The last time I had the opportunity of discoursing with Peter Singer was in May 1998 in the Philosophy Society at Oxford, right behind the College where we were colleagues for a while in the 1970s. The topic in 1998 was “Brain Death,” and we had a fair measure of agreement that the contemporary tests and criteria for brain death are an unsatisfactory guide to determining when death has occurred. But we disagreed about some things. One was the ethical question whether it’s sometimes right to choose to kill living human beings, as Peter thinks, and I deny, because I believe that everyone equally has the right not to be deliberately killed precisely as a means to someone else’s well-being. Another was that Peter wanted (and I’m sure still wants [but see postscript]) to treat the question whether someone is dead as an “ethical question”—or in this afternoon’s jargon, a question of the moral status of anencephalic babies, people in persistent vegetative states (PVS), and so forth. I consider that it is a question of fact—of understanding, if you like philosophically and biologically, what it is for an organism of a certain substantial kind to have ceased to be an organism of that substantial kind (which is essentially what happens at that organism’s death).
The last time I had the opportunity of discoursing on today’s topic was at the American Political Science Association, in 2000, in a debate with the Rawlsian political philosopher Jeffrey Reiman. Reiman is a liberal, but he too, like Peter Singer, doesn’t believe in human equality. Peter must speak for himself, but in his publications around 2000 he agrees, I think, with Reiman that birth has little or no real moral significance. Reiman’s position is clear enough: the baby has no more rights, is no more entitled to respect, in the minutes or hours or days, or weeks, after birth than in the minutes or hours or days, or weeks, before birth. So far he and Peter agree. But then they split; for Reiman the child doesn’t acquire the equal moral status of having rights of its own for several years, when it has started to “consciously care about the continuation of its life”—whereas for Peter the moral status of equality and right to life is to be affirmed (I’m not sure why) a month after birth. (In the debate following this presentation, Singer made clear that his “one month” proposal dates back to 1984 and was intended just as a pragmatic legislative line, and that his basic and present view approximates to Reiman’s.)
So, on Reiman’s view (and I suppose Peter’s), if there is to be a law against infanticide from birth, it certainly doesn’t rest on the moral rights, or moral status, of the young infant—it has none—but only on the feelings and dispositions of adults. And Reiman is keen to add this: since the unborn child, like the born child for quite a while, has no right to life, the mother’s right to an abortion is not a right simply to be relieved of the presence of what is growing in her body, but a right to ensure that it is killed, whether or not it was delivered or expelled alive.
All parts of this view are rejected by our law, and, I want to say, by our civilization. In 2002 both houses of Congress unanimously passed the Born Alive Infants Protection Act, with the stated objective: “to repudiate the flawed notion that the right to an abortion means the right to a dead baby, regardless of where the killing takes place.” This was in response to the Farmer decision of the Court of Appeals of the Third Circuit in 2000 which seemed to mean that even a fully delivered baby could be lawfully killed if the reason for its delivery was abortion. At that time the Supreme Court had declared that if the baby is two-thirds outside and one-third inside, its mother has the right to employ someone to kill it. The doctor who developed this procedure, Martin Haskell, testified to Congress that in his standard version of the procedure (outlawed in 30 states but upheld by the Supreme Court) it would be possible to deliver the baby fully, in perfect health and without injury, if one treated the woman with dilating drugs for longer, but one doesn’t do that, because “the point here is you’re attempting to do an abortion … [The point is not] to see how do I manipulate the situation so that I get a live birth instead.”
Haskell was doing this skull-emptying of a living healthy baby almost fully delivered from a physically healthy mother at 22, 23, 24, 25 or 26 weeks of gestation or pregnancy. My pediatrician daughter treats premature babies of some of these ages. While there can be agonizing problems about the futility or medical benefit of treatment, no one involved in her practice—mothers, nurses, doctors—has the slightest doubt about the nature of the baby as a human person or, consequently, about its moral status as a bearer of interests and rights, unconscious though it often is for days or weeks. So there are babies born, babies half-born, and babies soon to be born. Since 1973, U.S. constitutional law allows abortion virtually completely freely for a further 11-15 weeks beyond the stage I have just been mentioning.
