In this final installment of my series on the arguments for abortion rights, I will continue where I left off in the previous article with a critique of some "decisive moment theories." In addition, I will make some brief comments about the "gradualist" thesis. I will conclude with responses to common questions about the pro-life view that full humanness begins at conception.

DECISIVE MOMENT THEORIES (CONTINUED)

Beginning of Brain Development

Some bioethicists, such as Baruch Brody, believe that full humanness begins when the brain starts functioning, which can first be detected by the electroencephalogram (EEG) at about 40 to 43 days after conception.¹ (Although Brody has moral problems with abortion on demand prior to brain functioning, this is not because he believes the unborn is fully human.) Brody maintains that in order to decide when something is fully human, "we must first see...what properties are such that their loss would mean the going out of existence (the death) of a human being."² He concludes that since at brain death a human being goes out of existence (at least in this mortal realm), the presence of a functioning human brain is the property which makes one fully human. Hence, it would only follow that the start of brain functioning is the beginning of full humanness.

The fundamental difficulty with this argument "is that brain death indicates the end of human life as we know it, the dead brain having no capacity to revive itself. But the developing embryo has the natural capacity to bring on the functioning of the brain."³ That is to say, an entity's irreversible absence of brain waves after the brain waves have come into existence indicates that the entity no longer has the natural, inherent capacity to function as a human being, since our current technology is incapable of "reactivating" the brain. However, the unborn entity who has yet to reach the stage in (his or) her development at which brain waves can be detected, unlike the brain dead individual, possesses the inherent capacity to have brain waves. She is like a patient with a temporarily flat EEG. "The two stages of human life are, then, entirely different from the point of view of brain functioning. The embryo contains the natural capacity to develop all the human activities: perceiving, reasoning, willing and relating to others. Death means the end of natural growth, the cessation of these abilities."⁴

Brody responds to this criticism by presenting the following science-fiction case:

Imagine that medical technology has reached the stage at which, when brain death occurs, the brain is removed, "liquified," and "recast" into a new functioning brain. The new brain bears no relation to the old one (it has none of its memory traces, and so on). If the new brain were put into the old body, would the same human being exist or a new human being who made use of the body of the old one? I am inclined to suppose the latter. But consider the entity whose brain has died. Is he not like the fetus? Both have the potential for developing into an entity with a functioning brain (we shall call this a weak potential) but we can conclude, it seems to me, that an entity can go out of existence even if it retains a weak potential for having a functioning brain, and that, analogously, the fetus is not a human being just because it has this weak potential. What is essential for being human is the possession of the potential for human activities that comes with having the structures required for a functioning brain. It is this potential that the fetus acquires at (or perhaps slightly before) the time that its brain starts functioning, and it is this potential that the newly conceived fetus does not have.⁵

I do not believe that this response succeeds. First, unlike the potential of the corpse's dead brain to be liquified and recast as a new brain, the unborn's potency to develop is within itself (intrinsic). "As in the case of other organisms," philosopher A. Chadwick Ray points out, the unborn's development "admittedly requires nourishment from outside and an appropriate environment (consider parasites), but still, the fetus has within itself the power to appropriate nourishment and grow." On the other hand, the potential of Brody's corpse is utterly extrinsic. That is, "it can be acted upon from the outside and brought to life, but without immediate surgery its life will not be restored, and it will simply rot."⁶

Second, the unborn has "interests of itself, in a straightforward, non-projective way, that go beyond the interests of its component parts cells, tissues, etc.," just as I as a living organism have interests that go beyond the interests of my component parts ears, nose, teeth, etc. On the other hand, the corpse "has no interests beyond those of its parts. The component cells may have an interest in continuing to live, but the corpse itself has none." For example, "there would be no loss in the corpse's organs, all being donated to different patients (imagine donating every living cell if you prefer), whereas in a living fetus's being chopped up for spare parts its own interests would be sacrificed."⁷

In summary, "the growth of the fetus is in its own interest and is the realization of its intrinsic potential, in which realization its identity is preserved." However, "the implanting of a new brain into a brainless corpse would constitute the genesis of a new organism with its own new telos and interests where there were none."⁸ Therefore, since the prebrain-functioning unborn entity has a natural inherent capacity for brain functioning while the corpse does not, they do not have the same kind of weak potential that Brody claims they have.

