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Bioethics and Medical Ethics

Permitting Abortion and Prohibiting Prenatal Harm: Reconciling the Contradiction

Peg Tittle
agt@einstein.unipissing.ca

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ABSTRACT: I argue that there are four solutions to the apparent contradiction of permitting abortion while prohibiting prenatal harm: there are other grounds both for condoning abortion and condemning prenatal harm which are not contradictory; there is a continuum of personhood or body; there is a continuum of rights; one can distinguish between the potentially born and the preborn on the sole basis of the woman’s intent to carry the fetus to term and give it birth. The fourth solution enables a consequentialist approach to assessing abortion and prenatal harm, such that permitting the former while prohibiting the latter is not contradictory.

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Introduction

There is a basic contradiction involved in permitting abortion while at the same time prohibiting prenatal harm. (1) This contradiction can be stated in personhood terms and in terms of the woman's rights. I'd like to elucidate that contradiction and examine three solutions which rise out of current literature; I'd like then to propose a somewhat new, fourth solution.

The Contradiction

Stated in terms of personhood, the contradiction is this: abortion is permitted or condoned because the fetus (2) is not a person, but prenatal harm is prohibited or condemned because the fetus is a person. (3) Obviously one can't have it both ways — either the fetus is or is not a person.

Stated in terms of the woman's rights, the contradiction is this: abortion is permitted or condoned because the woman has the right to control her own body, (4) but prenatal harm is prohibited or condemned because the woman doesn't have the right to control her own body. Again, one can't have it both ways — either the woman does or does not have the right to control her own body.

1. The 'Other Grounds' Solution

One solution to the personhood version of the contradiction is to argue for the permissibility of abortion on grounds other than personhood. Arguments to personhood are usually a subset of arguments to rights: one argues for personhood in order to argue for the right to life. Eliminating this intermediary step and focusing directly on rights — and then not necessarily only on the right to life — provides such other grounds. When rights conflict, it is sometimes permissible to kill persons, most notably in cases of self-defence. Thus, granting personhood to the fetus need not preclude permitting abortion. (Alternatively, not granting personhood does not necessarily entail permitting abortion: the fetus may not be a person but may still have certain rights, not the least of which may be the right not to be killed.) Both Thomson (5) and English (6) develop such arguments for (and against) abortion which are rights-based and independent of personhood.

One can also argue against prenatal harm on grounds other than personhood. The fetus may not be a person and still it may be unacceptable to cause it harm; the arguments of animal rights advocates such as Regan (7) and Singer (8) may be applicable in this case. (Alternatively, the fetus may be a person and still it may be acceptable to cause it harm; surgeons do this every day. (9) )

The woman's rights version of the contradiction can also be solved by appeals to other grounds. There are grounds other than the right to control one's body that justify abortion. For example, abortion could be permitted because the fetus is not developing 'correctly' and/or its development and birth will likely kill the woman.

And prenatal harm can be prohibited even if one does have the right to control one's body. After all, non-pregnant women presumably with the right to control their bodies are not permitted to cause postnatal harm.

In both cases, resorting to other grounds solves, or rather, dissolves, the contradiction by eliminating the need to make the determinations which create the contradiction — specifically whether or not the fetus is a person and whether or not the woman has the right to control her own body. These determinations are simply unnecessary; one can argue for abortion and against prenatal harm without them.

While this solution is not insignificant, and indeed may be preferable to the others in this paper, I shall not argue further for it as this has already been done quite capably by others.

2. The 'Continuum of Personhood' Solution

The personhood version of the contradiction, as initially presented, entails the assumption that personhood is an 'all or nothing' attribute, and this may, in fact, be wrong-headed. It may be more reasonable, more reflective of our reality, to consider the many possible criteria — human genetic material, brainwaves, heartbeat, quickening, sentience, viability, social visibility, ability to communicate, self-motivated activity, capacity for rational thought, consciousness, interests of one's own, etc. — and establish some sort of continuum of personhood.

Recalling that personhood is established in order to establish rights, one can then 'assign' fewer rights to 'lesser persons.' (10) The acceptability of aborting a being with minimal personhood would not then contradict the unacceptability of harming a being with considerably more personhood.

