The Logical Limit of Rights to Abortion

Proponents of unlimited abortion rights typically claim that a foetus is not of the same moral kind as an adult human being because “potential” conscious agency is relevantly different from “actual” conscious agency. Here I examine some logical implications of this distinction and show that the claim of moral status of fully-fledged human beings is defensible only if all stages of human development following conception are of the same moral kind, irrespective of differences in the degree of moral status. As a consequence, permissibility of abortion should not be regarded as a licence to disrespect or devalue any stage of human development, either in the debate about abortion or in the clinical practice of abortion. I propose a hybrid account of moral status, taking into account the essential natural capacities of human beings, any developed capacities and the ethical quality of their discretionary use as a justification for asymmetric distribution of rights, without negating moral respect for any stage of human development.

This essay appears in Quadrant‘s September issue.
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Following conception, development of a human being is probably continuous; there is no obvious biologically or morally distinct point at which something non-human or partly human becomes fully human (Gillespie 1984). Rather, after conception, human faculties and “likeness to kind” are a matter of degree. Since we can conceive of ourselves as human only by virtue of identifying with the human-kind, any exclusion from the reproductive continuum that links us to our human ancestors could negate our own humanity and the associated moral status. The spermatozoon is a part of the father, the egg is a part of the mother, but immediately after these parts come together the result is a genetically complete being which is distinct from the sum of its ancestral parts. If the conceived being were not in possession of at least some of the moral status normally granted to fully-fledged (mature and healthy) humans it would be a mystery how it could acquire it at some later time, assuming that being a genetically complete human is a sufficient condition of belonging to the same moral kind as a fully-fledged human—the standard argument (Warren 1973)—and that there are no morally significant discontinuities in the process of becoming a fully-fledged human—the argument from continuity.

Another way, if it is right to kill a human in the foetal stage for any reason whatsoever, then why would it not be right to kill an adult human for any reason whatsoever if there is no objective point of transition from the moral status of one to the moral status of the other? Some may argue that a morally significant point of transition can be imposed by convention but this does nothing to address the issue of disagreement about conventions, which is precisely the problem at hand. To resolve the problem of moral disagreement there must be some objective ground for judging one view correct and another wrong. Failing that, Warren (1997, 170) argues, the Transitivity of Respect principle requires that even if we disagree with moral valuations of others we ought “to avoid harming entities to which other persons ascribe a high moral status … to the extent that is feasible and morally permissible”. The problem would of course persist in the case of further disagreement about what is a morally permissible way “to avoid harming”.

Perhaps moral disagreements about abortion could be dispensed with altogether by defining humanity in the Kantian sense, as something possibly distinct from biological processes and genetic constitution. It is generally understood that “when Kant refers to our humanity, he has our rational capacities in mind. Our humanity, according to Kant, simply is our (distinctively human) capacity for self-directed rational behaviour.” (Markovits 2014, 83). In the words of Kant (1998, 4:389): “when [moral philosophy] is applied to the human being it does not borrow the least thing from acquaintance with him (from anthropology) but gives to him, as a rational being, laws a priori.” Building on the Kantian criterion of humanity as limited to beings capable of “conscious rational agency”, Warren (1973, 53) has suggested a further narrowing of the definition of humanity only to fully-fledged members of the moral community. In Kantian terms this can be approximated as individuals who are contemporaneously conscious, rational agents; not hypothetically, prospectively or possibly, but actually. A similar position is defended by Steinbock (1992). This narrow-scope account of humanity may be attractive to proponents of unlimited abortion rights as it implies that an individual is human (in the relevant moral sense) only if that individual is already capable of exercising conscious rational agency. Clearly, at no stage of pre-birth development are humans capable of satisfying this modified criterion.

The main problem with the narrow-scope account is that, being temporally constrained, it introduces doubt about humanity and therefore about human rights of any agent who would momentarily act irrationally or were unconscious. It may be argued that when an agent acts irrationally or is unconscious that agent is in fact not capable of rationality at that point in time, and therefore momentarily not human, and therefore liable for being put to death with no moral or metaphysical consequences for the killer. A possible objection that an irrational or unconscious agent may regain rationality or consciousness in the future is functionally equivalent to the argument that a foetus may also become a conscious and rational agent in the future and is “therefore” already a member of the moral community, even if not of the same fully-fledged moral status as a sentient child. This raises the question why formerly conscious agents (whom we perhaps would wish to die) should get full moral consideration while prospectively conscious agents should get none just because we don’t want them to be born. Even if some value-asymmetry exists between the two cases, the absolute distinction in moral status does not seem adequately supported by the logical distinction alone. It is also questionable whether inherent or natural capacities can be dismissed in favour of capacities that are actually exercised at the relevant time. We may for example possess a range of capacities without being able to exercise them all simultaneously.