Viability

As I noted in Part Three, viability is the time at which the unborn human can live outside her mother's womb. Some have argued that prior to this time, since the unborn cannot survive independent of her mother, she is not a completely independent human life and hence not fully human.

Bioethicist Andrew Varga points out a number of problems with the viability criterion. First, "how does viability transform the nature of the fetus so that the non-human being then turns into a human being?" That is to say, viability is a measure of the sophistication of our neonatal life-support systems. Humanity remains the same, but viability changes. Viability measures medical technology, not one's humanity.

Second, "is viability not just an extrinsic criterion imposed upon the fetus by some members of society who simply declare that the fetus will be accepted at that moment as a human being?"⁹ In other words, the viability criterion seems to be arbitrary and not applicable to the question of whether the unborn is fully human, since it relates more to the location and dependency of the unborn than to any essential change in her state of being. This criterion only tells us when certain members of our society want to accept the humanity of the unborn.

And third, "the time of viability cannot be determined precisely, and this fact would create great practical problems for those who hold this opinion."¹⁰ For example, in 1973, when the Supreme Court legalized abortion, viability was at about twenty-four weeks. But now babies have survived 20 weeks after conception. This, of course, puts the pro-abortionist in a morally difficult situation. For some health care facilities are killing viable babies by abortion in one room while in another room heroically trying to save premature infants (preemies). It seems only logical that if the 21-week-old preemie is fully human, then so is the 28-week-old unborn who can be legally killed by abortion. This is why philosopher Jane English, who is a moderate on the abortion issue (i.e., her position does not fit well into either the pro-life or pro-choice camp, although she seems closer to the latter), has asserted that "the similarity of a fetus to a baby is very significant. A fetus one week before birth is so much like a newborn baby in our psychological space that we cannot allow any cavalier treatment of the former while expecting full sympathy and nurturative support for the latter...An early horror story from New York about nursers who were expected to alternate between caring for six-month premature infants and disposing of viable 24-week aborted fetuses is just that — a horror story." English writes that "these beings are so much alike that no one can be asked to draw a distinction and treat them so differently."¹¹

Many who defend the viability criterion argue in a circle. Take, for example, Supreme Court Justice Harry Blackmun's use of it in his dissenting opinion in Webster v. Reproductive Health Services (1989):

The viability line reflects the biological facts and truths of fetal development; it marks the threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling.¹²

Blackmun first tells us that viability is the time at which the state has interest in protecting potential human life because the fetus has no interests or rights prior to being able to survive outside the womb. But then we are told that viability is the best criterion because it "takes account of the undeniable fact that as the fetus evolves...and loses its dependence on the uterine environment, the State's interest in the fetus' potential human life... becomes compelling." In other words, Blackmun is claiming that the state only has an interest in protecting fetal life when that life can live outside the womb. But why is this correct? Because, we are told, prior to being able to live outside the womb the fetus has no interests or rights. But this is clearly circular reasoning, for Blackmun is assuming (that the fetus has no interests or rights prior to viability) what he is trying to prove (that the fetus has no interests or rights prior to viability). This argument is no more compelling than the one given by the political science professor who argues that democracy is the best form of government because the best form of government is one run by the people (which, of course, is democracy). Such arguments are circular because they provide no independent reasons for their conclusions.

The Attainment of Sentience

Some ethicists argue that the unborn becomes fully human sometime after brain development has begun, when it becomes sentient: capable of experiencing sensations such as pain. The reason for choosing sentience as the criterion is that a being that cannot experience anything (i.e., a presentient unborn entity) cannot be harmed. Of course, if this position is correct, then the unborn becomes fully human probably during the second trimester and at least by the third trimester. Therefore, one does not violate anyone's rights when one aborts a nonsentient unborn entity.¹³

There are several problems with this argument. First, it confuses harm with hurt and the experience of harm with the reality of harm.¹⁴ One can be harmed without experiencing the hurt that sometimes follows from that harm, and which we often mistake for the harm itself. For example, a temporarily comatose person who is suffocated to death "experiences no harm," but he is nevertheless harmed. Hence, one does not have to experience harm, which is sometimes manifested in hurt, in order to be truly harmed.

