If Abortion, then Infanticide

Abstract

Our contention is that all of the major arguments for abortion are also arguments for permitting infanticide. One cannot distinguish the fetus from the infant in terms of a morally significant intrinsic property, nor are they morally discernible in terms of standing in different relationships to others. The logic of our position is that if such arguments justify abortion, then they also justify infanticide. If we are right that infanticide is not justified, then such arguments will fail to justify abortion. We respond to those philosophers who accept infanticide by putting forth a novel account of how the mindless can be wronged which serves to distinguish morally significant potential from morally irrelevant potential. This allows our account to avoid the standard objection that many entities possess a potential for personhood which we are intuitively under no obligation to further or protect.

Introduction

It is frequently claimed that there is no common ground between abortion defenders and opponents. One side may believe that the existence of a divinely created soul bestows value upon its possessor, or that mere membership in the human species warrants special protection, or that fetuses are persons from conception and so forth, while the other side denies these. The result is deadlock. Nonetheless, there is common ground—virtually everyone on both sides of the debate is opposed to infanticide. However, the unwelcome news for abortion defenders is that all of the major defenses of abortion draw upon principles that also permit infanticide. It is well-known that defenses of abortion based upon the grounds that the fetus is not a (neo-Lockean) self-conscious person would allow infanticide as well. But though less well known, infanticide would also be allowed by abortion defenses that rely on Judith Thomson’s [1] appeal to a woman’s control of her body, Elizabeth Harman’s [2] and David Boonin’s [3] reliance on the moral significance of consciousness, Agnieszka Jaworska and Julia Tannenbaum’s [4] stress on the absence of a rearing relationship, Elselijn Kingma’s [5] claim that the fetus is literally a part of the mother, or the American Supreme Court’s resort to viability.

We contend that there is no way to distinguish an infant from a fetus in terms of an intrinsic morally relevant feature that the former has and the latter lacks—neither one is rational, morally responsible, self-conscious, concerned about the future, etc. They both lack the cognitive abilities of most household pets. There have been attempts to distinguish healthy fetuses from newborns, but they are no more successful in securing considerable moral status for infants than pointing out that rabbits and dogs differ in their mental abilities can bestow any significant moral status upon the more mentally advanced dog. For instance, Jose Bermudez [6] appeals to a minimal sense of self that newborns acquire through imitation. But the sense of self in the newborn is far less than that possessed by the dog that misses its departed owner and anxiously awaits his return, so it is surely too rudimentary to matter morally. Likewise for Regina Rini’s point that when a fetus becomes biologically independent of its mother, it has aims that it did not before as it responds to needs for warmth and food and other needs by “playing the tiniest role in their accomplishment through its grasping, suckling and crying…. [N]ewborn infants have aims, but fetuses do not … if the vulnerability of such aims to frustration is morally significant, then there is a morally relevant difference between a fetus and a newborn” [7, p. 356].¹ Not only are these aims limited to healthy infants, not to premature or ill infants, but they do not distinguish the infants’ moral status from that of any household pet or backyard animal. Other philosophers like Mary Anne Warren write of the bombardment of stimuli that distinguishes birth from prenatal existence and that the birth of the infant “marks the beginning of the infant’s existence as a socially responsive member of a human community” [8, p. 62]. Not only is this not true for premature or ill newborns, but even if it did distinguish the infant from the fetus, it could not justify any moral status of any significance since countless non-human young have equivalent abilities but are accorded little moral status in virtue of them.

That the newborn has not reached a stage of development that bestows intrinsic value and warrants protection can be more clearly seen if one eliminates any subtle influence of the potentiality of the infant on one’s thought by imagining another species that normally develops mental states comparable to that of the human infant but then naturally stagnates, i.e., stays alive but undergoes no further cognitive development. Such creatures would have very little moral status and we would seem to be obliged to do little, if anything, to save them, and would not have to take on much more in the way of burdens to avoid killing them.²

In addition to rejecting intrinsic bases for distinguishing infants and fetuses, we will also show that it is unsatisfactory to attempt a distinction on an extrinsic basis, for it is not always the case that infants can survive independently of their mother’s bodily support, are less of a burden on their mothers than fetuses, or are in a morally significant relationship that the fetus is not.

The logic of our position is that if the standard arguments for abortion justify the practice, then they also justify infanticide. In this article, we will consider the following five well-known arguments for abortion and show not only that they justify infanticide but also that the principles they rely upon are not morally compelling.³ (1) The inequity of imposing burdens only upon women, but not men, justifies a right to abort. (2) The fetus does not warrant protection until viable. (3) The bodily burdens of pregnancy are too great to deny women an autonomy right to abort throughout their entire pregnancy. (4) Non-sentient fetuses can be aborted because they lack moral status prior to the onset of consciousness. (5) Fetuses are parts of the mother, newborns are not. Following this critique, we will then help ourselves to modus tollens and argue that since infanticide is widely rejected, abortion should be as well.

