J7ournal of medical ethics, I979, 5, 133-138 J Med Ethics: first published as 10.1136/jme.5.3.133 on 1 September 1979. Downloaded from

Self-ownership, and infanticide

Ellen Frankel Paul Department of Political Science, Miami University, Oxford, Ohio Jeffrey Paul Department of Philosophy, Northern Kentucky University, Kentucky

perplexing moral predicament. He is told that Authors' abstract destroying a in one spatiotemporal setting Doctors have been placed in an anomalouis position (inside the mother's body) is perfectly permissible by abortion laws which sanction the termination of a while failing to assist it or actively intervening to fetus while in a woman's womb, yet call it murder terminate its life moments later in another setting when a physician attempts to end the life of a constitutes murder. fetus which has somehow survived such a procedure. This predicament, the doctors' dilemma, can be A philosopheres resolution resolved by adopting a strategy which posits the right to ownership of one's own body for human One philosopher, Michael Tooley, offers a resolution beings. Such an approach will generate a to this dilemma which, while generating a consistent consistent policy prescription, one that sanctions set of moral guidelines to the doctor, nevertheless the right of all pregnant women to , creates an egregious moral precedent. Tooley yet grants the fetus, after it becomes viable as a attempts to justify both abortion and infanticide potentially independent person, a right to its own by contending that a fetus and an infant do not body. The doctors' dilemma is surmounted, then, by possess the properties required for an entity to have requiring that abortions of viable be a 'serious .' performed in a manner that will produce a live delivery. Hence, infanticide and termination of . . . my argument has been that having a right to lifecopyright. one to viable fetuses are proscribed. supposes that is capable of desiring continue existing as a subject of experiences and other mental states. This, in turn, presupposes both that one has the concept of such a continuing entity and that one Introduction believes that one is oneself such an entity. So an Recently, an intriguing case has come to trial which entity that lacks such a consciousness of itself as a poses both a moral and legal dilemma for those who continuing subject of mental states does not have a would argue for the permissibility of abortions.' A right to life.4 http://jme.bmj.com/ California doctor was accused of strangling to death Tooley anticipates that such a rule would only a after a saline surviving baby girl legal abortion. sanction the taking of a newborn's life within the The infant, approximately twenty-nine to thirty-one 6 weeks had been first few weeks of existence. But as S I Benn has developed, miraculously delivered persuasively argued, it is doubtful whether even a alive and was being given resuscitation and other aid two year old has such a sophisticated concept by nurses when the doctor was informed of the of itself as an entity with 'a consciousness of itself as situation. Without enquiring about the baby's a continuing subject of mental states...' John on September 30, 2021 by guest. Protected condition, he ordered the nurses to render no Robertson 6 has pointed out that Tooley is also assistance to her, but while he was returning to the subject to a 'thin edge of the wedge' problem in his hospital this order was disobeyed by the nurses. attempt to legitimate infanticide while proscribing When the doctor appeared on the scene, the infant euthanasia. Having once possessed this concept of was still breathing. He was charged by another selfhood which entitles one to moral rights, Tooley doctor, whom he summoned to the scene, with maintains that a present vegetative state in which repeatedly strangling the baby until she finally one no longer has that concept cannot invalidate ceased to breathe or exhibit a heartbeat. one's claim to those rights. But why, Robertson The legal predicament ofthe doctor is clear, but is inquires, does past selfhood qualify as morally it consistent ? Under the Supreme Court decision in relevant while future selfhood, the position of the Roe v. Wade,2 a state can sanction third trimester fetus, does not; such a distinction is purely arbitrary. abortions. California law does so, but also instructs Other strategies have been employed by various that 'the rights to medical treatment of an infant philosophers which might offer a resolution to the prematurely born alive in the course of an abortion doctors' dilemma. should be the same as the right of an infant of similar medical status prematurely born i) Benn argues that, even if the fetus or infant spontaneously.' 3 This places the doctor in a rather were ruled out as persons 7 there are consequentalist x34 Jeffrey Elliot Paul J Med Ethics: first published as 10.1136/jme.5.3.133 on 1 September 1979. Downloaded from reasons of a rule utilitarian kind against infanticide. of the fetus, and investigate the position People will become callous toward human life thus that the mother has a right to her own body, we may jeopardising actual future people tomorrow by discover grounds for resolving the doctors' dilemma. treating potential ones harshly today. Under such a What is unsettling about Thomson's argument is her rationale, however, it is difficult to see how all persistant use (clever though it be) of analogies-the abortion would Iot have to be proscribed if infanti- unwilling victim attached to the kidneys of the cide is impermissible. violinst is most memorable-for as Hare has argued, conclusions