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Home , Abortion debate, Proembryo

J Med : first published as 10.1136/jme.27.suppl_2.ii5 on 1 October 2001. Downloaded from

Journal of 2001;27 suppl II:ii5–ii9

Is there a ‘new ethics of ’? Raanan Gillon Imperial College, London

Abstract being? The answers to these questions are not pri- This paper argues that the central issue in the abortion marily moral answers, though of course they have debate has not changed since 1967 when the English major moral implications. Overwhelmingly moral parliament enacted the Abortion Act. That central communities do not doubt that to kill a , at issue concerns the moral status of the . The least if he or she is not an aggressor, is, as stated debate here is not, it is argued, primarily a moral above, a morally terrible action. They agree that debate, but rather a metaphysical debate and/or a people should be protected against such killing by theological debate—though one with massive moral acceptance by all moral agents that every person implications. It concerns the nature and attributes that has a moral and legal . What they disa- an entity requires to have “full moral standing” or gree about is the scope of that obligation—just what “moral inviolability” including a “right to life”. It sorts of entities are in this sense, and why? concerns the question when, in its development from Conversely what sorts of attributes manifested by newly fertilised ovum to unequivocally mature, any entity would/should ensure that it is acknowl- autonomous morally inviolable person does a human edged to be a person and have full moral standing being acquire that nature and those attributes, and including a right to life? These are primarily meta- thus a “right to life”. The paper briefly reviews physical and/or theological issues rather than standard answers to these questions, outlining some directly moral issues, and people of moral integrity problems associated with each. Finally there is a brief can and do come to carefully thought out but discussion of one way in which the has widely diVerent conclusions without in any way changed since 1967—notably in the increasingly undermining that moral integrity, without in any vociferous claim, especially from disability way being “wicked” -or stupid– points that those sectors, that abortion on grounds of fetal abnormality who are inclined to impugn the or intelli- implies contempt for and rejection of disabled gence of those who oppose them on this issue people—a claim that is rebutted. should bear in and take to heart! A variety of standard positions have emerged (Journal of Medical Ethics 2001;27 suppl II:ii5–ii9) over the centuries. At one end of the spectrum is the

Keywords: Abortion; moral status of fetus; abortion of fundamentalist stance that claims either that the http://jme.bmj.com/ abnormal newly fertilised human ovum is a human person from the moment of conception, or at least that it must be treated as such even if we cannot know Killing another person if that person is a non- precisely when in its subsequent development it aggressor is regarded as a morally terrible action in becomes “ensouled”—roughly speaking the theo- most moral communities, which have major moral logical equivalent of becoming a “person” as and legal prohibitions and sanctions against such defined above. The latter position is the position of killing. Far fewer moral communities have similar the contemporary Roman as attitudes and prohibitions against killing all living expressed in its 1974 Declaration on Abortion by the on September 28, 2021 by guest. Protected copyright. beings and most cultures are willing to kill some Roman Congregation for the Doctrine of Faith1 and is living beings for food and for use of their skins and shared by some other faith communities. A little for other benefits such as the advancement of further on from the “moment of conception” medicine. But what of the human being as it devel- stance is the 14 days stance, developed by the War- ops from newly fertilised ovum, to pre-, nock Commission in the UK when it was consider- embryo, fetus, new born baby, to unequivocally ing in vitro .2 Here development of the mature autonomous person with full moral stand- “”, at 14 days, was determined to be ing including a moral and legal right not to be killed the cut oV point after which research on, followed at least if he or she is not an aggressor? When and by destruction of, human was to be on what basis during that development does the prohibited—a cut oV point subsequently enshrined unequivocally living human being acquire the in the Human Fertilisation and Embryology Act, moral status of a living human person, here used 1990. Although the Warnock commission pro- simply as a shorthand for a human being of full duced little justification for its choice of 14 days, moral status (of the sort all readers of this paper this was subsequently defended in depth by the uncontroversially ascribe to each other) including a Roman Catholic philosopher Norman Ford, who right to life, again here used as a convenient short- argued that the primitive streak stage marked the hand for the right not to be killed if not an aggres- true formation of a new living individual with a sor. Conversely, when, if at all, and why, is it morally human nature.3 This occurs after a two-week devel- justified to kill (“abort”) the developing human opmental process that follows fertilisation, within