Alas, we cannot today just assume that our readers will accept that infanticide is beyond the pale.⁴ Some readers will admit that we have shown that abortion and infanticide are morally the same, but opt to permit both rather than prohibit both. So, we will further argue that when potential is properly understood, abortion and infanticide can be seen to be a considerable harm and evil. We contend that both the defenders and critics of potentiality arguments in the abortion debate have failed to appreciate that the potential of mindless or minimally minded creatures that matters morally is their potential for healthy development. We argue that crucial for understanding the moral significance of potentiality is the fact that mindless organisms have interests but only in their healthy development. When they are mindless, they are without interests in other potential futures. Unlike most kinds of organisms that develop minds, the operations of a healthy human mind are of a sophistication and range that bestows them with great value and enables their possessors to obtain unrivaled levels of well-being. Thus, the frustration of those interests in healthy mental development is a great harm. Since the healthy development that is in the fetus’s interest can require all sorts of extrinsic interventions, the morally relevant potential is not limited to that which is intrinsic, active, normal, or probable. And given that those real or hypothesized non-human beings who are supposed to show the absurdity of protecting potential are not unhealthy if the mere possibility of their personhood is not actualized, then it follows that they do not have any interests frustrated by that potential going untapped. So, potentiality properly construed in terms of healthy development is not susceptible to reductio ad absurdum, unlike understandings of potentiality as metaphysical or physical possibility.

Ours is not the only theory to maintain that moral status does not depend upon sophisticated mental faculties that have already been manifested. So, we finish with a discussion revealing that our appeal to non-intrinsic developmental features is successful where an appeal to person-rearing relationships of Jaworska and Tannenbaum [4] is not. We also show that the latter, like all the other discussed cutoff points alleged to permit early abortion but not the killing of more developed human beings, would have to tolerate infanticide.

An abortion ban violates a woman’s right to equal treatment

Since only women get pregnant, they suffer unequally because of their biology. Men are free from the physical burdens and dangers of pregnancy, as well as the loss of employment, educational and social opportunities due to unwanted pregnancies, and child raising. If women are not allowed to choose to be free from a pregnancy that men naturally avoid, they will bear unequal burdens and be permanently relegated to second class citizenship.⁵ Therefore, some conclude that women are entitled to abort unwanted pregnancies.

We suspect that few abortion defenders will, upon reflection, insist that abortion is unjust because it involves an unequal distribution of burdens that falls only on women. While it is true that only women can get pregnant and no comparable burden is imposed upon men,⁶ we suspect that equality is really beside the point. This suspicion is partially based upon our belief that if men could also get pregnant and consequently experienced equal limitations, those using this argument to defend abortion would still endorse a right to abortion. Egalitarian abortion defenders would not want abortion rights to go away if motherhood increases a woman’s standing above that of men. Imagine that more respect and power came with more children [16, p. 98]. Nor would they want abortion rights to vanish if men were legally required to take on more childcare burdens after birth so that the mothers did not lose out on social-economic opportunities.

This inequality argument provides a defense of infanticide. If we modify a Frances Myrna Kamm example, imagine that women so bond with their children around a week after childbirth that they cannot give them up for adoption or let anyone else provide for their day care. Our society surely would not let them commit infanticide in the week before the unbreakable bonds set in. If such changed desires are too farfetched, then imagine a woman giving birth in an isolated community where there is not any digestible formula, breast pumps to fill up bottles, available wet nurses, or other substitutes for her nursing. Thus, the mother must breastfeed around the clock. Assume this is painful as well as exhausting, and limits her social, educational, and professional opportunities more than it limits the father’s opportunities. Nevertheless, the mother surely cannot kill or let die the nursing child despite these considerable burdens being unequally distributed.⁷

Whatever one thinks about the need for more equality, it is typically maintained that one cannot kill to remove barriers to equality, especially when those killed are not blameworthy. So, if inequality arguments do not justify infanticide, then why would they justify abortion? We have already mentioned that there is not any intrinsic morally significant difference between fetuses and newborns. The isolation in the second infanticide thought experiment removes the typical extrinsic difference between fetuses and infants: the burden of the infant being transferable to others. The limits of the equality approach support our suspicion that avoiding inequities is providing a reason to have an abortion that ultimately must be justified independently from social inequalities.⁸ So, if the inequality presently plays any role here, it is just intensifying the existing grievance of having one’s bodily freedom restricted in a society where women have historically been denied the opportunities of men. We think that what is far more likely to be doing the real moral work in this defense of abortion is a belief that a woman’s autonomy allows her to refuse to take on the immense physical burdens involved in pregnancy, regardless of whether the burdens are universally shared. Unequal treatment is really beside the point, for such an exercise of autonomy would be deemed legitimate for men as well if they could become pregnant or faced equal burdens and opportunities.⁹

Abortion is permissible until the fetus becomes viable

We will first consider viability to mean that the fetal individual can live independently of the gestational mother and then subsequently understand it to mean that an individual can live independently of any particular person’s bodily support or mechanical substitute for an immature or failing biology. On either construal, if the principle of viability truly forms the basis of the abortion defender’s position, then it will allow for infanticide. Consider a woman giving birth in an isolated community where adoption services are absent or she is unable to put the child up for adoption for months. Assume, as before, that there is no alternative to around-the-clock breastfeeding because there is no formula available or the baby cannot digest it. The infant is not viable because she cannot live without being sustained by internal products of the mother’s body. If the reader insists that the newborn who needs her mother to produce milk is just generically dependent upon the mother’s body, unlike the gestating embryo whose needs cannot be met by anyone else, then we can just stipulate that the mother’s milk is unique and no wet nurse can be substituted. Surely the mother cannot legitimately bring about the death of her dependent newborn even though the child is not viable, i.e., cannot live without the support of the nourishment provided by her body.¹⁰ So, independence from one’s mother cannot be the basis of the moral status that protects one’s life.

We can also easily show that viability is not a morally significant principle if the term just means that one can live independently of the biological support of others, not just the mother. Consider conjoined twins. There is not a lack of moral status if one or both are unable to survive separation surgery and live independently of the other. Or imagine someone’s failing body resulting in their needing medical equipment to stay alive. Such people would not lose any moral status during the time they lack viability.

