The common premise and its role in strong anti-abortion

I think that such hesitation and indeed scepticism about the common premise is abundantly justified by reflection. Let us take the anti-abortionist case first. Strong anti-abortionists often defend the ‘tiny person’ thesis by deploying the idea of potentiality. The argument is that a certain point in embryonic or fetal development (preferably conception) marks the decisive presence of the potential for being a fully functioning human person. Indeed, so important is the presence of this potential that it is equivalent to the presence of an individual human being leading Camosy and others to speak of it being already an individual rational substance. Destroying this potential is tantamount to killing that individual human being (or rational substance). But this manoeuvre has many problems. For one thing, it makes Norman Ford's argument difficult for the strong anti-abortionists to handle. Ford is no radical on these matters, and opposes very early abortion on the grounds that it destroys potential human life, but he argues that the embryo is not an individual human being (or person) until the appearance of the primitive streak at roughly 2 weeks after fertilisation. Prior to this we cannot have an individual human being because too many things are indeterminate, including whether the entity will be one being or more—twinning can still occur.3 On this view, there would seem to be a dramatic difference in status after 2 weeks so that the morning-after pill could no longer be regarded as a person-destroyer, even if it destroyed something that had the potential to become a human individual.

But even after the primitive streak stage, the question of potentiality is very ambiguous. We must be wary of the traps that can beset the use of adjectives like ‘potential’. ‘Potential’ does not function in the way many standard adjectives do. A happy dog is of course a dog, as a snappy tie is a tie, or a sad face a face. But just as a decoy duck is emphatically not a duck and an imaginary win is not a victory at all, so a potential champion is not yet a champion of any sort. Hence, the allegation that abortion kills a potential human being or potential person does not, even if true, amount to the charge of killing a human being or a person or even a human baby. Even if segmentation is an important step on the way to being a person in that a more individual pathway for human development is in place, this does not license the conclusion that the implanted embryo is now a human being on a par with a newborn baby or even a late-term fetus. (I thank Arthur Kuflik for helpful discussion of this point.) None of this is to deny, of course, that the potentiality of an entity sometimes provides a reason for according it some value or respect.

Similar things can be said about the idea that the embryo and early fetus have already been ‘programmed’ for a distinctive human life. Popular genetics has much to answer for, most notably the quasi-magical notion that an individual's genes dominate their choices and destiny—‘we are our genes!’ Religious people are inclined to resist genetic determinism and various forms of genetic reductionism—as indeed are more and more contemporary geneticists—and I am sure that they are right to do so. This makes it all the more surprising that strong anti-abortionists fasten on to fanciful elaborations of such ideas as ‘genetic code’ and ‘genetic programming’ for their own purposes. So they leap from the workaday significance of these concepts to dramatic conclusions about the presence of a small human being or person. This leap implies for some theologians the equivalence of the soul or ‘individual human substance’ to the chemical make-up of remarkable but primitive cellular life.

Much as the personhood of the fetus from conception is proclaimed by the strong anti-abortionists, it is hard to believe that it is seriously held in their hearts. The test of genuine belief is surely the commitment to its obvious consequences. Yet there are many ways in which these consequences are ignored or avoided. If the early fetus is a person, then we would expect its death in miscarriage or abortion to elicit some concern for burial rites but Catholic authorities, for example, have never required or urged anything of the sort. (Interestingly, Canon Law 871 states that ‘aborted fetuses, if they are alive, are to be baptised, in so far as this is possible.’ But pastoral practice is hardly in enthusiastic accord with this precept.) In fact, a very high percentage of normally fertilised human eggs are destroyed by natural processes, but no one treats this as a natural disaster akin to an earthquake. Nor does anyone seriously suggest some sort of baptism for stored embryos, created by the new birth technologies, when they are about to perish or be destroyed (allowed to die). Similarly, many anti-abortionists make an exception to the ban on killing the early fetus in cases of grave danger to the mother's life, and some make an exception in cases of rape or incest. Yet if these fetuses are persons or human beings in any morally significant sense, they are clearly innocent of the crime or risk that allows their death. This is so whether we treat ‘innocence’ as meaning ‘without moral fault’ or give it the meaning common in just war theory of ‘not doing harm’. Some theologians adopt this second interpretation and allow the killing of a fetus whose presence is endangering the mother's life because it is (or is like) an ‘unjust aggressor’. But the analogy with war is too remote: soldiers who try to kill you may be morally innocent (because they are ill-informed or coerced), but they are still trying to kill you and that is what licenses your lethal self-defence. The fetus has no such intent. (Contemporary philosophers would treat the life-endangering fetus in the category of ‘innocent threat’ and many would hold it licit to kill an innocent threat to one's life. But it is doubtful that traditional Catholic moral theology can follow this path.) Consistency for the ‘early fetus as person’ view can be achieved by denying the permissibility of early abortion in such cases, but it is consistency achieved at the cost of compassion and common sense.