drawn from such cases depend entirely 2) Controversy has centred around the status of upon the moral intuitions of the adjudicator. the fetus; is it a person, a mere human being, or a Thomson's intuitions would certainly not be potential person? Michael Tooley and Mary Anne shared by the typical Catholic defender of abortion Warren 8 have attempted to discredit the potentiality nor anyone who held an extreme altruistic moral principle, with Tooley arguing that if we would have ethic. Also, Thomson appears to compromise when no duty to refrain from killing kittens injected with a she declares abortion permissible for fourteen year brain serum that would make them potential persons olds, but positively indecent for a woman in her then we would have no similar duty towards fetuses, seventh month who wants an abortion simply to and Warren alleging that a merely potential person avoid the nusiance of postponing a trip abroad. (non-sentient stuff) cannot be wronged. Others have just as vehemently defended the Self-ownership potentiality principle. R M Hare, for example, 14 that human beings possess a right argues that fetuses as potential people do have a Let us assume ie, a right to right to non-interference under a Golden Rule to the ownership of their own bodies, moral principle: the use and disposition of their persons. How can this be applied to the case at hand, the resolution of If we are glad that nobody terminated the the doctors' dilemma ? First, let us look at the rights that resulted in our birth, then we are enjoined not in question during the pregnancy of the host."5 ceteris paribus, to terminate any pregnancy which Despite 'slippery-slope' arguments to the contrary, will result in the birth of a person having a life like we will argue that a fairly decisive demarcation ours.9 point can be ascertained factually and, what is morecopyright. Hare disparages Tooley's kitten example as based important, morally defended. Thus, the argument purely on intuitionism and not a sufficient refutation from self-ownership will proceed in two stages: ofthe potentiality principle. I) Before viability ofthe fetus, 3) It is no wonder, then, that other philosophers 2) After viability. have declared the question of the morality of abortion to be insoluble. Roger Wertheimer 10 BEFORE VIABILITY OF THE FETUS that http://jme.bmj.com/ concludes that the status of a fetus is not a question Before viability, the contrasting assumptions for everyone could agree on the facts and still the fetus is or is not now a person or a potential of fact, it has rights, dispute over the interpretation of the facts, and person and if either of these, whether hence, the legitimacy of abortion. George Sher "I and will yield the same conclusion in either case. 12 basically concur in this evaluation, Regardless of how these disputes are resolved, the Grant Cosby a contending that moral rules are indeterminate in this determination will be morally irrelevant on If we grant the case; i.e., there is no way to determine rationally self-ownership moral criterion. a person and, be based on genetic assumption that the fetus is potential on September 30, 2021 by guest. Protected whether protection should what capacity or on a developed capacity for future therefore has rights of self-ownership, valued states. follows ? This right cannot make a difference while it is inside the body of an unwilling host. If it is a person (or a potential person) and it is there in her Another view ofthe dilemma body against her will, then it has no right to be there. Perhaps, the latter group of analysts have despaired If it is not a person (or potential person), then the too soon, and another approach might prove less conclusion is identical. If the woman owns her own ambiguous or controverisal. We would like to body, the use and disposition of it is subject to her examine the implications of a strategy adumbrated control and her control alone. The fetus ifunwanted by Judith Jarvis Thomson in her paper, 'A defense by the woman, is an intruder, a virtual parasite. It of abortion.' 13 It is her contention that even if one cannot be wronged by being detached from the host were to concur with the anti-abortionists' thesis that because it has no right to be there in the first place. a fetus is a person, it does not necessarily follow that It is also irrelevant that the fetus did not perform the termination of a fetus is immoral if one also a conscious act of aggression in placing itself inside pursues the line of argument that maintains that a the host's womb, for the fetus, for whatever reason mother has a just prior claim to her body. If we occupies, and therefore intrudes upon, the person of leave temporarily in abeyance the question of the the host without her consent. If it is removed and Self-ownership, abortion and infanticide 135 J Med Ethics: first published as 10.1136/jme.5.3.133 on 1 September 1979. Downloaded from thereby dies, it has not been killed by the host. from it by an active and purposive assault upon its Rather, it has died in the proces7 of being body. What permissible actions on the part of the justifiably ejected from the host's body. The inten- woman and her physician may be taken in this new tion of the host was to justifiably remove the fetus, context? It would seem that a woman who desired not to kill it. If it is alleged, in response, that the an abortion after viability would still have a right to mother had consensually 'placed' the child in her her own body and could eject the intruder. womb by volitionally participating in an act that But, are we left with a 'double effect' problem of