Second, if sentience is the criterion of full humanness, then the reversibly comatose, the momentarily unconscious, and the sleeping would all have to be declared nonpersons. Like the presentient unborn, these individuals are all at the moment nonsentient though they have the natural inherent capacity to be sentient. Yet to countenance their executions would be morally reprehensible. Therefore, one cannot countenance the execution of some unborn entities simply because they are not currently sentient.

Someone may reply that while these objections make important points, there is a problem of false analogy in the second objection: the reversibly comatose, the momentarily unconscious, and the sleeping once functioned as sentient beings, though they are now in a temporary state of nonsentience. The presentient unborn, on the other hand, were never sentient. Hence, one is fully human if one was sentient "in the past" and will probably become sentient again in the future, but this cannot be said of the presentient unborn.

There are at least three problems with this response. First, to claim that a person can be sentient, become nonsentient, and then return to sentience is to assume there is some underlying personal unity to this individual that enables us to say that the person who has returned to sentience is the same person who was sentient prior to becoming nonsentient. But this would mean that sentience is not a necessary condition for personhood. (Neither is it a sufficient condition, for that matter, since nonhuman animals are sentient.) Consequently, it does not make sense to say that a person comes into existence when sentience arises, but it does make sense to say that a fully human entity is a person who has the natural inherent capacity to give rise to sentience. A presentient unborn human entity does have this capacity. Therefore, an ordinary unborn human entity is a person, and hence, fully human.

Second, Ray points out that this attempt to exclude many of the unborn from the class of the fully human is "ad hoc and counterintuitive." He asks us to "consider the treatment of comatose patients. We would not discriminate against one merely for rarely or never having been sentient in the past while another otherwise comparable patient had been sentient....In such cases, potential counts for everything."¹⁵

Third, why should sentience "in the past" be the decisive factor in deciding whether an entity is fully human when the presentient human being "is one with a natural, inherent capacity for performing personal acts?"¹⁶ Since we have already seen that one does not have to experience harm in order to be harmed, it seems more consistent with our moral sensibilities to assert that what makes it wrong to kill the reversibly comatose, the sleeping, the momentarily unconscious, and the presentient unborn is that they all possess the natural inherent capacity to perform personal acts. And what makes it morally right to kill plants and to pull the plug on the respirator-dependent brain dead, who were sentient "in the past," is that their deaths cannot deprive them of their natural inherent capacity to function as persons, since they do not possess such a capacity.

Criteria of Personhood

Several ethicists, such as Michael Tooley,¹⁷ Mary Anne Warren,¹⁸ James Rachels,¹⁹ and Virginia Ramey Mollenkott,²⁰ have put forth criteria that a being must fulfill in order to be considered fully human. For some these criteria apply to any entity, whether before or after birth. In fact, according to Tooley, birth has no bearing on the moral status of the newborn.²¹

Those who defend criteria for full humanness make a distinction between "being a human" and "being a person." They argue that although the unborn are part of the species homo sapiens, and in that sense are human, they are not truly persons since they fail to fulfill a particular set of personhood criteria. Although the defenders of personhood criteria do not agree on everything, their underlying philosophical assumptions are similar enough that it is safe to say that if I can show that these assumptions are significantly flawed then no personhood criteria theory can succeed in supporting the abortion-rights position. Since Mollenkott's view is the most clear and succinct example, I will use her article as my point of departure to critique the personhood criteria position. Although much of my critique of this view can be found in my criticisms of the other decisive moment and gradualist theories, its underlying philosophical assumptions, which are oftentimes not addressed by the proponents of this view, are deserving of a separate critique.

