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After-birth and before-birth personhood: why the baby should live
  1. Nikolaus Johannes Knoepffler,
  2. Martin J O'Malley
  1. Chair of Applied Ethics, Friedrich Schiller University Jena, Jena, Germany
  1. Correspondence to Professor Nikolaus Johannes Knoepffler, Department of Ethics in Science, University of Jena, Zwaetzengasse 3, Jena 07743, Germany; n.knoepffler{at}uni-jena.de

Abstract

The basic human experience of the atrocities in the first half of the 20th century has significantly strengthened the recognition of human dignity and human rights for all born people at the political level. Therefore, the Charter of the United Nations in 1945 and its Universal Declaration of Human Rights of 1948, Article 1 affirms: ‘All human beings are born free and equal in dignity and rights’. This article provides an ethical justification of why we in this political consensus should not waver, and why we should grant the right to life to all born human infants. Moreover, there is an ethical justification to granting the right to life even to unborn human beings, who already bear a human face.

  • Abortion
  • Human Dignity
  • Mentally Ill and Disabled Persons
  • Newborns and Minors

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Introduction

Alberto Giubilini and Francesca Minerva's recent article ‘After-birth abortion: why should the baby live?’1 in the Journal of Medical Ethics raised a storm of discussion on topics relevant to abortion and pre/postnatal disease. Giubilini and Minerva's conclusion actually has two basic arguments, although they are not distinguished as such in their article. We spell these out first to deal with the issues they raise.

The first argument is a deductive one that begins with the reality that late-term abortion is already accepted for both medical and non-medical reasons. Given that subjects recognised as persons possess rights, the, at least tolerated, practice of terminating the fetus already performatively demonstrates the non-person status of the fetus. It is clear that, at present, the passage of the fetus through the birth canal functions as the person-granting moment, but that does not seem to be a sufficient ‘cause’ or grounds for personhood. The actual attributes and specific capacities of the fetus are not substantially altered by its location outside of the mother after birth. Thus, the recognition of the newborn as a legal person is a socially dependent reality—society makes this decision for reasons that it itself deems acceptable. The subjective nature of person-granting recognition means that a later recognition of personhood is also theoretically possible. And the argument is made to push that moment instead to some point after the newborn's birth.

The second argument is an essentialist argument and distinct from the first. Both are used to support the non-person status of newborns, but the second one does this by arguing that the newborn lacks ‘those properties’ needed to be a person. The condition Giubilini and Minerva offer is this: the individual has a stage of mental development with the capacity to attribute some basic value to their own existence. The argument is that, since newborns do not possess this capacity, they do not possess personhood and the rights attached to that status. Once this non-person status has been assigned, the same arguments used for the management of the fetus apply to the management of the newborn.

The distinction of the two arguments makes it possible to address them directly. The first argument is quite compelling for two reasons: first, the present practice of recognising the newborn as a person is a matter of social conviction and is therefore subjective; and second, while not directly arguing this, it highlights the relatively unconvincing support for birth as providing some essential or objective grounds for person status. In fact, the rationale of identical properties is often made by those who would support the opposite conclusion, that the fetus should be granted the same moral status as the newborn. In both cases, the argument focuses on the newborn's capacities as equivalent to those of the pre-born fetus, and they assume that the birth act itself does not provide sufficient objective grounds for changing moral status. What the deductive argument does not do, however, is make the case that the moral status must have essential or objective grounds in some property or properties of the newborn.

The quest for essential or objective grounds underlies the second argument, but the assumption that such a grounding is necessary or even possible is also not addressed here. Rather, it is assumed that we need some basis for personhood such that the following statement can be made: X is a person because they possess Y (where Y represents a stage of development, a potential or actual capacity, or whatever).

