Abortion, Persons, and the Fetus
From N. F. Gier, God, Reason, and the
Evangelicals
(University Press of America, 1987),
chapter 11.
Copyright held by author
In the rabbinic tradition…abortion remains a noncapital
crime at worst.
–David Feldman
The law does not provide that the act abortion pertains to
homicide,
for there cannot yet be said to be a live soul in a body that lacks
sensation….
–Augustine
The intellective soul [true person] is created by God
at the completion of man’s coming into being.
–Thomas Aquinas
Many modern philosophers and theologians return to St. Thomas’
view.
–Joseph F.Donceel, S. J.
To admit that the human fetus receives the intellectual soul
from the moment of its conception,when matter is in no way ready for it, sounds to me like a philosophical
absurdity. It is as absurd as to call a fertilized ovum a baby.
–Jacques Maritain
Many people believe that the Roman Catholic Church’s
opposition to abortion stems from its conviction that a new human person exists from the
first moment of conception…It is clear that this is not now, or has ever been, official
church teaching on the matter.
–James T. McCartney
The Scriptures are silent in defining when one becomes a
person.
—Evangelical John Pelt
[The fetus] should not be called an unborn baby or unborn
child ….It is certainly biological life, but life of a different order. We are not
talking about intentional and unjustified slaying of a human being. [The word
"murder"] should be dropped from the abortion issue….
–Bernard Nathanson
(of "The Silent Scream")
Many people have the impression that the Judeo-Christian
position on abortion has always been as conservative as the current prolife movement. In
his book Whatever Happened to the Human Race? Francis Schaeffer implies that
abortion was an unthinkable practice in Christian countries before the 20th Century. The
facts, however, are quite otherwise. In Christian England before the Norman conquest, the
legal powers of a father followed the Roman tradition. A father could sell his own
children as slaves if they were under seven years of age and he could lawfully kill any of
his children "who had not yet tasted food."(1) Infanticide was widely practiced
in all Christian countries until the 19th Century. The historian Lloyd de Mause quotes a
priest in 1527 who said that "the latrines resound with the cries of children who
have been plunged into them." (2) Criminal law of 17th Century France listed
conditions under which a father had the right to kill his own children; and English
midwives of the same period had to take an oath "not to destroy the child born of any
woman."(3)
Historian Joseph Kett sums up this premodern view of the
child: "Parents left their infants alone for long periods, seem to have been
indifferent to their welfare, could not remember their names, refused to attend funerals
of children under five, routinely farmed infants out for wet nursing, and argued in
divorce proceedings, not over which parent should have the infant, but over which could
send it packing." (4) We should remind ourselves that Kett is not talking about
pagans here but church-going Christians.
We shall see that for Catholics the killing of an
"unformed" fetus was not murder until a papal decree of 1869. Canon law on this
point was not changed until 1917. But today leading Catholic philosophers and theologians
disagree with this change. In Protestant countries the "forming" of the fetus
was called "quickening," and abortions were permissible until that time. Even
when stricter abortion laws went into effect in the 19th Century, very few cases of
abortion of formed fetuses were ever prosecuted. Indeed, infanticide continued to be
widely practiced, especially in the late 18th Century with the rise of the Industrial
Revolution.
We shall also see that the Bible, especially if the image
of God is the seat of personhood, cannot be used to support the current conservative
position. Indeed, the traditional definition of the image forces Christians into a
position much more permissive than current liberal views. We shall also demonstrate that
arguments against abortion based on "unacceptable risk" or
"potentiality" principles are untenable. It appears that, however poorly argued
the 1973 Supreme Court decision may have been, the justices were most likely correct in
implying that only the third trimester fetus can be said to have a serious moral right to
life. Finally, one could argue that the fetus does at least have the right not to suffer
unnecessary pain, and one could conclude that many abortion techniques must be banned if
they are used on sentient fetuses. Allowing sentience in this sense, however, would
then expand the moral community to include animals.
Furthermore, 91 percent of abortions in the U.S. are performed in the first
trimester before the fetus becomes sentient.(4a) Of the remaining abortions 9
percent are done in the second trimester and only 1 percent in the third.
