted her argument that infanticide is intrinsically morally permissible). However, I completely agree with him that the violent responses to Giubilini and Minerva are just as, if not more, concerning. Their conclusion was based on rational argumentation, rather than immediate visceral and violent responses. None of the articles I have read condemning them have studied their essay in an attempt to follow their logic and see where they went wrong (as I have tried to do in this paper). It is concerning how quick we are to protest the idea that the vulnerable may be killed by threatening to kill others.
I believe Giubilini and Minerva's arguments are flawed, and I welcome a dialogue with them and others about my response. However, I defend their right to write it and the Journal of Medical Ethics's right to publish it, and I condemn the threats of violence against them. If we cannot debate each other civilly, with respect, and with the use of reason in lieu of death threats, then we have to wonder about the kind of world we are building for the fetuses and infants whose right to life so many champion.
Many thanks to my student, Michael Gooch, who first brought Giubilini and Minerva's article to my attention, and to my husband Dr Tuomas Manninen for his comments and editing skills. Many thanks, also, to the reviewers and editors of the Journal of Medical Ethics for their very helpful comments, and for encouraging civil and respectful debate and dialogue.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.
↵i See, for example, Warren,3 Singer4 and Tooley.5 Also see Chappel.6 Here Chappel argues against what he calls ‘criterialism,’ the view that possession of certain properties (eg, sentience or rationality) is necessary and sufficient for personhood. Rather, he argues, we antecedently grant personhood to a being and then deduce from this that she is likely to be the kind of creature who displays sentience, rationality, self-consciousness and so on. Moreover, Chappell argues that treating certain beings, for example infants, as persons is a necessary prerequisite for them developing the capacities of persons: ‘By years of treating her children as creatures who “have the person properties”—in the sense that interest the criterialist—she makes it true that they are creatures who have the personal properties in just that sense (p. 9). Giubilini and Minerva fail to really engage the vast amounts of philosophical literature that exists about the issue of personhood, much to the detriment of their thesis.
↵ii Although this may appear to be, at first, incompatible with a pro-choice perspective (in that it can be argued that this entails that embryos and fetuses should also be entitled to care and protection given their vulnerability), it need not be. My own particular reason for being pro-choice is mentioned below—that is, I am largely convinced by Judith Jarvis Thomson's argument that no person (whether intrauterine or extrauterine) has a right to use the body of another for sustenance. In this sense, embryos and fetuses would be entitled to the same care and protection as any other person—while the vulnerable need care and protection, that protection can never extend to the point that the bodily autonomy of another may be violated. A sick patient in need of a bone marrow transplant, for example, should be cared for and protected as much as possible, and every avenue available to secure him a bone marrow transplant should be pursued. However, it would never be permissible to forcibly extract bone marrow from an unwilling ‘donor’, and our refusal to do so is not typically interpreted as a refusal to care for the patient. Similarly, if it were possible to care for an embryo or fetus without encroaching on another person's bodily autonomy, then I would favour pursing that option and, if a fetus survives an abortion, then I do believe the infant should be given the same level of care and protection as any comparable newborn.
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