The first time I debated the rights and wrongs of abortion (which I’m not here to do today, as I am to limit my remarks to the “moral status” of the “fetus”) was in print with Judith Jarvis Thomson, author of the justly famous article about the kidnapped violinist, the first philosophical article to articulate a woman’s right to an abortion, an article whose thesis about the significance of the intimate intertwinement of the mother and the unborn child has been elaborated and extended by Margaret Little. Of course, this was 1971, so Thomson, while most strenuously arguing for this moral right, denied that it includes a right to get the baby dead. (Since then, hearts have hardened.) She had this to say about our topic this afternoon:
I am inclined to think also that we shall probably have to agree that the fetus has already become a human person well before birth. Indeed it comes as a surprise when one first learns how early in its life it begins to acquire human characteristics. By the tenth week, for example, it already has a face, arms and legs, fingers and toes; it has internal organs and brain activity is detectable.
That was 1971 and since then ultrasound makes all this much less surprising. And once Roe v. Wade and even more importantly Doe v. Bolton came along in January 1973, people became more resolute than Judith Jarvis Thomson in denying that what they could see is a human baby, is a human person, or has moral status.
All sorts of stages have been proposed for “becoming a person” or “acquiring moral status”: implantation, development of the primitive streak, brain life, sentience, quickening, viability outside the womb, actual birth, actual birth unless it was an induced abortion, formation of desires, formation of concepts, formation of self-consciousness, valuing your own existence—but these all cancel each other out, and anyway, with the talk of the threshold being desires, or self-consciousness, or conscious concern to stay alive, we are now deep, deep into infanticide territory with Peter Singer and Jeffrey Reiman. These are positions that willy-nilly are incompatible with non-arbitrarily affirming the personhood of adults who are in even temporary unconsciousness. And what is wrong in principle with their positions is that they deny human equality, elevating various subrational animals of their choice above healthy young babies weeks, months, and years after birth, and above the deeply disabled mentally or physically.
The thing about moral status is, if you believe in morality at all, that it is not a matter of choice or grant or convention, but of recognition. If you hear anyone talk about conferring or granting moral status, you know they are deeply confused about what morality and moral status are. The very idea of human rights and status is of someone who matters whether we like it or not, and even when no one is thinking about them; and matters, whether we like it or not, as at bottom an equal, because like us in nature as a substantial kind of being.
This mattering is the immediate basis for respect, including self-respect, and for guilt or remorse when one betrays another. It goes with the territory we call meaning, which transcends times and places, and forces us to speak about mind or spirit, and freedom of choice. If we are thinking alertly to the realities of the realm of sharable interiority, we know what it is to be a developed and conscious person: a being who finds himself or herself to have a rational nature, capacities that combine intelligibility with intelligence. A nature to be recognized and acknowledged, not conferred.
If one asks oneself about one’s own personal origins, one can go back to one’s earliest memories, and then to the earliest photographs, earlier than one’s surviving memories but showing one as a center of personal life; and then to the life before birth that was scarcely or not at all conscious, but is recorded perhaps in those ultrasound photos which show you as you, a white male thumb-sucker, or a vigorous female Chinese thrower of punches, or whatever. Now we are only a couple of months from our conception. But it is certain that we began before.
Unless we are one of the 1% who are identical twins, we began as Louise Brown the first IVF baby began in the discriminating care of Professor Robert Edwards who got the Nobel Prize for it last week: “She was beautiful then” he said at her birth, showing a photo of her at one cell, “and she’s beautiful now.” Edwards gives a lucid account of the dynamic self-directing unity of the embryonic being who even at one cell smaller than a pin-head has scores of millions of molecular components all organized, then and there, to make him or her, well, him, or her, and brown, yellow, black or white, and clever or not so clever, and clumsy or not so clumsy, and much else, by nature.
The key concept here is radical capacity. The early human embryo has the radical capacity to think and laugh and pun; all it (he or she) needs is time and nourishment, no more: the actual and active second-order or radical capacity, written into its molecular and cellular constitution, to develop first-order, promptly usable capacities such as to learn a language here and now.
In the discussion, I put to Singer the following hypothesis, which I owe to Patrick Lee. Suppose that on my return home I am diagnosed with a rare and lethal brain tumor which can be cured only by excision of a part of my brain such that all my memories of life, people, languages, etc. before the operation will be irreversibly expunged, though I will retain the capacity, after nine months of unconsciousness following the operation, to rebuild a new stock of memories, language, skills, affections, etc. Right after this operation, would not my “moral status” or, more relevantly, my reality as a person, be essentially that of the newborn baby and indeed of the early embryo? (Unfortunately, Singer was never called upon to answer my question.) The chairman of the panel, Prof. Arthur Caplan intervened to say that I would not be me (JMF). But of course I denied that completely; I would be JMF before, during, and after the operation, someone who suffered grievous loss in and as a result of the operation, but retained like the embryo and newborn baby the radical capacity for continued life as the one and only person I already am.