ABORTION AND THE JUDEO-CHRISTIAN TRADITION
The ancient Jews were evidently liberal on the question of
abortion: the fetus was not a person until birth. The Jews followed the Stoics and Romans
who held that the fetus is a part of its mother; specifically, they believed that the
fetus was the mother’s "thigh" or "one of her limbs." Under rabbinic
law the fetus has no power of acquisition; gifts or transactions made on its behalf are
not binding; in short, the fetus has no judicial personality of its own. David Feldman
sums up: "In the rabbinic tradition, then, abortion remains a noncapital crime at
worst."(5) The Jewish tradition is unique in its stand about cases involving a threat
to the life of the mother. In such cases the fetus is guilty as a "pursuer"
under the negative commandment which demands that one may not "take pity on the life
of a pursuer."(6) In such cases a therapeutic abortion to save the life of the mother
is required rather than simply morally permitted as some modern thinkers believe.
In his book Death Before Birth Harold Brown gives
the mistaken impression that Catholics and Protestants have always believed that we are
persons from the moment of conception. This is simply not the case. Brown quotes from
early Christians that were in the minority on this question. Christian orthodoxy was
profoundly influenced by the first Greek translation of the Torah, done by Hellenistic
Jews living in Alexandria in the Third Century B.C.E. This first Greek Bible, called the
Septuagint and considered divinely inspired by some early church fathers, translates
Exodus 21:22 in such a way as to make a clear distinction between an "unformed"
fetus and one "formed." The moral implication of the verse is that the
accidental destruction of an unformed fetus was punishable by a fine, but any killing of a
formed fetus required "a life for a life."(7)
The Jewish Halakhic tradition has a more liberal view of this verse in Hebrew:
"Since the punishment is monetary rather than execution, the unborn fetus is no
considered a living person and feticide is not murder" (7a).
It is somewhat misleading to claim, as many Christian
commentators do, that it was Christians who first began to protect the rights of the
unborn. The pagan world did practice abortion and infanticide on a wide scale, but the
Pythagoreans were an important exception. Because they believed in reincarnation, they
thought that ensoulment occurred at conception. The theory of a truly eternal soul
(person), embodied in all reincarnation doctrines, would be the best metaphysical defense
of the conservative position on abortion. Some believe that the condemnation of abortion
in the Hippocratic oath was not due to Hippocrates himself but to his Pythagorean
disciples.(8) Some early Christians who condemned abortion from conception on, like
Tertullian, St. Basil, and Gregory of Nyssa, could have been influenced by Pythagorean
doctrine; since as we shall see, the biblical basis for such a view is vague and
problematic.
The great majority of Christian theologians followed the
Septuagint reading of Exodus 21:22 regarding the unformed and formed fetus. In his
commentary on Exodus, St. Augustine writes that "the great question about the soul is
not hastily decided by unargued and rash judgment; the law does not provide that the act
abortion pertains to homicide, for there cannot yet be said to be a live soul in a body
that lacks sensation when it is not formed in the flesh, and so not yet endowed with
sense." (9) In the Enchiridion Augustine observes that "unformed fetuses
are like seeds which have not fructified." (10) When Gratian brought together canon
law for the first time in 1140, Augustine’s view clearly prevailed: "Abortion was
homicide only when the fetus was formed."(11) This remained the canon law position on
abortion, with the exception of three years during the time of Sixtus V, until 1917.
In his comments on abortion Thomas Aquinas follows canon
law, but his theory of fetal development appears to imply a more liberal position.
Following Aristotle’s tripartite theory of the soul, Aquinas claims that the zygote at
conception has only a nutritive soul, which is later transformed into a sensitive (animal)
soul after forty days, but ninety days in the case of females. (Aristotle’s sexism was not
only offensive but bizarre: he also believed that females had one less tooth than males!)
For Aquinas the true person is not achieved until the sensitive soul is transformed into
the rational soul: "The intellective soul is created by God at the completion of
man’s coming into being. This soul is at one and the same time both a sensitive and
nutritive life-principle, the preceding forms having been dissolved."(12) By any
reading of his theory of fetal development, Aquinas must be considered a liberal on the
question of abortion.