In order to fully grasp Mollenkott's position, let me quote her at length:

Kay Coles James of the National Right to Life Committee claimed that fetal personhood is a biological fact rather than a theological perception. But in all truthfulness, the most that biology can claim is that the fetus is genetically human.... The issue of personhood is one that must be addressed through religious reasoning. Hence, the Lutheran Church in America makes "a qualitative distinction" between the claims of the fetus and "the rights of a responsible person made in God's image who is in living relationships with God and other human beings." Except in the most materialistic of philosophies, human personhood has a great deal to do with feelings, awareness, and interactive experience.²²

Mollenkott's argument can be put in the following argument-outline:

• (Premise 1) A person can be defined as a living being with feelings, awareness, and interactive experience. (I assume she means some sort of consciousness.)

• (Premise 2) An unborn entity does not possess the characteristics of a person as defined in Premise 1.

• (Intermediate Conclusion) Therefore, an unborn entity does not possess personhood.

• (Final Conclusion) Therefore, killing an unborn entity is not seriously wrong.
  

Others, such as Tooley and Warren, give more elaborate criteria of human personhood. For instance, Tooley claims that a being "cannot have a right to continued existence unless he possesses the concept of a subject of experiences, the concept of a temporal order, and the concept of identity of things over time." And since "the concept of a right is such that an individual cannot have a right that p be the case unless the individual is capable of desiring that p be the case," it follows that a nonself-conscious being with no desire for its own continued existence has no right to life.²³ Hence, the unborn do not have a right to life. In any event, the philosophical assumption behind both Mollenkott's and Tooley's arguments, as well as the arguments of others such as Warren and Rachels, is that only an entity that functions in a certain way (e.g., in the case of Tooley, "is capable of desiring that p be the case") is a person with a full right to life (i.e., fully human). I maintain that this position has several flaws.

First, it does not seem to follow from the intermediate conclusion (that an unborn human is not a person) that abortion is always morally justified. Jane English has pointed out that "non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all."²⁴

English goes on to write that we consider it morally wrong to torture beings that are nonpersons, such as dogs or birds, although we do not say these beings have the same rights as persons. And though she considers it problematic as to how we are to decide what one may or may not do to nonpersons, she nevertheless draws the conclusion that "if our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work."²⁵

Second, one can question why one must accept a functional definition of personhood to exclude the unborn. It is not obvious that functional definitions always succeed. For example, when the Boston Celtics' Larry Bird is kissing his wife, does he cease to be a basketball player because he is not functioning as one? Of course not. He does not become a basketball player when he functions as a basketball player, but rather, he functions as a basketball player because he is a basketball player. Similarly, when a person is asleep, unconscious, or temporarily comatose, or a newborn, he (or she) is not functioning as a person as defined in premise 2. Nevertheless, no reasonable person would say that this individual is not a person while in this state.²⁶ Therefore, since a person functions as a person because he is a person and is not a person because he functions as a person, defining personhood strictly in terms of function is inadequate.

Of course, the abortion-rights advocate may want to argue, as was argued in the case of the sentience criterion, that the analogy between sleeping/unconscious/comatose persons and the unborn breaks down because the former at one time in their existence functioned as persons while the latter, the unborn, did not. Although this point is worth noting, the abortion-rights advocate fails to grasp the significant flaw in defining personhood strictly in terms of function.

As I pointed out in my criticism of the sentience criterion, to claim that a person can be functional, become nonfunctional, and then return to a state of function is to assume that there is some underlying personal unity to this individual that allows us to say that the person who has returned to functional capacity is the same person who was functional prior to being in a nonfunctional state. But this would mean that human function is a sufficient but not a necessary condition for personhood. Consequently, it does not make sense to say that a person comes into existence when human function arises. Rather, it does make sense to say that a fully human entity is a person who has the natural inherent capacity to give rise to human functions. And since an unborn entity typically has this natural inherent capacity, (he or) she is a person.

As John Jefferson Davis writes, "Our ability to have conscious experiences and recollections arises out of our personhood; the basic metaphysical reality of personhood precedes the unfolding of the conscious abilities inherent in it."²⁷ Therefore, an ordinary unborn human entity is a person, and hence, fully human. In other words, because the unborn human is a person with a certain natural inherent capacity (i.e., her essence), she will function as a person in the near future, just as the reversibly comatose and the temporarily unconscious will likewise do because of their natural inherent capacity. The unborn are not potential persons but persons with much potential.