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ii6 Is there a ‘new ethics of abortion’? what he dubbed the “proembryo” and what Mary Full moral status from conception or soon Warnock called the “pre-embryo”. afterwards Interestingly St , one of the First the standard Roman Catholic “moment of greatest philosophers of the Roman Catholic faith, conception” stance—which for of space I proposed (following, as he often did, an Aristotelian shall here assimilate to the oYcial Roman Catholic lead) that or “hominisation” did not 4 stance that while we cannot know when ensoulment occur until 40 days for boys and 90 days for girls. or hominisation occurs, we must behave as though A traditional distinction has been that of it occurred at conception so as to prevent the “quickening”—the time at which the pregnant dreadful sin of killing an innocent ensouled human woman can feel her fetus move inside her (generally being or human person. There are two main prob- around 20–21 weeks in a first , often sev- lems with this position—as with the Ford’s eral weeks earlier in subsequent )— unorthodox Roman Catholic view that the human undoubtedly a time of great emotional significance person begins at 14 days: first why should we for the pregnant woman. believe that a single cell or a clump of cells is a per- Moving along the developmental spectrum, son, with the same level of moral importance as we “brain life” (the development of a functioning readily acknowledge each other to have? Second are brain),5 and the development of the ability to have we prepared to accept the implications of this experiences, including sensory experiences (sen- stance for medical practice—for example that we tience)6 have also been proposed as criteria for dif- should refuse to permit not just all and all ferentiating the “fully fledged” human person with in vitro research on human embryos but also even full moral status from the developing human being postcoital contraception, since this works in part by that lacks a right to life. Estimates of the onset of a preventing a newly fertilised ovum from implanting capacity for sentience vary but 20–24 weeks are into the lining of the uterus? commonly proposed. Now sometimes the first objection is met by the A technological criterion favoured among many argument from potential. There are two versions of doctors working in neonatology and also in gynae- this. The first is what might be dubbed the ordinary cology is the concept of viability—the stage of fetal language version. According to this version, of development at which the fetus can survive course the newly fertilised ovum and early embryo independently of the pregnant woman, given does not have the attributes of a person—it can’t suitable intensive care.7 This seems to be a steadily think or reflect or imagine or experience, or do reducing period but is currently around 20–22 things for itself. But it has the potential do all those weeks. things, it has in short the potential to become the The legal criterion in most jurisdictions is birth,8 wonderful being that we fully fledged human beings when the human fetus becomes a legal person, and are. It should therefore be valued and respected for certainly this corresponds with an enormous that potential and be accorded the same moral sta- psychological change in all involved with the tus and protection that we accord each other. The http://jme.bmj.com/ newborn baby—here it is, a new human being join- problems with this version of the argument from ing the human community. potential is that we don’t normally, let alone neces- Finally some argue that even at birth a baby is not sarily, accord the same value to x which has the yet a person, that a necessary attribute for being a potential to be y as we accord to y itself. An acorn has the potential to be an oak tree but not many person is a capacity to be aware of oneself, and or a buyers would pay the same for acorns as they would capacity to value oneself, or even—in Kantian pay for oak trees. A caterpillar has the potential to mode—a capacity for autonomous thinking, and become a butterfly but few nature lovers would that these capacities develop some time—at least on September 28, 2021 by guest. Protected copyright. 9 accord the same value to caterpillars as to the but- some months—after birth. And to round oV this terflies they might become. Moreover as John Har- thumbnail sketch some argue that a necessary con- ris has pointed out we all of us have the potential to dition for full moral status as a human person is be corpses—but this in no way justifies treating or social acceptance as such, and that therefore with- valuing each other as though we already were out such social acceptance a human being of any corpses. Moreover, as he also points out, if potential stage of development does not have the full moral to be fully fledged human people was suYcient to status and rights of a person. require being valued as if that potential had already Perhaps the most intellectually robust of these been realised then a sperm and an egg considered criteria are those at each end of the spectrum, ie the together also have that potential; and, given criterion of conception, and the criterion of a techniques of that led to Dolly the sheep, so capacity for awareness—but all these criteria do many ordinary cells of the human body. Are they have associated problems, and it has always seemed all to be accorded a right to life? important to me for all of us involved in the The second version of the argument from poten- abortion issue to be clear what our own positions tial avoids such problems but only by asserting the are and how we respond to the problems and conclusion it seeks to derive. According to the sec- objections associated with our position, whatever it ond version, the newly fertilised ovum is “a human may be. Not much has changed in that respect being or person with potential, not a potential either since the introduction of the Abortion Act in human person”.10 According to this version of the 1967. argument from potential the newly fertilised ovum