In the following discussion, we will explore the implications of the essentialist position, regardless of the essentialist criteria. And we will briefly address why many of the present concepts of personhood are unsatisfactory insofar as they are exclusively essentialist (whether in a Lockean or Roman Catholic natural law way). We propose a means of understanding the concept ‘person’ on the one hand as an open descriptive concept, but on the other hand as a distinct prescriptive concept. As such, the social action of attributing personhood is a judgement of social value, which may consider many relevant things, such as the properties of the fetus and newborn, but also many other things.

We reflect on the current moral consensus regarding the recognition of all born human beings as persons, without exception, and the implied ethical imperatives that follow on from such recognition. Person status minimally implies a right to life, to the extent that the person is not a threat to other persons. This recognition of personhood is a social act reflecting a moral commitment. It is therefore potentially legitimate in a secular society, otherwise lacking common religious, ontological or philosophical convictions, for birth to function as the moment when personhood is attributed. Yet we would place that moment much earlier, and make the argument that the recognition of the human as person should correspond to the moment when the fetus is recognisably human—that is, when it bears the features of the human face.

Personhood as an open descriptive concept

Current debates on the person concept can be generally distinguished from the way it functions descriptively or prescriptively.

Thomas Aquinas, borrowing from Boethius, offers a classical descriptive definition: ‘the person is an individual substance with a rational nature’.2 Although the terminology of soul and substance may suggest dualism, the exact opposite is the case in Aquinas’ approach; the human, with its rational soul, becomes a ‘person’ in the individuated substance. Either body or soul alone is incomplete, merely abstraction. Following Aristotle, Aquinas explains what it means to be human according to the four causes of hylomorphic ontology: material, formal, efficient and final. Material cause is the substance or matter, and parents are the efficient cause. It is important for the present argument, however, to grasp the insight of formal and final causes. For Aristotle and Aquinas, the soul is to the body as form is to matter. In this sense, the soul is the life principle, which for humans is best identified by a rational nature. But it really includes everything that it means to be human, including our biological, psychological and intellectual ‘natures’. To state the obvious, it is not some ghost dwelling in a human-shaped fleshy puppet. And final cause explains the dynamic order of the individuated substance; it is the purpose or goal of the thing, which for humans is complex, but it is not beyond our capacities to reflect on how we live meaningfully as humans.

These four causes are relevant to the present discussion on personhood because they describe what it means to be human without necessarily being essentialist. The fetus is an individuated substance efficiently caused by the parents and is already embarked upon the path that constitutes its final cause. It is not merely a bundle of capacities (ability to feel, suffer, see, know, or whatever) waiting to be actuated at some moment. Rather, the fetus is a dynamic being already possessing an identity, which it will continue to possess through gestation, birth, the early years and beyond until, if lucky, it dies at a good age. This identity, which is completely unique, is the expression of a vastly complex range of genetic, familial, cultural and environmental factors. The formal cause helps explain what is common to the human species composed of such unique individuals. The final cause helps explain what gives meaning to human life. Yet the importance of the individual is never lost, because the causes can only be relevant to the individuated form living its unique life and experiencing it in a linear historical way.

Setting aside the question about when personhood should be recognised, it makes more sense to view the process of human development (including gestation) as a continuum rather than as having a build up of capacities and then a single activation, which we can somehow empirically or definitively identify. Such an account continues to leave the moment when personhood should be recognised somewhat hazy. However, the 14-day mark takes into account all the facts that constitute our life story. There is even concrete evidence. Our neural networks, which start around day 14, are influenced by the events experienced, which start with the interaction between the mother and the embryo after implantation. All experiences are expressed in our bodies over the years of life that we have had up until then. Each event leaves traces in us and changes us, although mostly unnoticed. In fact, every single one of us would not be the same if our life story had been different, in a small or large way. Distinct histories and perspectives make each individual unique and not interchangeable.3 The approach one takes for understanding the human person is critical for judging when personhood should be recognised. We believe that there are good reasons to recognise personhood in the experiencing subject. An open descriptive account is most adequate for grasping the vast reality of human experiences that make us who we are as persons.