But I wasn’t asked to discuss the moral status of the embryo, but of the fetus. You ceased to be conventionally called an embryo 56 days into your life and became in medical parlance—but it’s just a conventional boundary—a fetus, which you remain, for purposes of discourse between doctors: a fetus until delivered. But of course, a website describing ultrasound for expectant mothers doesn’t talk about her fetus but her baby, and so do her doctors unless they’re her abortionists or think she has been or is interested in abortion. So there’s the topic of the moral status of the fetus, and there’s the topic of the moral status of the phrase “the fetus.”
About the moral status of the fetus, it’s clear, I suggest, beyond doubt, after forty years of intense philosophical discussion, that there’s no credible halfway house between, on the one hand, acknowledging that whether we like it or not the fetus—indeed the embryonic baby from the outset—has the same radical equality of nature that we all have despite myriad differences, and on the other hand joining Peter and Jeffrey in denying two things: (1) denying that the primary question is one of fact—shared nature as beings all having or capable of developing (given only food and protection) rational characteristics and activities, and (2) denying equality or ethical or moral entitlement to rights such as life until some time after birth (and here I think Reiman’s position will prove more stably defensible than Peter’s in making that years after birth; but of course neither of them can limit their denial of human equality to conditions of infancy; the denial extends to various sorts of disablement and decay). And each of them goes wrong from the outset in making “moral status” the fundamental predicate in the discussion, instead of predicates of the form “person,” “rational nature,” “kind of being.”
About the moral status of the phrase “the fetus,” I will just say this. As used in the conference program and website, which are not medical contexts, it is offensive, dehumanizing, prejudicial, manipulative. Used in this context, exclusively and in preference to the alternatives, it is an F-word, to go with the J-word, and other such words we know of, which have or had an acceptable meaning in a proper context but became in wider use the symbol of subjection to the prejudices and preferences of the more powerful. It’s not a fair word, and it does not suggest an open heart. Those of you who have an open mind or a fair heart may wish to listen to every speaker at this conference, and see whether they are willing to speak, at least sometimes, of the unborn child or unborn baby, and to do so without scare quotes or irony.
For about 12 weeks after viability some of these little beings are on the outside being tended by the pediatrician and everyone as babies, and some of them are on the inside still intertwined with their mothers, and being cared for, in some cases, by gynecologists who recognize they have two patients, and in some cases, as the mother decides (in America, or the party official in China) being threatened with destruction by her (or the state’s) abortionist as a mere fetus. However extensive the rights in all fairness of the mother, and they are extensive, they are no basis at all for denying to the child she’s bearing during those twelve weeks its proper human name, her baby or child—what an important article of Margaret Little’s calls at one point “being connected to the child in one’s belly.” So, I suggest, listen; this is a litmus test, in words, of this conference’s motto.
Peter Singer has written to me to say that his position is, and has always been, that the question when someone is dead is one of fact, not an ethical issue. “I have never believed that when a being is dead is an ethical question. Why would I, given, that, as you know, I think it is sometimes ethically acceptable to kill innocent human beings?”
I am happy to accept that this is his view, and accordingly to withdraw my parenthetical remark “(and I’m sure still wants)”.
But although neither he nor I can lay hands at present on his 1998 Oxford paper, the 1999 version of it which he has dug out amply confirms, in my opinion (though not his), that in 1998/9 he was arguing, against Grisez and Boyle and Pius XII, that establishing the time of death with more precision than the vague traditional concept of death allowed must be an ethical, not a factual issue. He persisted in that position in 1999, despite my firm and prominent critique of it in Oxford in 1998, and in my opinion he is still in some confusion about it.
John Finnis is Professor of Law and Legal Philosophy in the University of Oxford and the Biolchini Family Professor of Law at the University of Notre Dame. This piece is adapted from his remarks delivered at the conference “Open Hearts, Open Minds, and Fair-Minded Words,” held on the campus of Princeton University on October 15th and 16th, 2010.