The implausibility of the tiny person view suggests a deeper philosophical problem since the idea that the embryo or early fetus is already a human being with the same moral standing as other humans seems to fly in the face of the Aristotelian/Thomistic tradition's unitary approach to the reality of human persons. Following Aristotle, Aquinas sees the human soul as the form of the human body. Dualistic theories that view the human soul or mind as a distinct complete substance from the body may be able to envisage a human soul connected to anything at all—a stone or a frog perhaps. But for Thomas there is surely something absurd about a rational soul animating a tiny speck that does not have organs or sensation even though it has some prospect of eventually developing them. It is surely more plausible to place the moral significance of the developing human organism at the stage where the physical structures underlying sensation and thought are at least seriously in place. Dombrowski and Deltete argue that this happens only towards the end of the second trimester.4 There is clearly room for debate about these matters, but the standard Catholic view blocks this debate with its commitment to ‘immediate hominisation’ (as the Catholic theologian Donceel, who rejects the view, calls it5).

The common premise and its role in support of infanticide

I turn now to the use of the common premise in the pro-infanticide case. Here we enter a well-established form of argument that owes much to Peter Singer's attack upon speciesism, and has achieved something like orthodoxy status in the camp of secular bioethics. The line runs as follows.

There can surely be no moral weight attached merely to membership in the human species; to think there is such a weight is to delimit moral concern arbitrarily in the way that racists and sexists do when they give special moral significance to their groups. So we should avoid being ‘speciesist’ and give equal concern to the interests (preferences or whatever) of all creatures that have interests/preferences. This would seem to imply that there is nothing to choose between killing a human adult and a poisonous snake that is endangering her life and, indeed, where there are several such poisonous snakes in the vicinity, respect for their combined interests in survival should outweigh that of the human being. This constitutes an unwelcome outcome, even for the toughest-minded utilitarian, so a distinction is made between entities that are persons (in a special philosopher's sense) and other entities and, where the adult human being is a person and the snakes are not, then the killing of the person represents a greater wrong than the killing of the snakes. So it turns out that there is a privileged group for the anti-speciesist after all; it is the group or kind of persons. But this doesn't privilege human beings, insists the anti-speciesist, since it is only a contingent fact that, as far as we know, only human beings are persons and, moreover, some human beings are not persons, most notably human fetuses and newborn babies.

So we find Giubilini and Minerva saying: Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’. We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her.1

Here they follow the tradition I mentioned earlier. Compare Peter Singer: … our superior mental powers—our self-awareness, our rationality, our moral sense, our autonomy, or some combination of these. They are the kinds of things, we are inclined to say, which make us ‘uniquely human’. To be more precise, they are the kinds of thing that make us persons.7

So the crucial idea has been developed by the anti-speciesism theorists that there are a small set of characteristics that define a special type of individual—a person—and these qualities are such as to give such individuals a moral right not to be killed (although for utilitarians like Singer the talk of a ‘right’ is a sort of shorthand for some story about best outcomes). There is some vagueness about what these characteristics are and how they should operate separately or together to determine personhood. Mary Anne Warren, for instance, lists five conditions including ‘the developed capacity to solve new and relatively complex problems’, ‘the presence of self-concepts and self-awareness, either individual or racial (sic!), or both’, ‘the capacity to communicate, by whatever means, messages of an indefinite variety of types, that is not just with an indefinite number of possible contents, but on indefinitely many topics’.8