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Gillon ii7 and thus the early embryo just is a person from fer- made much of evidence that at a late stage of preg- tilisation; even though its attributes as a person are nancy fetuses respond to stimuli in ways that indi- not yet obvious they are all present in the genetic cate that they are sentient, and for my own part this and organisational structure of the new human seems quite likely—after all there’s not much doubt being, and left alone to develop, they will gradually (these days) that a newborn baby is sentient— emerge. While the subject bears extensive debate capable of feeling pain and of other experiences; it and sophisticated analysis, few who are not already seems highly implausible that this capacity is in committed to a theological requirement that a new some way switched on by the process of birth and human person begins either at fertilisation or else far more likely that it is already present at some very soon afterwards—for example Ford’s 14 days stage in utero. The question still remains, is stance3—are persuaded by either version of the sentience of the human fetus a plausible criterion argument from potential which is seen either as for —for fetal “moral inviolability”, begging the question by asserting the disputed con- including a fetal right to life? clusion as a premise in version two, or as totally A major problem for such an assumption is that implausible special pleading in version one. Many if the capacity of sentience is suYcient for person- who reject the argument from potential will none hood and a right to life in human fetuses why the less agree that the potential to become should it not equally be suYcient for personhood something of great value—for example a human and a right to life in all other living beings, includ- person—undoubtedly belongs to human embryos ing all the vertebrates that we currently are ready to and fetuses and this gives them at least a prima facie kill for their meat and skins and uses in medical value, and in many cases, where the pregnant research? Of course many animal rights supporters woman herself longs to have a new baby, makes would not see this as a problem at all—but merely them extremely important. But they will be unper- as confirmation that our current moral and legal suaded that this potential necessarily imparts the attitudes to animals are grievously mistaken and same value—let alone the same intrinsic value—to “speciesist”. They would agree with Jeremy all human embryos and fetuses. Bentham, one of the founding fathers of utilitarian- Aquinas’s 40 days for boys and 90 days for girls ism, that all animals who can experience pain and may be quickly passed over, as may the suggestion suVering, pleasure and happiness are of equal that quickening—the feeling of fetal movement by moral concern and that the proper expression of the pregnant woman—is relevant to the moral sta- that moral concern is to minimise suVering and tus of the fetus. In passing it is of note however that pain and maximise pleasure and happiness, Roman Catholic thinking has by no means been whether animal or human. Without some addi- univocal, either now or in the past, that ensoulment tional premises making a special case for , occurs at fertilisation, and that it is important to those who would make the capacity for sentience a diVerentiate between psychological feelings that are suYcient criterion for fetal personhood seem of undoubted importance for the pregnant woman,

logically committed to a similar position, as are http://jme.bmj.com/ or indeed for others, and plausible criteria for those who would accept as such a criterion the determining the intrinsic moral status of the embryo existence of a fetal brain with the capacity for sen- and fetus. tience. One practical moral conclusion is important to note. If sentience is not accepted as the criterion Brain life and the capacity for sentience for full moral status, and abortion continues to be What about the fetus’s development of a brain, and permitted after the stage at which the fetus has along with that its development of a capacity for developed the capacity to feel pain, then it seems sentience—a capacity to have experiences including morally important to ensure that the fetus is not sensory experiences, whether of touch or pain or of caused pain by the procedure itself—so for late on September 28, 2021 by guest. Protected copyright. sound? Are these plausible criteria for the “person- abortions some form of anaesthetic or other means hood” or moral inviolability of the human fetus? of preventing fetal pain should be part of the abor- There seems little doubt that it is because of our tion operation. brains that we humans have special attributes to Viability is the criterion favoured by many who which we attach special moral value—of which the work in the field of neonatology, and also by some most important one is widely accepted to be our gynaecologists who accept abortion but who also capacity to be autonomous—to think reflectively believe that at some stage in their development for ourselves, or what amounts to much the same fetuses acquire a right to life after which they thing, to have “free will”. Moreover at the end of should not be aborted. There is a crucial practical our lives it is now widely accepted that it is the as well as intuitive dividing line, such doctors often death of our brains that is the fundamental feel, between those fetuses who, given intensive care determinant of our deaths and of the cessation at are capable of continuing their survival and any rate of our legal personhood. Should therefore development outside the uterus, and those who are the corresponding onset of “brain life” be the not viable in this sense and it is this viability, they determinant of the start of our moral and/or our believe, that aVords a criterion for distinguishing legal personhood? And should the capacity for hav- between those fetuses that do and do not have a ing experiences and especially sensory experiences right to life. constitute the operational evidence of the onset of The main problem with the viability criterion is such “brain life”? Some anti-abortion activists have that it is entirely dependent on our technological

