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The moral status of babies
  1. Andrew McGee
  1. Correspondence to Dr Andrew McGee, Faculty of Law, Health Law Research Centre, Queensland University of Technology, C Block, 2 George Street, Brisbane, Qld 4001, Australia; a.mcgee{at}


In their controversial paper ‘After-birth abortion’, Alberto Giubilini and Francesca Minerva argue that there is no rational basis for allowing abortion but prohibiting infanticide (‘after-birth abortion’). We ought in all consistency either to allow both or prohibit both. This paper rejects their claim, arguing that much-neglected considerations in philosophical discussions of this issue are capable of explaining why we currently permit abortion in some circumstances, while prohibiting infanticide.

  • Abortion
  • Newborns and Minors
  • Embryos and Fetuses
  • Infanticide
  • Speciesism

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In spite of the unsavoury backlash that their article has created, the paper recently published in the Journal of Medical Ethics by philosophers, Alberto Giubilini and Francesca Minerva,1 is to be welcomed. In their paper, they raise again a challenge that, as the editor Julian Savulescu has noted,2 has been raised before by the most eminent bioethicists and philosophers in the world, but which has not yet received an adequate answer: if we accept the moral permissibility of abortion, but not the moral permissibility of infanticide, how do we justify our position? It seems to be essential to find some rational basis for distinguishing morally between the fetus and the newborn healthy baby, otherwise our moral stance is incoherent. Giubilini and Minerva are posing this question for us once again, and are suggesting that, rationally, there may just be no coherent basis for relevantly distinguishing the fetus and the newborn. As they make clear in a recent blog post, this does not mean they are advocating the legalisation of infanticide.3 It is simply a challenge to us to find a way to distinguish relevantly between the fetus and the newborn, and is therefore an invitation to further dialogue on the issue. In this paper, I intend to take up their challenge, and to propose an approach that I believe offers a solution.

The challenge raised by the authors’ arguments

The argument of Giubilini and Minerva can be shortly stated. There is no morally relevant difference between the capacities of the fetus and those of a newborn baby.1 But only a difference in the capacities of the two entities can justify a difference in obligations towards them. For example, neither the fetus nor the newborn has the capacity to be aware of itself as an existing entity with a future, and so neither of them has the capacity to form long-term aims or goals. Yet these capacities distinguish human beings at a particular stage of maturity from most animals. They are the capacities that have been said to define persons. The unique capacities to form long-term aims and projects confer on persons correspondingly unique rights and responsibilities, and the frustration of those aims and projects that would result if a person is killed is a serious kind of harm. Because the fetus and the newborn do not possess these capacities, they are not persons, and so are not the bearers of the rights and obligations that apply to persons.1 Unless some other justification can be found for conferring on them the right to life, neither has a right to life, for they cannot be harmed by being killed in the way that persons can be.

In spite of this reasoning of Giubilini and Minerva, many people believe that abortion should be permitted, in at least some circumstances. Many also believe that an early abortion is less wrong than a late-term abortion. Most, on the other hand, believe infanticide is wrong. However, if Giubilini and Minerva are correct, this position is irrational; we cannot rationally believe that abortion is permissible, but infanticide is not.

Is there a rational way of accepting the permissibility of abortion, but ruling out the permissibility of infanticide? I believe there is. In the first part of this paper, I will focus on explaining why we have set up the moral (and legal) rule that it is wrong to kill infants. I will then attempt to rebut some objections to my claims. Finally, in the conclusion, I will broach the question of why we might have different rules in relation to the fetus and embryo, as distinct from a newborn.

Meeting the challenge

Rejecting the relevance of the distinction between short-term desires or needs and long-term goals

We should begin by rejecting the relevance of the distinction between short-term desires or needs and long-term goals. As any mother will attest, a newborn baby has many immediate desires he or she wants satisfied, such as the need to suckle the mother's breast. There is no genuine reason to believe that they should count any less than the longer-term goals of persons.