could possibly lead to conception and is thereby one person's rights (the host's) conflicting with obligated to keep it there, then the following must be another person's rights (the viable fetus) ? Is there a considered. When one- owns a thing (whether way to resolve this apparent antagonism ? material property or future claims to performance of The mother owns her own body; therefore, she an act) that ownership involves the right to change can remove the fetus from it, but can she do so by one's mind concerning how one wishes to employ employing a process that would directly cause its that property. If I decide that I no longer wish to death? No. For then she would be intentionally grow corn on my farm but instead begin to grow causing the death of a being who might have the barley, that is perfectly within my rights. same right to life as any infant or adult person. To Abortion is undeniably a case which has conse- desire the death of a viable fetus, then, might not be quences of much greater severity than the farm abortion (legitimate self-defence of your body) but example. But does the severity of the consequences rather, murder, the forcible taking of another alter the rights? On a self-ownership principle it person's life. But, does a viable fetus have the right certainly does not. If the fetus is ejected before of self-ownership that we concede to the mother ? viability it will cease to exist, just as Judith One consideration suggests that it does. Given that it Thomson's violinist attached to your kidneys will can survive independently at the moment of its die if you disconnect him. It is not murder in either ejection it can develop into an entity with the case, because in both instances the entitlement of qualities in virtue of which we call its mother a the host to her body implies a right to remove person. Hence, there are grounds for asserting its presently unwanted entities from a location within it claim to be a potential person which would be if applied to its nonviable predecessor. or from a parasitism upon it. The rights of the inappropriate copyright. infant or the violinist to their own persons do not Thus, the Supreme Court erred in Roe v. Wade extend to the bodies ofothers. As a farm's crops may when it permitted states to allow abortions that be removed by its owner, so unwanted persons may result in death for the fetus after it has attained be ejected from one's body. viability. Abortion ought to be permitted in the The farm example, it may be alleged, is illegiti- last trimester of pregnancy only if it involves a mately analogised to the present case which involves procedure that would induce early labour with the the relationship of two parties. It might be objected intent ofproducing a live infant. that in having used her body so as to engender a new http://jme.bmj.com/ life, the host thereby signified agreement to carry The mother's responsibilities that life to full term. But, the basis for such a tacit agreement is altogether too thin. First, such an Now, what would be the mother's responsibilities agreement might not have even remotely been a part towards such an infant? Clearly, she would have of her intention in engaging in a sexual act, and none because she has rejected all obligations. As second, the other party to the agreement, the as yet Thomson argued, one becomes obligated to a baby unconceived fetus, does not exist at this stage as by not aborting it, by not giving it up for adoption, even a potential person. If contracts can only be and by taking it home. This might loosely be on September 30, 2021 by guest. Protected made with persons (or potential persons) then such termed a 'tacit contract'. Our unwilling host has not an agreement cannot have taken place. fulfilled these criteria. What, then, becomes of the ejected infant ? AFTER VIABILITY There are two possible resolutions to this question. But what about the period after the fetus becomes The first derives from the minimal assumption that viable, does this change anything ? After viability, at there is a universal right to one's person which roughly twenty-eight weeks, according to present requires duties of non-interference and forbearance medical technology, the fetus can survive indepen- from injurious behaviour on the part of others. dently of the host given the usual life-support However, if one believes that there is a secondary facilities that are afforded to other premature babies. right to the supports of life, one would have in If the fetus were to be aborted in a manner that addition to this right of non-interference a right to held the possibility of producing a live infant rather assistance. than a corspe, it might survive just as any On the right-to-one's person theory alone the spontaneously born premature baby might live. baby could not be actively interfered with or Now, the relevance of its status as a bearer of a right injured or killed. But neither would anyone have an to its person is significant, as its life must be taken obligation to sustain its life. It theoretically could x36 Elliot Paul