This 'continuum of personhood' can be transposed to a 'continuum of body' in order to solve the woman's rights version of the contradiction. What I mean by 'continuum of the body' is that while the woman does have the right to control her body, what is considered 'her body' changes through the pregnancy parallel to the changes in the personhood of the zygote/embryo/ fetus: the less it is a person, the more it is her body; the more it is a person, the less it is her body. Thus aborting when 'her body' is very much her body may be acceptable whereas harming when it is not may not be.

The main weakness of this solution is that fixing the points on the continua is not easy and distinctions may be arbitrary and fuzzy.

3. The 'Continuum of Rights' Solution

In our society, not all persons have the same, or even equal, rights. An institutionalized person (whether in a hospital or prison) doesn't have the same rights as an non-institutionalized person. More relevantly, a two-year old infant doesn't have the same rights as a twenty-year old adult. As Callahan and Knight (11) and Mathieu (12) point out, many rights are attached to age in a rather arbitrary fashion because the development of abilities is continuous rather than discrete. So while a fifteen-and-three-quarters-year old might argue that she is just as mature as her sixteen-year old friend and therefore should have just as much a right to get a beginner driver's licence, a six-year old could not make the same argument.

With similar arbitrariness — and with similar justification because the continuousness of development demands such arbitrariness — we could argue that an eight-month old fetus person doesn't have the same rights as a one-month old infant person, and that a one-week old zygote person doesn't have the same rights as the eight-month old fetus person. (In effect, this solution mirrors the previous one, because of the connection between personhood and rights.)

The two important rights that concern us in this paper, the right to life (or the right not to be killed) and the right not to be harmed, can be placed on the continuum such that, for example, only old fetus persons (and not young fetus persons, embryo persons, or zygote persons) have both the right to life and the right not to be harmed. Or we could say that all persons have the right not to be harmed but only fetus persons have the right to life. Thus one could condone (certain) abortion and condemn (certain) prenatal harm without contradiction (depending on where the lines are drawn).

This solution is also available for the woman's rights version of the contradiction. The right to control one's own body is not an 'all or nothing' right: there is a continuum — not everything one does with one's body is legal or morally acceptable. For example, it's generally illegal, as well as immoral, for people to use their bodies to break other people's legs. It could be similarly illegal, and/or immoral, for women to use their bodies in such a way as to cause harm to a fetus, but not illegal, or immoral, to cause death to a zygote.

This solution shares the weakness of the preceding solution, that of arbitrary and fuzzy distinctions.

4. The 'Potential Person/Future Person: Potentially Born/ Preborn' Solution

The notion of 'potential person' figures prominently in the discussion about abortion. To some, it is the notion that a fetus is a potential person that justifies an anti-abortion stance. To others, potential persons have only potential rights. (13) The notion of 'future persons' is prominent in environmental ethics, though discussion tends toward 'duties toward' rather than 'rights of.'

Adding the notions of 'actual persons' and 'conventional persons,' Callahan and Knight make the following four-tiered distinction. Actual persons are human beings with those characteristics such as "a concept of oneself as an ongoing being with at least some kinds of plans and stakes" (14) that compel us to recognize strong moral rights; full emergence of these characteristics occurs long after birth. Conventional persons are human beings that are not yet actual persons but that have been born. Potential persons are defined thus: "A prenatal human being is a potential person when it is the case that (1) it has the capacities to develop the kinds of characteristics that are relevant to compelling a recognition of a being as an actual person and (2) if its life were supported, it would be born, gaining conventional entry into the set of persons at birth". (15) And future persons are defined thus: "A prenatal human being is a future person if (1) it is a potential person and (2) it will, in fact, gain conventional entry into the class of persons through birth". (16)

I accept Callahan and Knight's definitions of a potential person and a future person but I want to emphasize, indeed specify, that it is the woman who decides whether or not a prenatal human being will, in fact, 'gain such entry.' That is to say, the single determinant differentiating between potential and future persons is the woman's intent: if she intends to carry the being to term and give it birth, then it shall be deemed a future person; if she does not intend to carry it to term and give it birth, it shall be deemed a potential person. To underscore the intent to bear as the difference, and to eliminate the impression that a potential person is indeed some kind of person, I will henceforth refer to potential persons and future persons as, respectively, the 'potentially born' and the 'preborn.'