Philosophers have thought otherwise because they have been immediately struck by a consistency problem. If we allow the short-term desires of non-persons, such as a late-term fetus and a newborn, to have equal significance to the long-term aims of persons, then we must concede that it is also wrong to kill animals. Yet most meat-eaters are untroubled by the fact that animals have been killed to provide their food. If we react by claiming that the late-term fetus and newborn are different from animals, we are guilty of speciesism, which is as bad as racism. The only other option, it seems, is to give up killing animals. This is the primary consideration that drives Giubilini and Minerva, and the philosophers whose work has influenced them, to assert that we do no harm to a newborn if we kill it.i

The place of instinct and emotion in our moral framework

However, the analogy between speciesism and racism is faulty. It assumes that the protection we afford to our own flesh and blood is, like racism, the product of false beliefs or faulty reasoning. In fact, however, there is something primal about protecting our own flesh and blood, about the value we place on their wants and needs. These are the product, not of reasoning, but of instinct, and the emotional attitudes bound up with that instinct.ii One obviously fundamental emotional attitude is that of love for one's offspring.

The authors might respond: ‘Why is that relevant? Instinct and emotional bonds have no place whatsoever in moral discussion, for they tell us nothing about how we ought to respond to our newborns, and towards animals.’

But the point is that there is a limit to the kinds of practices and attitudes we adopt that can meaningfully be subject to moral scrutiny. That we care for our own offspring (more than, say, the offspring of other animals) is as natural to us as walking upright, so it makes just as little sense to question whether we ought to care for our own offspring in this way as it does to question whether we ought to walk upright.iii The fact that we are rational creatures and can think about what we do, and about whether we ought to continue to do what we do, has important limitations. I can reflect on whether I ought to have more or fewer children, but not on whether, having had a child, I should care for the newborn any more than I should care for a fox. It is reasonable to consider someone who asked themselves that question to be demonstrating a kind of madness. How we care about our own can be as instinctive and as necessary to us as the need to eat, something we just cannot help but do. The terrible pain and grief of those who have lost loved ones is testimony to this. Lives can be irreparably shattered when a daughter is murdered or killed in a car accident or a toddler is snatched never to be seen again.

My claim is, then, that these facts about our maternal or paternal instincts and our consequent emotional make-up are background conditions which have served as the basis for the erection of moral norms, such as the norm that we ought not to kill our offspring. Our lives are defined in large part in terms of our relationships with our loved ones and, especially, our offspring. The value we afford to human life therefore stems from the central role our loved ones play in our lives, and the meaning they give to them.

There are, of course, occasions where the mother does not bond with her newborn. But those exceptions are not the rule, and they illustrate an important lesson of my account: our norm that it is wrong to kill a newborn is erected on the basis of instincts and accompanying emotional attitudes that most of us share, and it is by appeal to those norms that we condemn mothers who seriously want to kill their babies or who feel no emotion at the prospect of doing so. But if many of us no longer wanted our children, or started to feel nothing for our offspring, we might abandon the norm. To that extent, our moral system remains contingent, rather than necessary. But there is no more reason to believe that such a whole-scale change is likely than there is to believe that we might all wake up one day being able to fly.

Objections and replies

Objection from earlier practices of infanticide

It might be objected that earlier (and some current) practices of infanticide undermine my claim.4 Two important points should be noted in reply. First, the practice can be misleadingly described. In hunter–gatherer societies, infanticide was practised out of material necessities we can only imagine. When more young were born than could be raised, or seriously ill children were born, those societies did not have the options we have today. The availability of such options can bring about a shift in our expectations, and therefore in the norms we are willing to adopt. Further, in some cases, ceremony and grief accompanied the practices, representing an acknowledgement that infanticide was not taken lightly. Sacrifices to supernatural figures might be read as primitive superstition, but an alternative way of reading these practices is to see them as the implementation of momentous decisions—that is, as practices whose ceremonial nature reflects the significance the participants attributed to the decision being taken. Further, even accounts that do not refer to religious ritual may be misleading. For leaving a child on a mountain top is not like leaving a child on a rubbish dump.

Second, it is important to recognise that little is known about the real psychological impact on mothers who sacrificed children out of social necessity, such as on the basis of gender. Social pressures may of course have an impact on how a mother might regard the birth of a girl, but it would be foolish to assume that infanticide in such cases is as easy for the mother as stepping on a snail, that she does not experience conflict or deep emotional and psychological torment in doing what she nonetheless feels she is compelled to do.