Let us backtrack a little here. The argument against giving special moral weight to membership of the human species or kind begins by comparing such partiality to the prejudices of racism and sexism and then says that our rejection of them should lead by analogy and extension to the rejection of what Bernard Williams has called ‘the human prejudice’. But this is a feeble argument, as can be demonstrated by the fact that those who rightly rejected racism and sexism invariably did so by appealing precisely to the humanity of those people in the other races and sex. They forced the racists and sexists to face up to the fact that the despised others were human beings like themselves. It is a perfectly consistent and powerful critique of racist positions to reject the claims underpinning racist theories which insist that the excluded groups are not really human, but ‘sub-human’ or in other ways profoundly inferior to the paradigm human type. There are, apparently, various native peoples whose languages reserved some honorific term meaning ‘human being’ solely for members of the tribe, and this curious practice helped them treat outsiders as so fundamentally other as to permit various cruelties and exterminations. The anti-racist need only emphasise the deep similarities and continuities between people; he or she does not have to get into complex abstruse questions about what beings in the universe can be said to have such weird things as interests. And much the same can be said for various attempts to portray women as somehow lacking in true humanity.

At this point it will probably be conceded that people have successfully opposed racism (and sexism) on the ground of inclusiveness in the human kind, but then urged that they have—from a purely rational or philosophical point of view—been wrong to do so. There is nothing about being human that can ground such a critique. But this cannot be right since there are all sorts of things about being human which form the bases for moral judgement and critique, such as capacity to suffer pain, humiliation, oppression, deprivation at the loss of loved ones, diminishment at the loss of freedom and, on the positive side, capacity to direct one's life according to values (either given or chosen), the capacity to love, to respond morally to the plight and activity of others, and so on. Some of these—for example, the capacity to suffer pain—are not distinctively human but are shared with some other species. Nonetheless, they constitute a cluster of facts about being human that moral judgements need to take into account. Moreover, there are a number of these capacities that are distinctively human and contribute to the unique achievements, both commonplace and extraordinary, that human beings have recorded. Human beings have, for instance, achieved a developed understanding of their world through science, literature, philosophy, history and (some of us think) theology against which the purported successes of Washoe and his brethren pale into insignificance. And, as has often been remarked, we are the only species considering whether we should reform our attitudes and practices towards other species as a matter of principle. The higher primates do many interesting things but they do not debate and discuss ways of dealing morally with us. Although there are precursors and intimations of morality in other species, we are the only species who are capable of genuinely moral behaviour—both for good or ill, for nobility and, far too often, for wickedness.

So it seems that humankind has a quite distinct place in the universe of morality as we encounter it. This is so even if there are difficulties in spelling out the nature of some of the properties that make for this distinctive place. Indeed, on some interpretations of the sort of properties listed by Warren, for example, very many human beings beyond babyhood would come up short of ‘personhood’—how many perfectly normal adult humans have the working skill suggested by Warren's talk of a capacity to communicate with an indefinite variety of types on indefinitely many topics? But, of course, we can see what she is getting at if we think in terms of characteristic capacities of the kind ‘human’ relevant to moral consideration. This is a point to which I shall return.

Nonetheless, there is more to consider about the speciesist allegation. The first thing concerns the moral theory or moral thinking (for those who don't like theory in ethics) that one brings to the question of how to treat various beings. My own neo-Aristotelian approach would be concerned to attend to the kind of beings in question in order to determine what would constitute flourishing for a being of that kind and what would be damaging to the prospects and actuality of that flourishing. It would, of course, begin with human beings since they are the only beings in a position to consider the question and act on the answers. (There are interesting questions about the extension of this approach to beings other than human or even rational beings and to beings that are hostile to the flourishing of human beings, but we will not be able to address those here.) The wielders of the ‘speciesist’ weapon, by contrast, tend to think of ethics in very abstract terms concerned with maximising preferences or honouring rights of a wide variety of beings, irrespective of their nature other than their being bearers of preferences or rights. An impartial observer or some other neutral device is often employed to scrutinise and judge the outcome. Many years ago, in an influential article supporting the device, Roderick Firth described this observer as ‘omniscient, disinterested, dispassionate, but otherwise normal’, a description which somewhat comically captures the unreality of the proposed device.9

A second sort of consideration concerns the interpretation to be given to the significance of species characteristics. Here there is a contrast to be made, on the one hand between those with a holistic outlook who take the cluster of kind attributes to be important for moral status for any genuine member of the kind whether or not it possesses some or all of those characteristics at the time of consideration and, on the other hand, those with an atomistic outlook who look for the instantiation of the cluster (or some preferred item(s) in it) on an individualistic case by case basis. The latter approach is the one that fits naturally with the philosophers’ special category of persons, since membership in this category is defined not by anything to do with natural origin, development or kinship but by an individual's actual possession of the special characteristics.