While not making the same distinction between the potentially born and the preborn, both Mathieu and Nolan support the intention to give birth as the dividing line for moral obligations: "Once a pregnant woman forgoes her right to have an abortion, then, it could be argued that her actions should be constrained by considerations of the welfare of the child that the fetus will become. . . . It follows that a pregnant woman incurs these moral obligations to her future child only if she intends to carry the fetus to term" (17) (my emphasis); ". . . a pregnancy which is expected to result in delivery of a child generates moral obligations based on the consequences to that child of actions and events that occurred during the prenatal period" (my emphasis). (18) Thus, rather than, as Keyserlingk says, the unborn's 'rights' ending when the mother decides to have an abortion, (19) such 'rights' would begin when she decides to carry it and give it birth. And it is the woman's intent that is important, not that of the sperm source nor society, because only her resources sustain (or not) its development.

Putting intent 'front and centre' is, of course, not new to ethical theory. Usually, however, intent plays a role directly between the agent and the action:

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In order to determine an action's rightness/wrongness, one asks whether or not the agent intended to perform the action. For example, did she or did she not intend to abort? In this case, however, intent plays a role between the agent and the recipient of the action:

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In order to determine the action's rightness/wrongness, one asks what the agent intended the recipient to be: did she or did she not intend the recipient of the action to be born?

There is no precedent for this approach since the status of the recipient is typically independent of the agent's intent. Suppose, however, that a company's benefits plan extended to the fiancÚs as well as the husbands of its female employees, and suppose a certain Jane Smith filed for, collected, and gave money to a certain John Doe for eyeglasses: whether or not Jane intended to marry John would determine whether or not her action was fraudulent. That is, as with the position proposed in this paper, the agent's intent toward the recipient determines the rightness/wrongness of the action.

A common objection to putting so much weight on the woman's intent has been that "many women carry fetuses to term without ever forming the intent to do so," (20) that "particularly in the early states of pregnancy, many have a preborn inside of them one day and a potentially born inside of them the next". (21) I do not argue with that description of social reality, but I claim that such behaviour is irresponsible. We discuss in great detail the matter of ending life: active, passive, voluntary, coerced, premeditated, accidental, negligent. . . . But about beginning life, we are horrendously silent, irresponsibly laissez-faire. Non-intentional, accidental creation of life should be just as criminal as non-intentional, accidental destruction of life. Perhaps we need to declare a new crime — negligent gestation. (22)

What is significant about the potentially born/preborn distinction is not that it creates new categories of beings to which we can then assign rights or obligations. This would simply repeat the difficulty of the personhood version of the contradiction and add the difficulty of the woman's rights version.

Rather, what is important is that the woman's intent determines, with as much certainty as is possible, whether or not the fetus will have future interests and therefore does have present interests, developmental in nature. A consequentialist approach is then appropriate, indeed sufficient, for determining the rightness/wrongness of both prenatal 'harm' and abortion: if the consequence negatively bears on the fetus' interests, i.e., is harmful, then the action is wrong, arguably morally and legally reprehensible, and to be prohibited; if not, then it can be permitted.

There are four actions to be considered: prenatal harm to the potentially born, abortion of the potentially born, prenatal harm to the preborn, and abortion of the preborn. The first two would not be wrong because in both cases, there will not be some being who will at some future time suffer from the harm or loss; indeed, one can't properly speak of any consequences for the potentially born because there's no being for whom there are consequences. (23) The positive consequences to others involved, such as the woman who does not want a child, add to the judgement that no wrong has been done.

However, the last two would be deemed wrong because the consequences would be negative. In the case of prenatal harm to a preborn, if all goes as intended, there will be an infant, a child, an adult at some sort of disadvantage, who has interests that will have been detrimentally affected; (24) in the case of abortion of the preborn, if all had gone as intended, there would've been an actual and then a conventional person, who now has been deprived of life. (25) The negative consequences to others involved, such as the parents, increase the wrongdoing.

The contradiction of permitting abortion and prohibiting prenatal harm is thus solved: insofar as both aborting a potentially born and preventing prenatal harm to a preborn lead to good (or at the very least, fail to lead to bad), there is no contradiction in supporting both. One might ask, recalling the personhood version of the contradiction, whether or not the preborn (or the potentially born) is a person, but one doesn't need to. And as for the woman's rights version of the contradiction, the woman has full/usual rights over her body when the potentially born are involved, but she has restricted rights when the preborn are involved; such restrictions can be, I think, worked out according to a consequence-considering cost-benefit strategy.

Conclusion

Of the four solutions available to avoid the seeming contradiction, whether in terms of personhood or the woman's right to control her body, of permitting/condoning abortion while at the same prohibiting/condemning prenatal harm, the first, that of other grounds, is strong and well-argued by others.