We suspect that most of those who defend abortion by appeal to viability do not really believe viability is morally significant. Their lack of a deep commitment to the principle of viability can be revealed when they are asked to imagine hypothetical scenarios where the timing of the onset of viability is changed. Consider first a scenario in which viability does not occur until late in the ninth month of pregnancy, though all other development continues normally. Abortion would be permitted virtually up to birth. But few abortion proponents would be comfortable with this, even though they should not be disconcerted if viability truly mattered morally. Next, assume that the onset of viability occurs just a few days after conception. Most women would discover they are pregnant after the embryo becomes viable and thus virtually no abortions would be justified.¹¹ But if viability is held to be a morally legitimate cut off point for abortion, then whenever it occurs, that threshold should be morally acceptable.¹² But the discomfort with viability as a cut-off point, if it were to occur much sooner or much later, suggests to us that what really accounts for the appeal of viability is not the actual principle of total independence from the mother but just the current time at which our existing biotechnology enables the fetus to become capable of living outside the womb. We surmise that the attraction of the current onset of viability at roughly six months after conception is because it gives women a grace period to reflect upon such a weighty decision and still allows abortion defenders to admit the nearly-born fetus has some value and deserves a modicum of respect and protection without forcing a woman to provide an unwanted nine months of bodily support.

Consciousness distinguishes abortion from infanticide

Some philosophers defend the position that consciousness is a morally significant threshold that can distinguish earlier permissible abortions from later impermissible abortions. Our response is that they are overestimating the importance of their own thoughts—and everyone else’s. They need to explain why consciousness is important for immunity from being killed.¹³ Is it because the conscious person would then undergo a painful death? It would seem not. An infant (or anyone) could be painlessly killed while asleep, but surely that is wrong. Is it that consciousness brings a morally significant cutoff point for permissible abortions because only the conscious can have certain interests that warrant protection? Again, the answer seems to be no. Consider a newborn unaware that she needs some high tech life-saving procedure to avoid a painless disease and death. Surely, it is in the infant’s interest to have her health maintained even though she is not conscious of that interest.

The existence of interests that one is unaware of is what makes it so hard to believe Harman’s claim that while mindless embryos have an interest in continued life and are greatly harmed by their death, such interests do not have moral significance since the embryos are not conscious [2, p. 185]. It is very difficult to see why consciousness would make such harm a morally significant harm if the conscious newborn is not conscious of its longstanding interest in its life being preserved. So, if consciously conceptualizing that interest is not required for that interest to belong to the infant and to matter morally, why would that interest not exist earlier and be morally significant in the embryo before there is any consciousness at all? Alternatively, if the mindless embryo is not protected from abortion because it does not have an interest in more life in the absence of a conscious concern with living on into the future, then it is difficult to see why the fact that the infant is already conscious protects it against infanticide, if it has not consciously entertained a concern with surviving into the future.

Boonin claims that the newborn should be accorded an idealized desire in staying alive [3]. He argues that the newborn’s desires for warmth and food etc. gives her an idealized desire to live so as to fulfill those conscious desires. He compares the newborn’s desire for more life to the idealized desire of a hiker to go left at a fork because he is unaware of a bomb planted on the path forking to the right. The hiker has desires in avoiding injury, pain, etc. that would give her an idealized desire to avoid the bomb on the right fork even though she is unaware of its presence. We argue that Boonin’s account is insufficient because the newborn has interests that cannot be explained by idealization. The newborn can have a non-conceptualized interest in surgery that will ensure reproductive capacities or a certain kind of intellectual growth that does not serve any of her present desires in warmth, food, etc. We even hypothesize that the newborn can outgrow its existing desires but still retain an interest in future life that it does not conceptualize. For example, the interest in food is really just a desire to remove a feeling of discomfort, at least before the first breastfeeding. We take perhaps some liberties, but harmless ones, to make our point by imagining that the baby’s qualia and desire for the first liquid meal is unlike the qualia and desire later for solids. The newborn surely has an interest in living and a right to life that she cannot conceptualize which is not captured by an idealization ensuring existing desires are satisfied. If not, infanticide is acceptable. So if an infant has interests that she is unaware of that are not idealizations from given existent desires, the same is true for the non-conscious fetus.

It cannot be that the onset of consciousness by itself so increases a creature’s value that it becomes wrong to kill it. There are countless types of nonhuman animals that are conscious but have very little moral status. So consciousness per se seems to bestow little value. It is really the potential for a certain type of consciousness that matters morally. But Harman, perhaps influenced by Shelly Kagan’s [23] discussion of the additive fallacy, is sympathetic to the idea that it is consciousness and potentiality that together bestow moral significance. Kagan diagnosed an additive fallacy where the reduction of value due to the removal of one feature wrongly led to a belief that the value of the whole was to be determined by adding the value of the components. An analogous mistake would be removing an ingredient from a recipe that resulted in it tasting half as good as it did before and thus thinking that the removed ingredient provided half of the good taste. If the meal scored a six on a taste scale, the removed ingredient would then be ranked a three according to the fallacious additive inference. But that ingredient may have been rather bland by itself, so its contribution with other ingredients to the fine taste of the meal is better captured by a multiplier than an additive effect.

However, we can show the unimportance of multiplying consciousness with potentiality if we imagine a scarce life-saving drug that one can either give to a five-month-old fetus that just became minimally conscious a day earlier or to a fetus that will become minimally conscious in a day. Consciousness, in this case, seems to hold little value; it appears to be a coin toss to decide who gets the drug. Such reactions suggest that we are not guilty of an additive fallacy and overlooking how potentiality and its partner properties produce value via multiplication. Such responses to the scarce drug choice scenario perfectly cohere with our claim that it is the potential for personhood of the embryo at any stage that matters rather than the potential for personhood only of the conscious.