This is a polar opposition, and more refinement could be brought to it by considering positions in between the two poles and perhaps other distinctions, but the contrast is at the heart of much debate in the area. The primary point of interest is whether we should be impressed solely by the presence of valuable occurrent characteristics or abilities in individuals, or whether other features related to the valuable kind characteristics like potentiality, connection with other individuals of the kind, dim, fragmentary or incomplete possession of the characteristics or current history of membership in the kind should count as well. Peter Singer (among other infanticidists) is fond of rejecting any strong appeal to membership of the human kind by contrasting unfavourably the level of intelligence and awareness of some fully developed animal with the more limited scope of a young child or baby. Here he follows Bentham, who claims that ‘a full-grown horse or dog is beyond comparison a more rational as well as a more conversable animal than an infant of a day or a week or even a month old’.10 The mind boggles at the sorts of conversations Bentham was prone to have with horses and dogs, but it is worth noting that Bentham is but one of many philosophers who consistently underrate the abilities of even very young infants. As has been pointed out by Brian Scarlett in a recent article, psychological studies of very young children confirm the signs of sociability, complex awareness and responsiveness that parents have frequently insisted upon in the face of condescension from philosophers.11 Nonetheless, ignoring such possible distortions in the comparison, we might note that what we are comparing is an immature human being—indeed an immature person (in the philosophically favoured sense of that elusive term)—with a mature animal who will never be anything else. If human beings as a kind are morally important because of the kind characteristics, it is not surprising or logically bad form for them to value beings that have these characteristics, even where these beings have these characteristics in the primitive state one would expect of the immature. It is, moreover, equally unsurprising that they should give moral preference to the immature human person over the mature animal. I think that similar points can be made about damaged, disabled and senile human beings, although there may be a point at which the damage is so extreme that other moral factors enter in. Someone who is entirely brain dead and kept breathing and physically functioning only by courtesy of a machine is arguably no more a human being than a corpse. (I do not want to ignore the fact that we may have all sorts of moral obligations to ex-human beings such as corpses, but that is I think another story.)

When the infanticidists casually assert (compare the quote from Giubilini and Minerva above) that the early fetus or the embryo is ‘certainly’ a human being, the absurdity of what they say should be registered. As Bernard Williams has pointed out, the embryo is certainly human—as, indeed, are various cells in a human body and such things as fingernails and hearts—but it is a long haul from this fact to the idea that the embryo is a human being in any normally understood sense of that expression.12 In ordinary discourse, the term ‘human being’ is a kind name like ‘pig’ or ‘oak tree’, and it is simply absurd to think of a pig embryo as a pig, an acorn as an oak tree, or an embryo as a human being. A fertilised human embryo in a dish or freezer in a medical laboratory is not a human being, although it is an interesting and significant precursor of one. Of course, matters may be different (I think they are) when a human fetus reaches an advanced stage of development, as I suggested above. It may be useful to distinguish three sorts of tendencies or dispositions that things can have: potentialities, capacities and abilities. An embryo or early fetus has certain potentialities in that it can eventually (all going well) become a being with capacities to feel, to think, to sympathise, and so on. A being with such capacities need not yet itself possess the working abilities that such capacities make possible, but it will have developing structures in place that make the emergence of those abilities possible and, in the absence of interfering circumstances, likely.