Jeffrey J Med Ethics: first published as 10.1136/jme.5.3.133 on 1 September 1979. Downloaded from fend for itself. In fact, it would die unless Good doctor seems much clearer, now. When he aborts a Samaritans, childless couples, right-to-life groups, live infant he cannot strangle it. He cannot, morally, or other interested parties voluntarily consented to perform a third trimester abortion that will inten- provide for its care. Under current conditions, this tionally kill the fetus. He has no obligation to would present no discernible problem for many personally provide for the continued support of the babies. Problems might arise, however, with infant, but if others are willing to supply such aid he severely defective babies or with infants of mixed or should treat the baby in the same manner as he minority parentage. In either case, individuals would would the product of any live delivery. Therefore, be confronted with the decision of whether and how given our self-ownership assumption, there is no to expend their resources upon abandoned children. morally permissible infanticide or destruction of a On the view that there is an additional right to viable fetus. the supports of life, someone-the mother, society, It is undoubtedly true that as medical science the hospital-would have an obligation to sustain advances, the stage at which a fetus could be viable the life of the infant. That is, someone could be will tend to gradually recede towards the point of compelled to support the child. This would involve conception. This presents no new problems for this denying to some person(s) the full right to use and argument; we would simply have to reappraise the dispose of his/her own baby at all times. Then, we point at which only abortions that aim at the have the old 'double effect' problem coming back to production of live infants would be required. Thus, haunt us; the right to assistance of the baby vs. the what we have demonstrated is that given an right of self-ownership of the unwilling people com- assumption of self-ownership abortion is always a pelled to sustain its life. right of a woman unwillingly pregnant, but after the The positive right-to-life (which we have called viability of the fetus such a procedure can only be assistance rights) position presents thorny problems applied if it aims at the delivery of a live infant. This which can be avoided by the negative right-to-life approach provides certain advantages because it (which we have called the rights-to-one's person) satisfies pro-abortionists by acknowledging the interpretation. The negative right-to-life scenario imprescriptible right of a woman to an abortion, seems preferable on grounds of logical consistency while it grants the anti-abortionists at least part of and parsimony. That is, such a right could be their case that that can inde-

in fetuses survive copyright. compossibly exercised by all persons. In practice, pendently cannot be deprived ofthat opportunity. given the premium placed upon babies in our society, the right-to-one's person theory would References and notes secure the same results as the alternative for healthy 'The case referred to is that ofDr William Waddill in the infants. Notice that even the assistance rights California Superior Court, Orange County. In position does not avoid the difficult problem of 1975, Dr Kenneth Edelin was charged in the defective infants; someone has to make decisions Massachusetts Courts of attempting to smother a about the weight of an unwanted child's claims fetus while in the womb and failing to save it after it http://jme.bmj.com/ to limited recources under a positive right-to-life was born. He was convicted by the trial court, and the conviction was overturned by the appeals court. principle. Some authority must decide how these In the Waddill case, the trial ended in a hung jury scare medical goods ought to be allocated. Should after the judge, during deliberation of the jury, Saint Mary's Hospital be permitted to buy an redefined death as brain death. A second trial has additional kidney dialysis machine or should they been requested by the prosecution. spend their funds on performing life-saving 2Roe v Wade (4IO United States II3, 935 Supreme operations on spina bifida babies or mongoloids? Court 705, I973). Government officials, hospital boards, doctors- 3Bok, S, (I976). Case study: the unwanted child: caring on September 30, 2021 by guest. Protected someone will be making these unpleasant decisions. for a fetus born alive after an abortion, Hastings It appears, then, that both interpretations of the Center Report, 6, 10-I5. 4Tooley, M, (i974). Abortion and infanticide. In The right-to-life have the inescapable problem of rights and wrongs of abortion ed. Marshall, Cohen, assessing the needs of these children in order to Nagel & Scanton p 64. Princeton, Princeton Uni- decide on the appropriate disperson of, in the first versity Press. case, private resources, and in the second case public 5Benn, S I, (I973). Abortion, infanticide and respect for resources. It should be emphasised that on a persons. In The problem of abortion ed. Feinberg, J negative right-to-life principle no one has a duty to Belmont, California, Wadsworth. make a decision as to whether an infant shall live or 6Robertson, J A, (I977). Involuntary euthanasia of die, whereas on the positive principle some person(s) defective newborns: a legal analysis. In Ethical or social institution does have such an issues in modern medicine ed. Hunt, R & Arras, J obligation. pp 206-209. Palo Alto, Mayfield. 7For Benn, a person is defined as an entity aware of Conclusion himself as an agent, as making decisions that make a difference to the way the world goes, as having How does the right to self-ownership strategy projects, and as capable of assessing his own resolve the doctors' diemma? The position of a performance as important or unimportant. Self-ownership, abortion and infanticide 137 J Med Ethics: first published as 10.1136/jme.5.3.133 on 1 September 1979. Downloaded from