A perennial challenge for the abortion proponent is to defend abortion without offering a justification of infanticide as well. Some abortion defenders argue that consciousness is what provides moral status and what makes late abortion and infanticide wrong, but not early abortion. It is standardly thought that consciousness emerges around five months after conception. So, one feature that appeals to many is that early fetuses can be killed but that consciousness protects the infant. However, unhealthy newborns might lack consciousness such that infanticide is not ruled out in their case. Perhaps some people will accept the killing of the mindless. Even so, we doubt they would if the lack of infant consciousness was temporary. But then it is hard to see why the temporary unconsciousness of the fetus fails to protect it.

We suspect that most abortion defenders are, unbeknownst to themselves, not really committed to the moral significance of consciousness. We will mention two possibilities to support this. The first has to do with panpsychism and the second is akin to our argument against viability that involved changing the onset of the allegedly morally significant cutoff point. First, if panpsychism is true, then consciousness or experience is not going to be a morally significant divide since everything has some sort of experience. Panpsychism strikes us as a live possibility, that is, for all we know, it is true.¹⁴

The epistemic possibility of panpsychism suggests that the abortion cut off position would then have to be reconstrued as a type of consciousness that brainless embryos lack. This seems to be, morally, a less significant ontological divide. Distinguishing those with experiences from those without has some plausibility as a moral demarcation. Even making a moral distinction between those with self-consciousness and those with mere consciousness seems somewhat plausible. But distinguishing brainless experiences hypothesized by the panpsychic from mere consciousness of those fetuses and newborns with very limited brains seems less significant metaphysically and morally. So the epistemic possibility of panpsychism can help readers see that they are not really committed to the moral significance of mere consciousness. They would not consider it wrong to destroy the many brainless entities with minimal experiences in a panpsychic world.

A second reason to doubt those readers’ commitment to the moral significance of consciousness is that the real moral “heavy lifting” may be being done by the timing of the onset of consciousness rather than the mere presence of consciousness. Our suspicion is that the emergence of a mind at five months is appealing because it provides women with a grace period to make such momentous decisions. Banning abortion from that point onward serves to recognize the value of the fetus. To ensure that it is consciousness itself that is solely significant, we suggest altering the onset of consciousness. Imagine the fetus becomes minimally conscious a week after fertilization. If consciousness were a morally significant cut off point, then abortion would be impermissible before most women even knew they were pregnant. Most pro-choice advocates would not find that an appealing cut off. Next, imagine fetuses do not become conscious until late in the ninth month of pregnancy, just days before birth. Would abortion be acceptable nearly right up to delivery? We very much doubt it.

A right to be free of considerable bodily burdens

We believe that the autonomy right to control one’s body is the most common defense of abortion and probably what is really doing all of the justificatory work for those who appeal to the first and third of the above arguments, and doing much of the moral heavy lifting in the case of viability.¹⁵ More precisely, this right to control one’s body is the right only to reject immense burdens since many abortion defenders believe that late abortion can be banned and thus a woman compelled to use her body to support another for a few months. In Thomson’s language, the right would only entitle women to refrain from being a Good Samaritan for “there may well be cases in which carrying the child to term requires only Minimally Decent Samaritanism of the mother, and this is a standard we must not fall below” [1, p. 65]. However, our contention is that if there is such a right that justifies abortion, then it will also justify infanticide.

Imagine a tornado throws a newborn (a potential person in the Neo-Lockean conception of “person”) and an unrelated adult onto the roof of an extremely damaged building. The newborn is on that adult’s lap and wiggling. Her wiggling will cause the roof to collapse and both the adult and newborn to fall. If the newborn had remained still, both would have been fine. Given the adult’s current position, he will hit the ground first and will thus cushion the infant who will emerge unscathed. The position the adult is in when he hits the ground will make the impact as painful as an actual delivery that ends a pregnancy. In addition, it will cause him nine months of back pain, abdominal swelling, nausea, frequent urination and bodily discomfort comparable to that endured in a pregnancy. If he rotates before the roof gives way, then he will cause the child to hit the ground first and the impact will fatally crush his skull but the adult will be able to land on his feet and walk away unharmed.

Is the adult morally permitted to rotate and kill the infant to avoid nine months of physical pain? It would seem not. And that is true even though the newborn has no right to be on the adult’s body¹⁶ and his wiggling will be the cause of his burdens just as the fetus is a hardship for the pregnant woman. Why then would the mother’s right to control her body justify killing a fetus, which, like the infant, is just a potential person? We noted in the introduction that there is not a morally relevant (intrinsic) developmental difference between fetuses and infants. And we have just shown that they cannot be distinguished morally on the (extrinsic) basis of fetuses being more burdensome than infants.

Why then is the intuition in Thomson’s violinist scenario that the kidnapped reader can disconnect and bring about the death of the violinist? Drawing upon Peter Unger’s work, we would venture that the psychologically efficacious factors determining our divergent responses in the two thought experiments are those he calls “projective separation” and “projective grouping” [26, pp. 96–101]. The psychological phenomenon of projective grouping is illustrated in our rooftop case. The two individuals, neither of whom are responsible for his or the other’s predicament, are both understood by the reader to be in the same bad situation facing a threat. Our psychological makeup is such that we projectively group the entangled people together in the same unfortunate scenario, and then, once we view their plights as interconnected, we feel compelled to minimize the harm in such a scenario, and this amounts to letting the larger person shield the smaller.