Along the same lines, Ray has made the observation that the view of human person as a natural "kind" which provides a ground for certain functions, rather than as an emergence of certain functions, is more consistent with our general moral intuitions. For "the recognition of the rights of the young is less dependent on their actual, current capacities than on their species and potential [i.e., their natural inherent capacity]."

For example, no one doubts that day-old human children have fewer actual capacities than day-old calves. Human infants, in terms of environmental awareness, mobility, etc., are rather unimpressive in comparison to the calves, especially if one calculates their ages from conception. But this comparison does not persuade us to believe that the calves have greater intrinsic worth and an inherent right to life. For if human infants were sold to butchers (let us suppose for the high market value of their body parts) in the same way that farmers sell calves to humane butchers, we would find such a practice deeply disturbing. Yet if intrinsic worth is really contingent upon current capacities rather than natural inherent capacity, we should have no problem with the selling of human infants to butchers. But Ray points out why we do find such a practice morally repugnant: "The wrongness would consist not merely in ignoring the interest that society might have in the children, but in violating the children's own rights. Yet if those rights are grounded in current capacities alone, the calves should enjoy at least the same moral status as the children, and probably higher status." What follows is that "the difference in status is plausibly explained... only with reference to the children's humanity, their natural kind."²⁸

THE GRADUALIST THESIS

Those who defend the gradualist thesis, such as Daniel Callahan and Robert Wennberg,²⁹ argue that the unborn entity increases in value as it develops physically. Unlike the theories critiqued above, in this view there is no one decisive moment at which the unborn entity moves from nonperson to person. For example, the one-celled zygote has less value than the three-month fetus while the three-month fetus has a lesser right-to-life than the eight-month fetus.

There have been a number of critiques of this position which space does not permit me to articulate here.³⁰ However, our critique of the major decisive-moment theories in Parts Three and Four of this series is sufficient to refute gradualism. That is to say, since none of the decisive moments we have already gone over can be shown to eradicate the full humanness of the unborn entity at any stage of her development, it follows that there are no philosophical, scientific, or moral grounds by which to say that the unborn gradually becomes fully human. For she would still need to achieve full humanness at some decisive moment. That is, someone who is fully human cannot gradually become more fully human. Certainly it is true that the unborn human physically develops gradually, as is true of humans at later stages (e.g., infancy, childhood, adolescence). But it does not follow from this fact that the unborn human is any less human than the infant, the child, or the adolescent. They are nonetheless fully human although they are gradually developing.

COMMON QUESTIONS

In my critique of the decisive moment theories, I dealt with a number of objections to the pro-life position. However, there are other common objections which should be answered. In this final section, I will briefly respond to five common questions asked about the pro-life position.

SUMMING IT UP

In this four-part series I critiqued four basic types of arguments that have been put forth in defense of both liberal and moderate positions on abortion rights: (1) arguments from pity (Parts One and Two); (2) arguments from tolerance (Part Two); (3) ad hominem arguments (Part Two); and (4) arguments from decisive moments (Parts Three and Four). In the process of critiquing these arguments I gave a defense of the pro-life position that full humanness begins at conception (Parts Three and Four), which included a detailed presentation of fetal development (Part Three).

Despite the number of arguments covered in this series, some readers will be disappointed that I did not deal with some theological arguments³² or lesser known philosophical arguments.³³ But since even a four-part series has its limitations and since Justice Harry Blackmun (who wrote the majority decision in Roe v. Wade [1973]) has argued that the morality of abortion is completely contingent on the full humanness of the unborn,³⁴ what has been covered in this series is more than sufficient. For this series has clearly established the following conclusions: (1) the popular arguments for abortion rights either beg the question as to the full humanness of the unborn or ignore the question altogether; and (2) both sound philosophical and scientific reasoning clearly establish the full humanness of the unborn from the moment of conception.