"Warren, M A, (I977). Do potential people have moral dilemma? On their own account, the legal duties of rights? Canadian journal of philosophy, 7, 2 pp doctors in various circumstances are all clear enough; 275-284. the criticism seems rather to be that Roe v. Wade Hare, H M, (I975). Abortion and the golden rule, in conjunction with other decisions leads to a Philosophy andpublic affairs, 4, 3 p 208. position which is philosophically arbitrary and °Wertheimer, R, (1974). Understanding the abortion morally incoherent. The optimistic tone of their argument. In The rights and wrongs of abortion conclusions, and their hope that they will provide an op cit. acceptable compromise between extreme positions "'Sher, G, (I977) Hare, abortion and the goldren rule, public affairs, 6, pp I85-190. suggest that they are claiming not merely legal clarity Philosophy and but a and moral success. It is this 12Cosby, G, (1978). Abortion, an unresolved moral philosophical problem, Dialogue, 17, pp I06-I I2. claim which I wish to challenge. 'ownership' as the Pauls use it is far from "Thomson, J J, (1974). A defense of abortion. In The The term rights and wrongs ofabortion op. cit. clear. One might, for example, accept that a person "We have simply assumed a right to self-ownership in owns his own body. And ifone further accepted that human beings without proof. Such a proofwould be a fetus were part of one's body, it might then follow beyond the scope of a paper of this kind. Assuming that one would have a right to remove it, as one that a proof, or failing that, a presumption in favour might have a right to have one's hair cut or one's of a right to self-ownership could be demonstrated, nose shortened. Even on these assumptions, what follows for settling the abortion-infanticide however, it would not follow that one could do just question and the doctor's dilemma? This is the what one liked; it is not in general true that one can strategy we have employed. do what one likes with one's property. I cannot, for 5'Mother' appears to be a loaded term, therefore we have example, burn down my house if to do so would substituted the more neutral sounding term 'host'. endanger the lives or property of others. Of course, it is no part ofthe Pauls' case that the fetus is part of the body of the mother (or, as they significantly prefer, 'host'). Possibly, then, they wish rather to Commentary speak of a right to privacy (a concept mentioned in

the judgment given in Roe v. Wade)? This wouldcopyright. Gerard J Hughes SJ Department ofPhilosophy, explain their speaking of the fetus as an 'intruder' Heythrop College, University of London and a 'virtual parasite'. But of course it would be less plausible for them to have framed their case in terms The paper by Jeffrey and Ellen Paul is a useful and of privacy, since privacy is surely too weak a notion stimulating one. It is useful in that it provides a to justify overriding any rights the fetus may have convenient survey of some of the recent literature and in particular it would not follow that the mother and relates it to practical issues facing American (and would have the right to abort whether or not the presumably not only American) doctors and nurses: fetus has rights, as they conclude. Once it is conceded http://jme.bmj.com/ and stimulating, because it offers a somewhat new that the fetus has rights, and that those rights might philosophical argument, which deserves a philo- conflict with the mother's, it cannot simply be sophical reply. Limitations of space permit me to do asserted without proof that 'the intention of the no more than indicate the general lines along which host is justifiably to remove the fetus, not to kill it'. I would want to challenge it. I offer these remarks That is just what must be proved. The Pauls will as presenting at least prima fade difficulties against either have to invoke just the kind of version of the

his position which would need to be overcome principle of double effect that is rightly discredited on September 30, 2021 by guest. Protected before it could be regarded as acceptable. in moral theology, or they will have to appeal to the One crucial area of ambiguity concerns the aim of distinction between the rights of viable and those of the paper. Is it aiming simply at clearing up a non-viable fetuses which is one of the weakest parts practical difficulty left unresolved by the present of the legislation they are criticising.' state of American law? Or is it undertaking the I am also unconvinced by their other suggestion much more difficult task of giving a philosophically that we adopt the weaker ownership assumption to satisfactory account of the responsibilities of the deal with the rights of aborted living infants. I am medical professions in the area of abortion? The quite unconvinced that the mother has no respon- announced aim is the first of these; and they are sibilities just because she has refused to accept any. careful to present their conclusions as hypothetical Though I can quite appreciate the difficulty involved only, contingent on the acceptance of a particular in deciding who should be responsible for an infant premiss about the rights of ownership. This premiss whose mother refuses to care for it, I do not see that is recommended to us, apparently, on no other this issue can be solved by a bland denial that any grounds except that it would give a rationale for such responsibility exists. The Pauls are right to solving a legal dilemma. I suspect, though, that they point out that to accept a stronger hypothesis about are much more ambitious. Why, for example, is the 'assistance rights' would not solve all the problems. position of the American doctor described as a No, but it would locate them properly, and would