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ii8 Is there a ‘new ethics of abortion’? skills. If what we are looking for is some character- This fact alone is so counterintuitive—even horrify- istic(s) of the developing human being itself, in ing to some–that for many it aVords a reductio ad which to ground its intrinsic moral status, then the absurdum—any argument that leads to a conclusion skills and technologies of others are hardly likely to that newborn babies are not people and do not have suYce; yet viability is a criterion that depends a right to life must be flawed and should in any case almost entirely on the technological skills of others. be rejected for leading to such absurd conclusions. Even these days there will be an enormous While such a summary way with arguments that diVerence between in a Third World lead to conclusions that seem absurd or at least village and in a First World neonatal intensive care highly counterintuitive may feel satisfying, it does unit. Moreover given the exponential development not dispose of the arguments. Nor does it dispose of of human technological inventiveness—wizardry a widespread intuition that in the case of very some might call it—Aldous Huxley’s Brave New severely handicapped newborn babies parents and Wo r l d possibilities of growing human embryos and doctors who agree that it would be better if the fetuses entirely outside the human body could infant did not survive and live a life of severe handi- become reality–in which case the criterion of cap should be permitted, morally and legally, to viability will have collapsed into the criterion of fer- allow them to die, even in cases where medical and tilisation. nursing intervention could be expected to save So does the legal criterion—birth—get us out of them, and even in cases where they would not per- our diYculties? Legally speaking the answer is mit similar latitude of choice on behalf of an older largely yes—for UK law, like that of many other handicapped child or adult. jurisdictions, is explicit that a fetus is not legally speaking a person and does not have the legal rights Abortion for abnormality an aVront to of persons including the right to life enjoyed by (natural) persons, whereas a born child is a person disabled people? and does have a right to life. While in practical It should be clear therefore that any substantive terms the simple criterion of birth is generally easy position on when a new human being should be to apply and corresponds to a stage when what was considered to be a human person–a human being previously hidden and private inside another with full moral standing including a right to life and human being is now a revealed, public, and clearly thus a right not to be killed at least if not an separate social entity, as a criterion for moral diVer- aggressor–has associated problems. This has not entiation of a human being’s intrinsic moral status changed since these issues were debated in the it seems highly implausible. Essentially it is a crite- 1960s. What has changed, however, is the debate rion of what might be dubbed biological geography, about abortion on grounds of fetal abnormality, asserting that a human being does not have a right one of the least controversial clauses at the time to life if it lies north of a vaginal introitus but has a David Steel’s Abortion Bill was being debated. right to life once it has passed south and has These days an increasingly forceful disability rights (entirely) emerged from the vagina. What morally movement is arguing that abortion on the grounds http://jme.bmj.com/ relevant changes can there have been in the fetus in of fetal abnormality is morally and legally objec- its passage from inside to outside its mother’s body tionable in discriminating against disabled people to underpin such a momentous change in its and in manifesting and encouraging disrespect, intrinsic moral status? hostility and contempt for disabled people. In this last section of the paper I shall give the gist of my rebuttal of this argument. First, of course, it is Self awareness important to be clear that the argument is logically Finally, criteria that require not just a capacity for watertight if it is agreed that human fetuses (and awarenesss, experience or sentience as a necessary embryos) are people, and thus that fetuses and on September 28, 2021 by guest. Protected copyright. condition for being a person with full moral status, embryos with disabling abnormalities are disabled but that require a capacity for self awareness as a people. If that is the starting position then of course criterion for personhood. Such approaches are the argument is impeccable, and to abort–that is, to usually grounded in the notion that what is kill–fetuses on the grounds that they have abnor- remarkable and of special moral importance about malities that are disabling is as morally repugnant human beings is their ability to reflect rationally, to as it would be to kill adults who have disabling be aware of their moral natures and their responsi- abnormalities. It would indeed manifest and bilities to others and to themselves, and to be able encourage disrespect, hostility, and contempt for to make autonomous decisions based on such disabled people. reflection, to be agents who have free will. Follow- But are those of us who justify abortion for suY- ing the lead of the 17th century physician- cient benefit and who therefore must reject the philosopher John Locke, a capacity for self claim that fetuses are people or persons with full awareness is regarded as at least a necessary condi- moral status including a right to life, to be found tion by those, including myself, who accept this guilty of such discimination if we justify abortion on approach to the attributes needed to be a person the grounds of fetal abnormality? The answer is On this basis a newborn child is not a person, for unequivocally no! neonates do not have such capacities; and therefore Instead what we seek to justify is availability of on this basis newborn babies would not have any choice to pregnant women to prevent the creation intrinsic right to life stemming from their natures. of disabled people by aborting fetuses with