With far-reaching consequences for our topic, the present concept of person not only distinguishes itself from essentialist-founded dualistic person concepts, but also especially from the essentialist person concepts based generally upon the philosophy of John Locke, including those of Singer and Giubilini/Minerva. For Locke, the empirical events that one can remember are relevant for establishing one's present identity. For example, I remember my first day of school at the age of six and I ‘identify myself’ with that six-year-old who attended school those many years ago. In this tradition, Peter Singer4 sees person in the sense of a rational and self-conscious being: “In any case, I propose to use ‘person’ in the sense of a rational, self-aware being, to capture those elements of the popular sense of ‘human being’ that are not covered by ‘member of the species Homo sapiens’”. Giubilini and Minerva also follow this practice when they define person: ‘We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value that being deprived of this existence represents a loss to her.’1

It would be very difficult to conclusively resolve the debate over the concept of person as a descriptive one. It suffices to show that there are well-founded concepts of personhood that differ from the concept of Giubilini and Minerva.

Personhood and the significance of the ‘thread in the fabric of rules’ (Beauchamp and Childress5)

What is the main problem in saying: “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 potential human beings and persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’”?1 If this is true, then people with severe mental disabilities, people with dementia of a certain severity, and patients in an irreversible vegetative state have also lost their right to life. But this destroys the consensus of the international community to no longer allow exclusion of people because of certain properties, mental properties here, from among those who have the right to life. This consensus had emerged with good reason.6

In 1945, the world community knew the full extent of the Nazi's crimes against the Jewish people, the Sinti and Roma, and handicapped human beings, not to mention all the other persecuted people. The brutal murder of millions of innocent people was a singular crime that, together with the other atrocities of the period, awakened the consciences of people across the world. These Nazi atrocities are founded on two principles.

First, you are nothing, and the nation is everything. Second, the Aryan race is uniquely valuable; all other races are inferior and some should be destroyed.

This motivated the establishment of the United Nations Charter (1945) and the Universal Declaration of Human Rights (1948) to affirm the principle of human dignity and the moral right to life of every born human being: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ The Universal Declaration of Human Rights must be understood as standing in contraposition to the two Nazi principles in the following sense. First, the principle of human dignity and the moral right to life affirm the conviction that every person possesses a fundamental subject status. This means that the individual may never be sacrificed for another purpose, whether that purpose is for the nation or a utilitarian principle of increasing the happiness of the greatest number of people. Second, the principle of human dignity and the moral right to life affirm the fundamental equality of all human beings, regardless of race, skin colour, gender, religious or philosophical convictions, wealth, or capacities.

It was this terrible experience of the violation of the right to life of born people that led to the common world-wide conviction that no properties or capacities are needed to justify the right to life of any born human being–just simply his/her membership of the human family. The real innovation of this Declaration of Human Rights is that it made it clear that the right to life does not depend on properties or status or actions, but only on being a member of the human family. This is not just speciesism, but the radical recognition that every born person is part of the human rights community, and thus his/her right to life should never again depend on something else. Otherwise, people could be excluded from the legal community because of certain properties, as exemplified by the Nazi T4 programme: people were killed against their will just because of a mental or other disability.

Beauchamp and Childress5 very convincingly identified the problem of what it also means if the prohibition of homicide is violated: ‘Rules in our moral code against passively or actively causing the death of another person are not isolated fragments. They are threads in a fabric of rules that uphold respect for human life. The more threads we remove, the weaker the fabric may become. If we focus on the modification of attitudes and beliefs, not merely on rules, shifts in public policy may also erode the general attitude of respect for life. Prohibitions are often both instrumentally and symbolically important, and their removal could weaken a set of attitudes, as well as practices and restraints that we cannot replace.’

This means that it is important to have clear boundaries both for human actions concerning the taking of human life and to prevent anyone taking advantage of the weaknesses of the most vulnerable. For this reason, there is an ethical imperative to never surrender the right to living of born human beings, even when they attach no value to their own lives.