Philosophers are prone to over-rationalise things. Giubilini and Minerva state in a recent post3 that their paper ‘was meant to be a pure exercise of logic: if X, then Y’. But insufficient attention is given to the conditioning role our instincts and emotions play in the formation of our morality. Singer famously uses the example of orphans in his discussion, to avoid what he sees as the obscurity that might otherwise be introduced into the debate by the emotional ties of the parents.4 But this is a mistake. It is true that emotions can cloud moral debate, and can be the proper target of criticism. But in some contexts, consideration of emotions is essential because they help reveal rather than conceal the moral status of the entity towards which those emotions are directed.

Contrast, here, the way in which philosophers sometimes simply cite the fact that infanticide has been widely practised, with the following harrowing account of maternal suffering given by Dr Brian Hoolahan, an obstetrician in Nowra, Australia, who witnessed babies taken from unwed teenage mothers during a policy of forced adoption between the 1940s and 1970s: I remember the girls calling out ‘I just want to touch my baby, please let me see my baby’ and they were crying and howling and it was the most horrific thing I've ever seen in my life.iv

The pain, anguish and unimaginable enduring grief these mothers suffered all go to show the meaning of having a baby in human life, the central place it has in our emotional make-up. It is hard to believe that these responses are the product merely of culture, and do not run deep in us, down to the foundations of our being. These instinctive responses to the birth of one's child are the sources of its moral value.v It is senseless to ask if these mothers really ought to be having that kind of response to their children—whether, for example, they should feel the same way about the mice they set a trap for in the kitchen cupboard. It is because our offspring are so important to us that we set up the norm that it is wrong to kill our newborns and this explains why we care for their wants and

Does this account overlook the importance of reasoning one's way to a moral position?

It might be objected that my account places undue emphasis on our emotional attachments. A common moral failing is to act out of emotion rather than out of properly reasoned considerations. In making our capacity to form attachments to our offspring central to my account, am I not ignoring this common failing? Am I not also overlooking the role that reasoning rather than emotion should play in moral discussion?

My appeal to our instincts and emotional attitudes—such as our love for our offspring—to explain why we regard ourselves as owing moral responsibilities to a newborn is not equivalent to, or on the level of, an appeal to specific objective capacities in the infant. Rather, it is a more general elucidation of the meaning and place that childbirth and childrearing have in human life and the limits these phenomena place on the serious entertainment of some proposals from within our moral framework. My argument is that these phenomena—what I have called the background conditions of our moral norms—serve as disqualifying conditions for the serious entertainment of some proposals. For example, given the reaction of the Nowra women, the proposition that we should seriously entertain sacrificing our newborn healthy infant for the sake of a mouse, or the proposition that those women should care equally for the mouse as they do for their newborn son or daughter, are not ones we can take seriously.

Clearly this raises the question of how we draw the line between those fundamental background conditions of our moral framework (which disqualify the serious entertainment of some possibilities), and the kind of natural propensities and instinctive reactions we have that are the proper subject of moral scrutiny. This question is too large to address here, but a short reply is that it depends on the proposal concerned—but we know an example when we see it. The proposal that a mother ought to be allowed to kill a healthy newborn if she does not want it is, I am claiming, such a proposal. (On the difference between an embryo and a later-term fetus or newborn infant, see the conclusion below.)

Could the argument justify racism?

Does my emphasis on the role of instinct as a background condition of our moral norms mean that racism could be explained in the same way? For example, is it not instinctive for one tribe to mistrust another? This objection has partly been addressed in the last paragraph of the previous section, but two other points are noteworthy. First, instinctive mistrust does not always result in racist practices, as Australian Aboriginal norms for dealing with visitors from another tribe make clear.vii Further, mistrust, if it is to endure, will be based on beliefs. Second, racism is not comparable to the instinct to preserve and look after our young, for it simply has not been as endemic. The response of the Nowra women whose children were taken from them does not merely exhibit an attitude or set of beliefs that, through education and rational reflection, can be changed. Their reactions are far too immediate, visceral and deep for that. Racism, by contrast, is different, often being backed up by utterly false beliefs about the superior capacities of one's race—beliefs that are therefore amenable to being changed.