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Gillon ii9 abnormalities that would disable the people they Raanan Gillon is Emeritus Professor of Medical Ethics would become—if they were allowed to develop at Imperial College, London and Senior National into people. If the response to this argument is that Health Service Partner, Imperial College Medical Part- such fetuses already have a right to life, disabled or nership. From 1981-2001 he was Editor of the Journal not, then the response is, as noted above, logically of Medical Ethics. impeccable but begs the question about the moral status of the fetus by asserting that it has full moral standing. If that assertion were accepted then, as noted above, it is as morally wrong to kill a disabled References and notes fetus as to kill a disabled child or adult, and as 1 As reported in Mahoney J. Bioethics and belief. London: Sheed wrong to abort a normal fetus as it would be to kill and Ward, 1984: 67. 2 Department of Social Security. Report of the committee of inquiry a normal child or adult. into human fertilisation and embryology [chair, Lady Mary If, however, the fetus is held not to have full Warnock]. London: HMSO, 1984: 58-66. moral status and not to have a right to life, then 3FordN.When did I begin? Cambridge: Cambridge University Press, 1988 (throughout but especially 164-82). aborting an abnormal fetus shows no more 4 See reference 1: 58 and reference 3: 28 and 41. disrespect or hostility to disabled people than 5 Goldenring J. The brain life theory: towards a consistent aborting a normal fetus shows disrespect or hostil- biological definition of humanness. Journal of Medical Ethics 1985;11:198-204 (for a critique of the putative symmetry ity to people who don’t have disabilities. It shows no between brain death and brain life see Jones D. Brain birth and more disrespect to people than deciding not to . Journal of Medical Ethics 1989;15:173-8). become pregnant at all shows disrespect to people. 6 The originator of the “sentience criterion” was probably Jeremy Bentham in his Introduction to the principles of morals and To permit people to have abortions in order to legislation, ch 17. Two contemporary exponents are Peter allow them to choose not to bring a disabled person Singer in his Animal liberation. Wellingborough: Thorsons, into being in no way justifies, let alone does it entail, 1976, especially chs 1 and 6; and Sumner L. Abortion and moral theory. Princeton: Princeton University Press, 1981, especially any undermining of our obligations to look after ch 4. and care for, respect and be fair to the disabled 7 See for example Strong C, Anderson G. The moral status of the people who do exist. If embryos and fetuses are not near term fetus. Journal of Medical Ethics 1989;15:23-7. 8 A useful discussion of English law in this area is in Davies M. yet people or persons—if they do not yet have full Textbook on medical law. London: Blackstone Press, 1996: 237- moral status including a right to life, then there is 59. simply no logical connection between making 9 See for example Tooley M. Abortion and . Oxford: abortion available to prevent the creation of a disa- Clarendon Press, 1983 especially 40-104. And Harris J. The value of life. London: Routledge and Kegan Paul, 1985 bled person and discriminating adversely against especially 7-27. disabled people. 10 For this formulation see for example reference 3: 82 and 111. http://jme.bmj.com/ on September 28, 2021 by guest. Protected copyright.

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