NOTES

¹ Baruch Brody, Abortion and the Sanctity of Human Life: A Philosophical View (Cambridge, MA: M.I.T. Press, 1975).
² Ibid., 102.
³ Andrew Varga, The Main Issues in Bioethics, 2d ed. (New York: Paulist Press, 1984), 61-62.
⁴ Ibid., 62.
⁵ Brody, 113-14.
⁶ A. Chadwick Ray, "Humanity, Personhood, and Abortion," International Philosophical Quarterly 25 (1985):238.
⁷ Ibid.
⁸ Ibid.
⁹ Varga, 62-63.
¹⁰ Ibid., 63.
¹¹ Jane English, "Abortion and the Concept of a Person," in Biomedical Ethics, ed. Thomas A. Mappes and Jane S. Zembatty (New York: McGraw-Hill, 1981), 430.
¹² Webster v. Reproductive Health Services (1989) in United States Law Week 57 (July 1989):5040.
¹³ For a defense of this view, see Richard Werner, "Abortion: The Ontological and Moral Status of the Unborn," Social Policy and Practice 3 (1974):201-22.
¹⁴ See Joel Feinberg, "Grounds For Coercion," in Ethical Theory and Social Issues, ed. David Theo Goldberg (New York: Holt, Rinehart, and Winston, 1989), 307-15.
¹⁵ Ray, 240.
¹⁶ Peter Kreeft, "Human Personhood Begins at Conception," in Journal of Biblical Ethics in Medicine 4 (Winter 1990):11.
¹⁷ Michael Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983).
¹⁸ Mary Anne warren, "On the Moral and Legal status of Abortion," in Biomedical Ethics, 417-23.
¹⁹ James Rachels, The End of Life (Oxford: Oxford University Press, 1986). For a critical analysis of this book, see J. P. Moreland's review in The Thomist 53 (Oct. 1989):714-22.
²⁰ Virginia Ramey Mollenkott, "Reproducive Choice: Basic to Justice for Women," Christian Scholar's Review 17 (March 1988):286-93.
²¹ See Tooley.
²² Mollenkott, 291.
²³ Tooley, 167. In rebuttal, see David Clark, "An Evaluation of the Quality of Life Argument for Infanticide," Simon Greenleaf Law Review 5 (1985-86):104-8; and Richard A. McCormick, S.J., How Brave a New World? Dilemmas in Bioethics (Washington, DC: Georgetown University Press, 1981), 157-59.
²⁴ English, 429.
²⁵ Ibid., 430.
²⁶ Some philosophers, such as Tooley (Abortion & Infanticide), "bite the bullet" and say that infanticide is not a form of murder since the newborn is not a person.
²⁷ John Jefferson Davis, Abortion and the Christian (Phillipsburg, NJ: Presbyterian and Reformed Publishing Co., 1984), 57.
²⁸ Ray, 240-41.
²⁹ Daniel Callahan, Abortion: Law, Choice, and Morality (New York: Macmillan, 1970); and Robert Wennberg, Life in the Balance: Exploring the Abortion Controversy (Grand Rapids, MI: Williams B. Eerdmans Publishing Co., 1985).
³⁰ Philip Devine, The Ethics of Homicide (Ithaca, NY: Cornell University Press, 1979); Robert E. Joyce, "Personhood and the Conception Event," The New Scholasticism 52 (Winter 1978):104-9; J. P. Moreland and Norman L. Geisler, The Life and Death Debate: Moral Issues of Our Time (Westport, CT: Praeger Books, 1990), 31-34.
³¹ See Moreland and Geisler, The Life and Death Debate; and Francis J. Beckwith and Norman L. Geisler, Matters of Life and Death: Calm Answers to Tough Questions about Abortion and Euthanasia (Grand Rapids: Baker Book House, 1991), part 2.
³² See my "A Critical Appraisal of the Theological Arguments for Abortion Rights," Bibliotheca Sacra (July/September 1991).
³³ Judith Jarvis Thomson, for example, argues that abortion is morally justified even if the unborn are fully human. I critique this argument in "Personal Bodily Rights, Abortion, and Unplugging the Violinist: A Critical Analysis," International Philosophical Quarterly (March 1992) (forthcoming).
³⁴ Justice Harry Blackmun, in "The 1973 Supreme Court Decisions on State Abortion Laws: Excerpts from Opinion in Roe v. Wade," in The Problem of Abortion, 2d ed., ed. Joel Feinberg (Belmont, CA: Wadsworth, 1984), 195.