Projective separation can be illustrated by Thomson’s famous thought experiment. The healthy person and the violinist who ends up supported by him are not viewed as being in the same bad situation. The ailing violinist is understood as having his harm “transferred” to a completely unrelated person.¹⁷ The healthy person in the violinist scenario is not like the larger person entangled in the ropes. Instead, the healthy person is viewed as an uninvolved person, whose relationship with the violinist begins only after the latter becomes ill and even then is accomplished through a kidnapping which in our minds serves to highlight the distance that existed between the two men. In Unger’s language, we do not projectively group him with the violinist in the same bad situation, instead we projectively separate him from the violinist. Because of this projective separation it appears wrong for the violinist’s misfortune to be transferred to the man with the healthy kidney.¹⁸

Thomson’s Henry Fonda case can be seen as further evidence for our Unger-inspired thesis about the morally irrelevant but psychologically efficacious projective grouping and separation of people in harm. Our intuition is that Fonda does not have to travel across the country to save someone’s life by magically touching the latter’s brow. But contrast this refusal and our lenient attitude towards such inaction with a case in which, throughout his career, Fonda never spends a cent of his earnings except for the minimum necessary for room and board. Then, at the age of sixty-five, he takes all his life’s savings with him onto a boat to travel abroad to finally enjoy his earnings in a luxurious retirement. But his boat collides with another ship and both go down. Fonda is alone on a life boat with all of his earnings in the uninsurable form of gold coins, jewels, and suitcases of cash. He sees someone from the other boat drowning, but he can only pull him on board if he throws all his savings overboard where they will be irretrievably lost. Our dominant reaction is that he must give up all his money which means he basically worked his whole life for free. Now if he must do this, then he surely must fly across the country to save a life in Thomson’s scenario because that is far less demanding. We believe projective grouping explains the different reactions people may have to the two cases. Both shipwrecked men are basically in the same dangerous maritime situation, while in the Thomson scenario, one does not group far away and uninvolved men together, which does not seem to give the ill person a right that another man, Fonda, who is far away and uninvolved, come to his aid.

We can further see the psychological phenomena of projective separation and grouping at work in a case in which a runaway trolley is made to jump its tracks by a person who knows that it will roll for five miles until it comes to a stop and kills an old woman in her home watching television. This person who derails the trolley does so in order to prevent it from killing two people who have been trapped on the tracks. We imagine that many readers would not be psychologically able to redirect the trolley in the just mentioned way. Even if the reader could “stomach” making the trolley leave its tracks in such a situation, she or he would likely find that it is much harder to bring about the distant death of the elderly woman while she is relaxing on her sofa in front of her television than if there is a heavy fellow on a second fork of a looped track on to which one could switch the trolley in order to save the lives of two other track-bound innocents.¹⁹ Moreover, if the trolley has been switched by someone else, fewer people will help the hefty man get off the tracks. But we expect that most people will be much more willing, as well as consider themselves much more justified, to help someone disconnect the violinist.

Now, while projective grouping should be seen as psychologically efficacious, it should not be interpreted as morally relevant. We are assuming that the reader will find this obvious now that the operations of projective grouping and separation have been pointed out. When all the parties involved are innocent in the relevant sense,²⁰ one should just minimize harms. Their location does not matter morally. Projective grouping and separation merely explain why it is difficult to always minimize harm amongst innocent victims.²¹

Embryos are parts of the mother, newborns are not

There are a number of philosophers who believe that it is significant that the fetus is a part of the mother [30,31,32,33]. Kingma [5] may be the most metaphysically sophisticated and she contrasts her view with Barry Smith and Berit Brogaard’s [34], who claim that the fetus instead stands to the mother in an occupant or niche relationship roughly analogous to the astronaut in the spaceship [5, p. 33]. Kingma provides good reasons to think that the fetus is actually not an occupant of a maternal niche but is rather a literal part of the mother. The fetus seems bound to the mother much in the way the stalks of other organs are connected to the rest of the body. We do not quibble here with Kingma’s metaphysics of fetal parthood, but just show that morally, it offers abortion defenders little help.²²

We suspect that there are no moral differences if the fetus is a part of the mother rather than an independent substance. Autonomy, privacy, and non-interference do not hinge on the question of the fetus’s parthood. If the fetus does not undergo substantial change with birth, then we do not see much moral significance in its parthood status. In fact, we think that if anything, it hurts the pro-choice position for two abortion defenses are no longer available. The first is that abortion must be accepted for the fetus violates the bodily integrity of the mother. But if the fetus is a part of the mother, then it cannot violate her bodily integrity. Only something that is not a part of her body can violate her bodily integrity. It could be that it violates her autonomy, but that is a different matter. The second loss for a pro-choice position is that the fetus cannot be a trespasser if it is part of the mother. One’s part cannot trespass upon oneself. Thus it cannot be claimed that the fetus is a trespasser who as such has no right to be in the mother’s body if literally a part of the mother’s body. It is, on the other hand, conceptually coherent to claim that the mother has the right to remove the fetus, as she does with other unwanted parts, but that is just an autonomy right and is independent of the parthood relationship. Thomson, incidentally, recognized this. She concludes her famous paper with what seems to be a recognition of fetal parthood, claiming, “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” [1]. So, she relies upon bodily control or autonomy considerations despite apparently accepting the feminist position that the fetus is a part of the mother.