Concern for non-standard members of our own kind seems to me as basic a moral desideratum as a concern for the relief of pain or the promotion of comfort. Bentham's remark (quoted approvingly by Singer in several places) that infanticide is ‘of a nature not to give the slightest inquietude to the most timid imagination’13 strikes me as truly staggering. Singer glosses the remark as follows: ‘Once we are old enough to comprehend the policy, we are too old to be threatened by it’.14 But if this is what Bentham meant, and it seems a possible construal, then it shows a profound lack of imagination with respect to what people find threatening. Indeed, the very idea that people can only find threatening those policies that endanger them at some advanced age presents an individualist, short-sighted, self-interested picture of human concerns that is truly frightening in its remoteness from reality. This remoteness is one thing clearly demonstrated by the furore about Giubilini and Minerva's philosophical views on infanticide—confused, strident, authoritarian and even threatening as much of that outcry has been. In fairness to Bentham, incidentally, the remark quoted by Singer is not offered by the great utilitarian as positively supporting the practice of infanticide, a practice which he roundly condemns. Indeed, he describes nations that practice it as barbaric. The remark, though not entirely clear, is connected with his somewhat technical concept of ‘alarms’ and is geared towards distinguishing different sorts of crime and different sorts of punishment appropriate to them.

This remoteness connects with another strand in the case against speciesism that calls for some comment. Peter Singer's brand of utilitarianism is a very cool version in which the part that emotions play is largely to distract from the proper deliverances of reason. So, he says of the revulsion that parents (and others) feel towards the idea that there is no intrinsic reason against killing an infant: ‘In thinking about this matter we should put aside feelings based on the small, helpless and sometimes cute appearance of human infants. To think that the lives of infants are of special value because infants are small and cute is on a par with thinking that a baby seal with its soft white fur coat and large round eyes deserves greater protection than a gorilla, who lacks these attributes’.14 But this is to trivialise the emotions that human beings, especially parents, feel towards their young. It is not just that the babies look small and cute and so we feel mushy about them. Indeed, it is somewhat the other way round: it is because we have certain basic instinctual reactions to our own young that we tend to see them as ‘cute’. These reactions are connected with the centrality of the relations of mothering and fathering, and the emotional ties that pregnancy and birth characteristically produce. They clearly have an evolutionary significance, but that is not my present concern since, whatever broad theory is invoked, the function of such emotions in the moral life is palpably positive in general terms. There is a range of emotions of this kind which are rightly called moral, and which figure in different ways in the moral economy. They include such emotions and ‘reactive attitudes’ as those Strawson discusses in his ‘Freedom and Resentment’ essay.15 The failure to give a satisfactory account of the central role of such emotions is, I think, a defect of the sort of utilitarianism that Singer supports. That is why I referred to his dismissal of feelings about babies as the mere effect of a perception of cuteness as a trivialisation of the issue of moral emotions.

There is, of course, a great deal more that could be said about the issues I have raised here. One point that I should clarify, however briefly, is that I do not intend my criticisms of the common assumption to indicate any easy dismissal of what seem to me to be genuine concerns that many bioethicists and indeed ordinary folk have about the right treatment or non-treatment of babies who are born with very severe abnormalities including those with apparently no cortical brain function at all. It may indeed be that, in some sense of ‘preferable’, death is preferable to life for some such unfortunate infants. There are knotty problems around such cases that my criticisms are not intended to address and which cannot be dismissed with easy appeals to a ‘right to life’. Nor am I objecting to all those with a so-called ‘liberal’ view of abortion; indeed, there are many such who accept early abortion but reject (or show extreme caution about) late term abortion and infanticide. The American philosopher Jane English, sadly killed in an accident at an early age, was only one such; she was sceptical about the philosophers’ personhood category but thought that, if you accepted it or something like it, you also needed to think of the newborn infant as at least something very like a person and have a more nuanced attitude to its moral status than, for instance, Giubilini and Minerva.15 My problem is rather with the way the infanticidists are driven by the common premise to treat perfectly normal babies as in themselves simply disposable. Cicero once observed that there is no absurdity but that some philosopher has said it (De Divinatione, II, 119). As a caution against this philosophical tendency, Moore insisted that healthy convictions like our certainty that each of us has a head upon our shoulders were better anchored epistemically than any sceptical arguments against them. The sceptic's conclusion suggests something drastically wrong with her premises or reasoning. No doubt ethics has a different domain from that of common knowledge of the observable environment, but it is also important to preserve one's sanity therein. I do not suggest that the infanticidists are insane nor would I impugn their intellectual skill or integrity, but on this matter they seem to me on the verge of losing their grip on reality, as the strong anti-abortionists already appear to have done. To both groups I offer, in a spirit of charity, a therapeutic solution to the malady: abandon the common premise.