The second and third solution, a continuum of personhood/body and a continuum of rights, share the difficulty of arbitrary and fuzzy distinctions.

The fourth solution, distinguishing between the potentially born and the preborn on the basis of the woman's intent and then measuring consequences according to the interests involved (thus reconciling permitting abortion while prohibiting prenatal harm), has the advantage of eliminating such arbitrary and fuzzy lines: intent can be discrete, (26) unlike the development from zygote to embryo to fetus to infant to child to adult. Also to its credit are the central positions given to intent and consequence.

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Notes

(1) With respect to prenatal harm, I include both the use of drugs (which can cause harm) and the refusal of fetal therapies (which can prevent prenatal harm).

Use during pregnancy of illegal drugs (such as crack cocaine and heroin) as well as legal drugs (such as alcohol and nicotine) can cause, in the newborn, vomiting, inability to sleep, reluctance to feed, diarrhoea leading to shock and death, severe anaemia, excruciating pain, growth retardation, mental retardation, central nervous system abnormalities, and malformations of the kidneys, intestines, head and spinal cord (Madam Justice Proudfoot, "Judgement Respecting Female Infant 'D.J.'," in Contemporary Moral Issues, edited by Wesley Cragg (Toronto: McGraw-Hill Ryerson, 1992), pp.57-59, p.58; Deborah Mathieu, Preventing Prenatal Harm: Should the State Intervene? (Dordrecht: Kluwer, 1991), p.5).

Refusal of fetal therapy techniques (such as surgery, blood infusions, and vitamin regimens) can result in respiratory distress, and various genetic disorders and defects such as spina bifida and hydrocephalus (Mathieu, p.5).

For a brief description of prenatal hazards and adverse effects of illicit drugs, tobacco, carbon monoxide, lead, alcohol, genetic conditions, infectious diseases, low birth weights, and treatment refusals, see Kathleen Nolan, "Protecting Fetuses from Prenatal Hazards: Whose Crimes? What Punishment?," Criminal Justice Ethics 9/1 (1990):13-23, p.14-15. See also Mathieu (p.5-9) for a similar discussion.

A discussion of the difference between 'crimes of commission' (such as the taking of drugs) and 'crimes of omission' (such as the refusal of treatments) is beyond the scope of this paper. See James Rachels, "Active and Passive Euthanasia," in Ethics: Theory and Contemporary Issues, edited by Barbara MacKinnon (Belmont: Wadsworth, 1995), pp.123-127; Thomas D. Sullivan, "Active and Passive Euthanasia: An Impertinent Distinction?," in Social and Personal Ethics, edited by William H. Shaw (Belmont: Wadsworth, 1996), pp.107-111; Philippa Foot, "Euthanasia," in Moral Issues, edited by Jan Narveson (Toronto: Oxford, 1983), pp. 7-28; Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984) and others for such a discussion.

(2) I'll use the term 'fetus' to refer to fetuses, embryos, and zygotes.

(3) Those who argue that it is a person include John T. Noonan ("The Immorality of Abortion," in The Morality of Abortion: Legal and Historical Perspectives, by John T. Noonan, Jr. (Cambridge, Mass: Harvard University Press, 1970) reprinted in Ethics for Modern Life, edited by Raziel Abelson and Marie-Louise Friquegnon (New York: St. Martin's Press, 1995), pp.219-224) who says it was conceived by human beings and therefore has a human genetic code and the potential for rational thought; L. W. Sumner ("Abortion," in Health Care Ethics: An Introduction, edited by Donald VanDeVeer and Tom Regan (Philadelphia: Temple University Press, 1987) reprinted in Ethics: Theory and Contemporary Issues, edited by Barbara MacKinnon (Belmont: Wadsworth, 1995), pp.176-184), who says it is, at least after a certain point some time in the second trimester, sentient; and Baruch Brody ("Opposition to Abortion: A Human Rights Approach," in Morality and Moral Controversies, edited by John Arthur (New Jersey: Prentice Hall, 1996), pp.196-204) who says it has, at some point between the sixth and twelfth week, a brain susceptible of function.