If autonomy is taken to the extreme, then that will allow a woman to control her body as it supports another, even if that other is not a part of her but just lies within or on top of her. Of course, we do not believe that autonomy rights justify abortion. Nor do we see any reason to believe why the autonomy right is made any stronger by the fetus being a part of the mother rather than being inside her body without being a part of it. It does not matter if the fetus is a part of the mother’s body rather than an occupant within her body putting great strain on it. This is especially clear in the case of conjoined twins, who share parts that are essential to the life of each. Neither twin will be able to control that shared part and take it with her upon surgical separation, even though it is a part.²³ So parthood per se does not matter morally. What matters morally is due to other factors like the value of the conjoined twins and their capacity to be harmed and benefited.

Kingma thinks that the fetus’s mereological status as a part of the mother produces a dilemma—either the fetus is a part and thus there can be human beings within larger human beings, which would violate the maximality principle that entities of the same kind cannot be parts of each other, or the fetus is a part and does not become a human being until birth when it is separated. Kingma prefers to accept the second horn. We do not think the first horn is very sharp.²⁴ The second horn would render abortion more akin to contraception in that it keeps a human being from coming into existence. And this would apparently provide a principled way to distinguish abortion from infanticide.

It might be thought that treating the fetus as a part that undergoes substantial change at birth will provide a way to distinguish abortion from infanticide. Abortion does not kill a human being but just a precursor to a human being. It is more like contraception in that sense. It is only infanticide that terminates a human being. However, the background metaphysics will turn out to make it the case that infanticide has already been occurring and could occur in the future in cases that will surely be objectionable. To illustrate the latter, imagine the newborn has not yet had its umbilical cord cut. Technically, it is still a part of the mother even though it has passed through the birth canal and is in the arms of the doctor or nurse. To kill it would be infanticide. One might insist that it is not yet a newborn or infant for it is still attached. But we doubt that would convince many ordinary English users. Anyway, we can also imagine the nursing newborn, after the umbilical cord is cut, secreting a bonding solution that temporarily attaches her to the mother’s breast in such a way as to meet the parthood criterion. Few readers would accept that attachment is infanticide because a part to whole relation is established, or that the attached could be killed, or that anything would cease to exist once the nursing newborn is later detached.

If separation from the mother’s body is what transforms a fetus into an infant, then if the fetus breaks loose from the uterine wall or the mother’s placenta, then it would be an infant for it is no longer part of her body, even if it is still inside her.²⁵ Ironically, surgery to repair the connection would be infanticide, or the killing of a human being, for that would render the human being a part of the mother again. Moreover, if any abortion proceeded by first removing the fetus from the uterine wall before it died, that would end as infanticide as the parthood relation would be severed.²⁶ So if coming through the birth canal is not what makes one an infant but the loss of parthood status, then the detached embryo is an infant within the mother’s body though not a part of the body. The infant is an occupant in her womb akin to the way the present reader is an occupant in his or her office.

The second horn of Kingma’s dilemma introduces a very bizarre metaphysics of organisms that pops in and out of existence. If organisms cannot be parts of another substance, then does the premature newborn go out of existence when connected to the incubator in certain ways (connected in whatever way is required for parthood) and pop back into existence when removed? That strikes us as preposterous. We do not see why it would matter that the “incubator” is one of the same kind, another human being, especially if the parthood bond is structurally the same. Anyway, the secretion that temporarily bonds the nursing baby to the mother will be a case of an entity in another of the same kind. If it is claimed in response that the nursing baby and the mother would just share a part, we would reply that the same can be said about the embryo when it is in the mother’s womb.

Why infanticide is wrong

Some readers might admit that abortion defenses are also defenses of infanticide but also accept that infants as well as fetuses can be killed. We are skeptical of the claims of Jeff McMahan [13] and others (e.g., Peter Singer [12], Michael Tooley [11]) that newborns and the unborn lack the interests necessary for a right to life. We think that they fail to distinguish something being in an individual’s interest from that individual taking an interest in something.²⁷ It is in the embryo and neonate’s interest to live on even though they have not taken an interest (i.e., desire) to live further into the future. Analogously, vegetables are in a child’s interest but he is not interested in them. All living things have an interest in healthy development. We can ascribe interests to potential persons, even mindless ones, to live and develop in a healthy fashion by which they will flourish. It may even be that consciousness evolved to promote a well-being that organisms had previously furthered without awareness of doing so. If one does not accept that non-sentient beings can have welfare, then one will be unable to explain the harm of a person lapsing into a coma or the benefit of someone coming out of a coma, for harms and benefits involve changes from one level of well-being to another, not a move to or from the absence of any well-being. There is a difference between the absence of or no well-being on the one hand and zero or low-level well-being on the other. We were all devoid of any level of well-being (even zero) before we existed and that explains why coming into existence is not a benefit. The comatose have zero or low well-being, unlike nonexistent artifacts, mountains, and so on, which have no well-being.

Our contention is that all living entities are capable of well-being and have an interest in their own good.²⁸ Even blades of grass can be said to literally thrive and thus have an intrinsic well-being and a nonmetaphorical interest in sun and nutrient-rich soil. Despite having interests, however, a blade of grass has a future that is not very valuable, so its interests are given far less moral weight than those of human beings. Assuming that the degree of the harm of an entity’s death depends, in part, upon the value and extent of the well-being that it loses out on, the grass is harmed very little. The same is true for most non-human animals.²⁹ A healthy human fetus, on the other hand, has the potential to realize mental capacities of considerable value that will enable it to flourish to a considerable extent.

We think it is revealing to note the structural similarities between health and well-being. We speak of the diseased as doing poorly, the recovering as doing better, and the healthy as flourishing. We likewise describe those who undergo significant drops in well-being as doing poorly, who undergo increases in well-being as doing better, and who experience an abundance of well-being as flourishing. It is not metaphorical to claim that the healthy are thriving or that those with considerable well-being are also. It is good for a plant or fetus to thrive. The causes and constituents of their flourishing are in their interest.