This last point suggests that an account of individual rights based on essential natural capacities, defended among others by Grisez (1970), is more in line with how we normally understand the term “human”, but focusing solely on natural capacities and ignoring the actual capacities and the ethical quality of their individual use overlooks genuine differences relevant to the moral status. Consideration of the actual capacities is particularly relevant to cases of disability, while the ethical quality of how the capacities are used may pose an unwarranted threat to others (the problem of evil). This negative aspect of human capacities is indeed representative of how we normally think of personal culpability and the moral concessions this gives others in the interest of safeguarding both developed and natural capacities of their own (self-defence). Both the natural essential capacities and the developed capacities warrant inclusion in the calculus of moral status. On this hybrid view, natural capacities could safeguard essential rights (such as the right to life), perhaps with discounting for conflicting rights, as is the case of unwanted pregnancy, and for uncertainty about viability in the early stages of biological development. Conversely, superior moral status or censure of moral status may be rationally justified depending on how the essential and developed capacities are exercised by the prospective mother: constructively or destructively, harmoniously or repressively, rationally or irrationally.

On a side note, since rationality is neither a continuous process nor a criterion that can be perfectly satisfied, it follows that the Kantian definition of humanity still demands temporal continuity grounded in belonging to a particular ontological kind (Nagel 1974, 436) or a communication community (Appel 1996, 211; Habermas 2003, 34). (For a discussion of ontological kinds in relation to the abortion debate see my earlier article, “Abortion and Phenomenology”, Philosophy Now, October-November 2018.) It is clearly insufficient to rely merely on transmission of the human status via language, as this fails to account for our instinctive affinity with prelingual children as distinctly human and precious, precisely because of their inherited characteristics and phenomenological “likeness” to their relatives, nor does it necessarily extend to other linguistic or cultural communities despite the fact that rational agents are capable to traversing cultural and linguistic boundaries.

It seems the only rational answer to the question of abortion rights is to take into account the metaphysical cost of such rights, in consideration of continuity of the moral kind throughout the cycle of reproduction. According to Meyer (2001, 18), “when we are considering an entity that has any moral status, destruction, harm, or any other disrespectful treatment cannot be justified by our self-interest alone”. While the foetus, embryo and even the zygote are already genetically complete humans, and their humanity must be respected in order not to negate the moral status of “fully-fledged” humans, it is also a fact that early stages of human development are functionally primitive and remain uncertain as to individual viability. Assuming that a zygote at the instant of conception has minimal (but already positive) human value without being valued by its prospective parents, and given that a child at birth already has the maximum human value irrespective of being valued by its parents, a scale of value could be defined on the basis of “value-added” biological complexity after conception. The decision to abort would then need to be supported by reasons sufficient to either negate the contemporaneous value of a developing human or justify the associated human cost. The logical necessity of granting some moral status to human embryos “entails that they deserve some respect in all contexts, even when they are destroyed for good reason”. (Ibid.)

There may be other meaningful ways of accounting for the conflicting values and interests associated with abortion. Perhaps the scale of human value in pre-birth development should not be strictly tied to biological complexity, or that wanting to terminate pregnancy for any reason is justifiable up to a point, but I fail to see a way to rationally pose this problem that could dispense with the human value of an embryo altogether. If this is right then every stage of human development is owed respect, both in the debate about abortion and in the clinical practice of abortion. Devaluation of an embryo or a foetus as “just a clump of cells”, treating it as organic waste or as a commodity, is both logically self-defeating (it negates any claim of right based on our own humanity) and arguably socially harmful. I am not suggesting that on this account abortion is provably immoral, or that it should be illegal; only that our attitude with respect to early stages of human development has logical consequences for ourselves and for humanity that need to be factored into our ethical judgment and attitude.

Michael Kowalik is a philosopher working in the field of normativity, meta-ethics, value theory and economic reasoning.

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