The open question of the right to life of the unborn

But how does this relate to an unborn human being? Why should the guarantee of the right to life for every human being regardless of their abilities or actions begin at birth? It is clear that the United Nations Declaration was a matter of defending the right to life of all born people because this right to life had been violated in a fundamental way. The abortion issue was not then a problem. Today, however, abortion is a key campaign issue, particularly in the USA.

As we have noted above, the question of when a person is a human being is an open one. Nonetheless, there is a date before which it is not conceptually possible to speak of a person. This time (ante quem) is determined by the classical definition: ‘Person is the individual substance of a rational being’.2 From this concept of an individual substance, it follows logically that before the time this individual substance is given, no human person can be present. From about the 14th day of pregnancy, when the formation of a primitive streak starts, twinning is possible—that is, the substance is divisible. Therefore, before the 14th day, it makes no sense to speak of an individual substance. Up until the 14-day mark, the zygote and blastocyst do not possess personhood. Therefore, before this 14-day mark, it would be too early to grant the right to life to the zygote or blastocyst. From this it follows that there may be reasons to allow research on zygotes or blastocysts or non-implantation after a pre-implantation genetic diagnosis. There may be reasons to use drugs that prevent the continuation of a pregnancy starting at this early stage—for example, a pregnancy resulting from rape.

Although we are arguing that the 14-day mark should be the primary moral boundary, the question should be raised: does the post-14-day fetus possess a moral right to life? Everything here will decide on the question of how we need to be careful. As shown above, the international community with its common, human experience and well-reasoned consensus should grant the right to life for all born people. We know from medical experience that an unborn human may be viable after the first half of the pregnancy. Furthermore, all organs have been created after the first trimester. The heart beats after the 4th week, and a human face can be identified after 6 weeks. This is why, as a precaution, we present the position: all people who have become ‘individua substantia’ should be included in the legal community of those who have the right to life. So the 14-day mark would not only be the date ante quem, but the timing of ad quem.

The 14-day boundary could also address the questions raised by Judith Thomson’s famous thought experiment on the topic of abortion.7 Thomson made the well-known comparison of pregnancy with a man who is forced without his consent to be connected for 9 months to a famous violinist so as to save his life. This is only satisfactory for pregnancy resulting from sexual intercourse during rape against the will of the woman concerned. Only in this case, would Thomson's comparison really be apt. An early abortion by pill would not be a violation of the right to life of the early embryo, because it is not yet a person. The self-determination of the woman takes precedence over the continued existence of the early embryo.

Thomson also discussed another problem: the mother's life is at risk from a pregnancy at an older age and her life can only be saved if the unborn child were aborted—that is, killed. This conflict can be ethically resolved as follows. As the mother certainly has the right to life and the unborn child has provisionally been granted the right to life, the mother must decide if she wants to save her own life at the expense of the life of the child. Interestingly, even Catholic bishops concede the possibility of abortion: ‘Here the situation is so dramatic that all parties are faced with a serious personal conflict, where the ethical categories appear on the sanctity of life to fail. The ethical requirement to leave in such a case nature to take its course causing the death for both mother and child is generally perceived as inhumane.’8 Against this background, the global consensus appears to opt for the mother's life and disobey the commandment against killing. In this exceptional situation, there is no danger of disturbing ‘threads in the fabric of rules that uphold respect for human life’.5

Conclusion

We do not require recourse to religious argument about the sanctity of life to defend the ethical imperative that we should not kill people born with missing features. The human experience of violation of the right to life of born human beings gives enough power to the world-wide moral conviction that we as a human family will never again allow born human beings to be killed just because they lack certain capacities.

On the other hand, the question of the ethical acceptability of abortion remains open. It depends crucially on whether one starts from the conviction, as a safeguard, that all human embryos when individuated should be granted the right to life. In our opinion, when in doubt we should opt for the right to life.

References

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Footnotes

  • Contributors NJK and MO contributed equally to the manuscript.

  • Competing interests None.

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

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