We maintain that the morally relevant sense of potential is determined by the healthy development of the kind of organism in question.³⁰ Every living entity has an interest in its own healthy development. What is healthy development is not determined by active or intrinsic potential. Those with congenital disabilities, even the anencephalic, have the potential to be healthy members of their kind (though intervention is needed) and have an interest in a cure. This is why those with severe cognitive impairments should receive the only dose of a person-producing serum rather than say a normal feline fetus. The latter is not unhealthy and its interests, like that of all mindless creatures, are limited to its healthy development. This explains why we reject McMahan [39, p. 354] and James Rachels’s [40, p. 173] defense of moral individualism, which is the doctrine that the treatment of an individual ought to be determined not by any group membership but by respecting the individual’s own particular characteristics. If readers think that healthy development cannot be morally significant and be a basis for interests relevant to our well-being because these interests are not determined by intrinsic properties, then they should reflect upon the lessons of semantic externalism. The beliefs and desires we have are determined and constituted, in part, by the external environment, not solely by what is in our head. Yet, they are certainly relevant to the value of our interests and our being harmed or benefited.

Mindless organisms only have interests in healthy development or proper functioning and the flourishing that involves. So, an embryo has an interest in growing a healthy, properly functioning brain but no interest, then, in becoming a football player, even if it later dreams of Super Bowl fame as an adolescent. It is not enough for a mindless entity to be identical to a later being for it presently to have an interest in that later being’s welfare. The future good must be in the mindless being’s interest when it is mindless. And the only basis we can see for ascribing interests to the mindless is by appealing to the good realized by their proper functioning, i.e., healthy development for entities of that kind. Health is a necessary condition for flourishing and constitutive of a good deal of valuable well-being in a healthy person. The living will always have an interest in health-produced flourishing. All flourishing depends upon health being present (to some) degree and every living being has an interest in health at every stage of its life, including its embryonic stages. When it is mindless, there is probably nothing else to its good than its health, i.e., its proper functioning is constitutive of its flourishing. But that is still very valuable and is why infanticide is a great wrong.

The reason a reader’s death is worse for her than the fetus or infant’s death is for the fetus or infant is that the reader has acquired many interests that she did not have earlier. Her environmental interactions give her interests in, say, football, or interests to engage in particular projects with friends and lovers. The embryo just has an interest in healthy development, which involves becoming able to reason, care, empathize, love, exercise self-restraint, and so on. But the embryo or infant is without the detailed and contingent interests that will arise from doing things with families and friends in certain environments. So, death does not frustrate as many interests and harm the embryo or infant to the degree that it does the reader or, say, her mother. But as long as one’s attitude is that infanticide is a great harm and wrong, even if it is not as bad as killing the reader, then abortion too is a great harm and wrong.³¹

Potential versus rearing relationships

We believe it is the human potential for healthy development that distinguishes human infants and fetuses from other non-human animals that then are intrinsically similar in terms of intrinsically manifested mental abilities. But our appeal to the norms of healthy development is not the only theory that claims that manifested mental traits are not the key to understanding the moral status of the very young or undeveloped human being. Jaworska and Tannenbaum explain the moral difference between, say, a dog and a human baby based on the latter’s participation in what they call “person-rearing relationships,” which can “transform metaphysically and evaluatively the baby’s activities” [4, p. 242].

Jaworska and Tannenbaum draw on ideas in action theory to suggest that potential persons can acquire considerable moral status from their extrinsic relationship to those who are rearing them. The end to which some action is geared can determine that action’s nature and value. One of their examples is that there is little value in a youngster acquiring abilities to be sensitized to feel what others do so he can manipulate them, but considerable value in training an intrinsically similar youngster to learn how others feel so he will be able to provide them assistance and respect. The different ends of the parents (“rearers”), of which the children (“rearees”) are unaware, render the children respectively proto or incomplete realizations of viciousness or virtuousness. So, Jaworska and Tannenbaum argue that it is the rearing relationship of potential people like nine-month-old infants that imbues them with a moral status that mentally equivalent dogs do not have. This would seem to distinguish fetuses who cannot stand in a rearing relationship with those infants who can [4, pp. 250–251].³² The latter have moral status that approaches that of self-standing persons³³ because they are on their way to becoming persons in virtue of the nurturing rearing relationships [4, p. 256].³⁴ Even if they are abandoned or neglected, the authors claim that the potential of someone to stand in a rearing relationship bestows value and distinguishes early abortion from infanticide.

It seems to us that Jaworska and Tannenbaum’s account of moral status cannot prevent infanticide since a newborn cannot, any more than an advanced fetus, be in a person-rearing relationship. They toy with the idea that caring is sufficient for moral status, writing, “emotional attachment is present in unimpaired neonates” [4, p. 269]. That might allow newborns to be involved in “incomplete realizations of self-standing person activities” [4, p. 254]. Nevertheless, Jaworska and Tannebaum’s paper fails to protect against the infanticide of those born prematurely or with a temporary developmental impairment that prevents emotional attachment. What is especially revealing is that their account fails to protect hypothetical creatures that are potential persons very much like us but who become persons due to their being hardwired to develop on their own rather than through undergoing a rearing relationship.

We argue that any appeal of Jaworska and Tannenbaum’s argument is due to an accidental generalization. A potential for healthy development like that described in the previous section, not the person-rearing relationship, is doing all the moral work. We contend that Jaworska and Tannenbaum have not found even a sufficient condition for moral status. This can be seen by attending to the following imaginary scenarios.