I have advanced two arguments. I have said that we need to broaden the notion of harm beyond personhood to the immediate desires and needs of a newborn human being. I have then claimed that this does not commit us to speciesism, because it is based not on false assumptions or beliefs about the capacities of other species versus those of our own, but on deep instincts and our emotional make up. These general features of our own nature and our relationship with our own flesh and blood lead us to set up the norm that it is wrong to kill our newborns, and so account for why we regard it as morally wrong to kill them. In that sense, they are the background condition of the moral value that we afford to the newborn.

Readers should note the limited reach of this claim. The claim made in this paper is only about the background conditions which limit the possibility of meaningfully questioning whether we ought to have norms reflecting our instinctive attitudes of love and concern for our own offspring. It does not follow from this, however, that the absence of any similar instinctive attitudes of love and concern towards animals means we have no responsibilities towards them.viii Indeed, it is precisely the absence of any similar instinctive attitudes of love and concern that opens up the space for a genuine moral debate about what our responsibilities to animals ought to be.

Finally, would the arguments presented here also apply to the fetus? I believe they would apply to later-term fetuses. I do not, however, believe that they necessarily apply to the earlier-term fetus or to the embryo. This has partly to do with the nature of the maternal and paternal bond with the developing embryo and fetus, and our sense that, at the early stages, our baby is only in the making. Generally speaking, our attachments to our kin form gradually as we become used to the news of a pregnancy and as we start to anticipate life with the baby. The later the term in a pregnancy, the stronger our attachments and responsibilities are likely to be, as a general rule. This is one reason why we might have come to consider a late-term abortion objectionable—why we might consider a mother who wants an abortion at that late stage, without a medical reason, to be exhibiting a callous disregard for her offspring. Such a reaction would naturally only intensify once the child is born, and a mother wanted to kill it. Birth marks the moment our offspring come into the world. The special moment of childbirth and the joy of holding your son or daughter for the very first time are monumental events in human life. It is at this point that so much ofix our responsibility towards them—our very life with them—truly begins. It is understandable that birth should therefore be regarded as a moment of no return, the point at which it is too late to consider options that might have been conceivable to us before this point. These facts are capable of explaining why we adopt different rules in the case of newborns from the rules we adopt in the case of the unborn child—they at least show that it is not irrational to adopt different rules for these cases and, to that extent, go some way to answering the inconsistency challenge raised by Giubilini and Minerva.


Thanks to Dr Sally Anne Sheldon, Dr Melanie Jansen and Paul Springthorpe for discussion and helpful comments. Thanks also to two anonymous reviewers.



  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i We might still wrong an animal if we cause it pain in killing it. But the wrong of killing animals that are not persons differs from the wrong of killing animals that are persons.

  • ii Can't racism be instinctive, as with the instinctive mistrust of one tribe for another? See ‘objections and replies’ below.

  • iii This is only an analogy—I am not implying that it is morally wrong to walk on all fours!

  • iv Sydney Morning Herald, 28 February 2012.

  • v This point is not affected by the rare occurrence in which a mother feels nothing for her baby, as already discussed above. It is the norm that makes it wrong, not the particular mother's state.

  • vi It might seem that this view comes close to one view taken by Singer,4 who claims that, while we cannot wrong a healthy newborn by killing it (because it is not a person), we may still wrong the parents by killing it. But Singer's view seems to mean that infants only have moral protection if they are, as it were, caught by the lasso of emotional attachment. On my position, it is a moral failure not to love the child and a wrong to the child.

  • vii Many Australian Aboriginal tribes have norms and customs for welcoming visitors from, and regulating engagement with, other tribes, and being of a different tribal group is no barrier to full integration into their tribes, to the point of being regarded as a family member, with rights and responsibilities under local tribal laws.

  • viii Some philosophers would question whether it is not possible to love animals in precisely the same way. Space prevents me from answering this objection adequately here, but it seems that our love of our own kin is of a different kind from the love that someone shows an animal. For discussion of these differences, see Gaita.5

  • ix Note I say ‘so much of’. I don't deny that we have some responsibilities towards our unborn child—for example, the responsibility to refrain from drinking alcohol. I am only saying that so much more responsibility begins at birth. At this time, a mother has to feed the child for the first time manually, and so must actually make conscious decisions to do so. She must protect the baby from danger, not leave it in a cot on its own for too long, ensure it is warm enough, is suitably occupied when it requires attention, etc. These issues do not arise during a pregnancy, when we rightly regard the mother as preparing for parenthood.

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