Those who argue that it is not a person include Mary Anne Warren ("The Right to Abortion," The Monist (1973) reprinted in Ethics for Modern Life, edited by Raziel Abelson and Marie-Louise Friquegnon (New York: St. Martin's Press, 1995), pp.225-239) who says it has neither consciousness, a developed capacity for reasoning, self-motivated activity, the capacity to communicate, nor the presence of self-concepts and Michael Tooley ("In Defense of Abortion and Infanticide," in Moral Issues, edited by Jan Narveson (Toronto: Oxford, 1983), pp.215-233) who says it has neither a concept of a continuous self nor particular interests.

(4) This may be taken to include the right to privacy, the right to self-determination, etc.

(5) Judith Jarvis Thomson, "A Defense of Abortion," Philosophy & Public Affairs, 1/1 (Fall 1971), pp.47-66 reprinted in Ethics: Theory and Contemporary Issues, edited by Barbara MacKinnon (Belmont: Wadsworth, 1995), pp. 166-176.

(6) Jane English, "Abortion and the Concept of a Person," Canadian Journal of Philosophy, 5/5 (October 1975), pp.233-43 reprinted in Contemporary Moral Issues, edited by Wesley Cragg (Toronto: McGraw-Hill Ryerson, 1992), pp.75-82.

(7) Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983).

(8) Peter Singer, Animal Liberation (New York: A New York Review Book, distributed by Random House, 1975).

(9) Though one might argue the term: is it really 'harm' (or 'injury') to make the cut necessary for the surgery?

(10) While there is cause for concern about the impact of such an argument on 'disabled' people, I believe this slippery slope should and can be avoided.

(11) Joan C. Callahan and James W. Knight, "On Treating Prenatal Harm as Child Abuse," in Kindred Matters: Rethinking the Philosophy of the Family, edited by Diana Tietjens Meyers, Kenneth Kipnis, and Cornelius F. Murphy, Jr. (Ithaca: Cornell University Press, 1993), pp.143-170, p.146.

(12) Deborah Mathieu, Preventing Prenatal Harm: Should the State Intervene? (Dordrecht: Kluwer, 1991), p.18.

(13) Joel Feinberg, "A Question about Potentiality," in Moral Issues, edited by Jan Narveson (Toronto: Oxford, 1983), pp.234-238.

(14) Callahan and Knight, p.145.

(15) Ibid., p.152.

(16) Ibid., p.152.

(17) Mathieu, p.14.

(18) Kathleen Nolan, "Protecting Fetuses from Prenatal Hazards: Whose Crimes? What Punishment?" Criminal Justice Ethics 9/1 (1990), pp.13-23, p.16.

(19) Keyserlingk as paraphrased by Ian Gentles in "The Unborn Child in Civil and Criminal Law," in Contemporary Moral Issues, edited by Wesley Cragg (Toronto: McGraw-Hill Ryerson, 1992), pp.60-68, p.65.

(20) Anonymous referee for the Canadian Philosophical Association's 1997 conference.

(21) Carolyn McLeod. Commentary for the Canadian Philosophical Conference, 1997, p.4.

(22) And, to anticipate the objection that this would violate our right to reproduce, I'll say that merely having a capability does not entail the right to exercise that capability--we do not have a right to reproduce.

(23) If, however, the harm causes pain to the potentially born (whether it will become a preborn or an unborn), then there is wrongdoing. I leave it to medical science to determine when pain is experienceable and what would cause pain. Certainly a two-day-old potentially born would not experience pain; certainly an eight-month-old potentially born would. In any case, the application of this proposal would ideally require women to express their intent, and abort if their intent is not to carry to term, before sentience becomes an issue.

(24) However, there are consequences to the woman which must also be considered. Both the causes and the effects of prenatal harm are wide in range: from proper nutrition to risky surgery; from temporary tremors and irritability to severe pain and neurologic dysfunction. Perhaps, therefore, the best approach would be a sort of 'cost benefit' analysis. For example, eating a well-balanced diet is little to ask to ensure a healthy newborn, and giving up alcohol is 'worth' a newborn free of mental retardation. But staying in bed for nine months may be too much to ask just to ensure the birth is not a week premature, and giving up life-saving treatment may not be worth the possible life of even a healthy preborn.

(25) However, in this case, whether the agent is the woman or some third party seems to matter: when the death of the preborn is caused by the woman rather than by a third party, what it really amounts to is a change in intent, not a violation or deprivation of intent.

(26) More specifically, the expression of intent can be discrete. Examining whether or not said expression is sincere and voluntary is, admittedly, difficult, but that is beyond the scope of this paper. For this paper, I've assumed that it is (and that coerced expressions of intent not be considered valid).

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