First, imagine a species whose young are mentally comparable to our own very young children, that is, with abilities that do not surpass a puppy’s. These children naturally develop from such dog-like states on their own to self-standing persons without the interaction of rearers. Do they have the same moral status (at this stage) as a dog, or less than an incomplete self-standing person? Surely, they do not. It thus seems that rearing is just a form of potential, such that the potential does all the real work in our moral attitudes. That is why the moral status of the hypothetical species of persons with dog-like young would be the same as that of our own infants involved in rearing relationships. They both would be protected against infanticide much as a person is protected against being killed. Of course, Jaworska and Tannenbaum can argue that since they are only providing a sufficient condition [4, p. 245, fn. 11], something else governs the moral status of our conjectured species. But that strikes us as a desperate move akin to admitting that rearing is not doing any moral heavy lifting, for then, everywhere there is a rearing relationship there is potentiality as we conceive of it. They are better off denying that they have this intuition or arguing that those of us who do have it are misguided in believing the young of such a “self-rearing” species would have considerable moral status.

Secondly, imagine that an inept and non-caring rearer is unintentionally rearing a person though trying to do something else. Perhaps the rearer wants a cognitively disabled child for mean-spirited reasons and should be condemned just like the parent in the authors’ example who taught his kid to be emotionally sensitive to others in order to manipulate them. Would that incomplete self-standing person not have greater moral status than the cognitively equivalent dog, even though the end of personhood is not being aimed at by the rearer? Again, it seems that Jaworska and Tannenbaum could not protect such infants. However, they do write elsewhere that “while the rearee’s special moral status can be traced to the context of a caring relationship, it is not being cared about that grounds this status but rather being able to engage in activities transformed by the context of a caring (person-rearing) relationship” [4, p. 257]. So, they could claim that although the child of the inept rearer is not in the right rearing relationship, the potentiality to be so reared is what conveys moral status. But by attending to the next three examples, we show that this is not a sufficient condition because the rearees there do not have moral status. That should make readers suspicious of the claim that the rearing-rearee relationship is doing any moral work in the above cases.

Jaworska and Tannenbaum admit that if a newborn is abandoned, he would have moral status not because he is actually in a rearing relationship but due to the weaker condition that he could be. They write that it is not “required that someone in the vicinity exists who can adopt this end” but “only that such a person will, or perhaps, even could exist.” The weaker condition, they believe, “is warranted” [4, pp. 268–269]. But the weaker condition produces implausible duties in a modified version of Uriah Kriegel and Nicole Hassoun’s [41] case of hypothetical earth oysters that develop into persons if brought to a Martian atmosphere. Imagine if our pigs could develop into persons in response to rearers on Mars. Since we would have no duty to treat them as having a special moral status, it seems evident to us that the rearing relationship is not sufficient for moral status.

Imagine also Tooley’s famous kitten, prior to the injection of the person-producing serum, being reared to become a person with the end of later injecting it.³⁵ Surely it does not have greater moral status than a normal kitten or a normal nine-month-old human. And surely we do not have any duty to inject it despite it standing in a rearee relationship with a possible end of enhancement. Why not? Becoming a person is not part of a healthy development for kittens, so the kitten does not have an interest in such enhancement.

Moreover, most of us share McMahan’s intuition that we do not have a moral duty to develop dogs if they should turn out to have the unusual ability to learn language, pace Jaworska and Tannenbaum’s claim suggesting we do.³⁶ McMahan imagines that there is a type of dog that if we spent nearly every waking hour training in speech, could realize a formerly unknown potential ability for such dogs to speak. Why do we not have a duty to enable them to so develop, while we do have a duty to spend almost comparable hours training human children to speak? We explain this by claiming that language learning is not part of a healthy development and flourishing for dogs. The dogs did not evolve or were not designed for such development. They are not pathological if they do not so develop. So they do not, before or after birth, have an interest in becoming speakers. Our view, of course, allows that once they are speaking persons, they will enjoy that state and want to retain their personhood. The same is true for Tooley’s kitten. Nevertheless, they are not harmed if they do not undergo such development for they have no interest in such development. It is not their healthy or proper functioning in their design environment. It is important to realize that we can always conjecture a hypothetical environment where the simple-minded will become geniuses. That environment, which is not the creatures’ design environment, might even be a very changed pattern of species interaction or the presence of some new chemical in our own geographical region.³⁷

Finally, the person-rearing relationship account of moral status cannot account for why people would feel more obliged to give scarce person-producing medicine to the congenitally disabled human fetus or anencephalic human infant, who are mindless or minimally minded [4, p. 255, fn. 25], than to the ordinary dog fetus, the ordinary dog, McMahan’s special dogs, or Kriegel and Houssain’s oysters. If one of those unusual dogs or oysters were missing a chemical that they needed to learn language or become a person in Mars, respectively, then the issue of who receives the scarce medicine certainly would not be a matter of a coin toss. We would give the human child the medicine, and we would do it not because of special obligations or harms to those to whom the child stands in relationship but for his or her own sake. The child has an interest in such healthy development.

Conclusion

We have shown that six well-known arguments for abortion are also arguments for infanticide. If infanticide is beyond the pale, then such arguments cannot justify abortion. Defenders of abortion have overlooked the fact that the mindless can have interests in their own healthy development. We suspect that the acceptance of infanticide is based on a similar failure to distinguish between something being in an individual’s interests and that individual taking an interest in something. It is in the interest of both fetuses and infants to undergo healthy development: they are benefitted when they do and harmed when they do not.³⁸