Officially Western Christianity supported a doctrine of
"mediate" animation, i.e., the fetus was not formed into a true person or soul
until some time during pregnancy. The doctrine of "immediate animation"
gradually gained support in connection with the doctrine of Mary’s immaculate conception.
This doctrine assumed that Mary’s soul was perfect in every way from the very moment of
conception. A clear implication of this was that ordinary souls, even though not
immaculate, were also persons from conception.
In 1701 Clement XI made the immaculate conception a feast
of universal obligation in the church. (13) The pope who made the final push for immediate
animation was Pius IX, who finalized the doctrine of the immaculate conception in 1854 and
then in 1869 declared that all abortions were homicide and required excommunication. In
1917 canon law was finally changed so as to dissolve the traditional distinction between a
formed and unformed fetus. Other factors may have played a role in these significant
decisions. Lawrence Lader observes that Pius IX was distressed at the tremendous increase
in the use of contraceptives.(14) If ensoulment could be moved back to conception, then
these practices would constitute much worse offenses. There was a long standing Catholic
opinion that most abortions really stemmed from various "sins of sex."
Other scholars, primarily Catholic, emphasize the
discovery of the laws of genetics and other knowledge about human reproduction. It is
rather difficult to understand this alleged significance of the laws of genetics. Why
should scientific genetics so radically change one’s view of the soul? Actually, this
would be a relevant point only for those who do not believe in the soul, like behaviorists
and sociobiologists, who believe that all of our moral behavior can be explained in terms
of genetic determinism. One would expect a Christian view of the person to be radically
different from this.
Scientific materialists deliberately collapse the
distinction between personhood and human species, but it is of the utmost importance for
Christian theology to enforce this distinction. (Otherwise God or angels could not be
called persons.) For Christianity, biology is about the "dust," but morality and
religion deal with the spirit. Human beings are unique and valuable because they have
spiritual natures separate from their physical natures. Therefore, Christians cannot draw
on genetics as the primary basis for their doctrine of personal identity. Thomas Aquinas
saw this clearly when he declared that the rational soul was not produced by human seed
but by a direct act of God. The "genetic" argument is not only a poor
reductionistic argument, but it is also a theological disaster for those Christians who
use it.
Popular understanding would have us believe that modern
Catholic philosophers and theologians have convinced their superiors that this genetic
argument, or some other which supports personhood at conception, should be church
doctrine. This is simply not the case. Jesuit John Connery states that "while it is
true that the church today penalizes abortion at any stage, it would be wrong to conclude
from this that it teaches immediate animation or infusion of a rational soul in the fetus.
This it has never done."(15) James J. McCartney concurs: "Many people believe
that the Roman Catholic Church’s opposition to abortion stems from its conviction that a
new human person exists from the first moment of conception…It is clear that this is not
now, or ever has been, official Church teaching on the matter."(16) In a seminal
article "Immediate Animation and Delayed Hominization," Jesuit Joseph F. Donceel
argues that insofar as the church has affirmed Aquinas’ hylomorphic theory of the
development of the self, it must give up the concept of immediate animation in favor of
"delayed hominization."(17) Donceel and many other Catholic philosophers and
theologians now contend that the fetus is not a person until it has a rational soul.
Let us conclude this section on the history of abortion
with some comments on English common law that began with Henry de Bracton (d. 1268). Up
until Bracton the Anglo-Saxons considered abortion solely an ecclesiastical offense.
Bracton was the first Englishman to place abortion under civil law, but again only if the
fetus was formed and animated. The term "quickening" was introduced into the
English language as a term for the animation or formation of the fetus.
During the 17th Century quickening as a cut-off point was
abandoned in favor of birth. The following is Sir Edward Coke’s description of English law
in the mid-17th Century: "If a woman be quick with childe, and by a potion or
otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her
body, and she is delivered of a dead childe, this is a great misprison, and no murder; but
if the childe be borne alive and dyeth of the potion, battery, or other cause, this is
murder; for in law it is accounted a reasonable creature, in rerum natura, when it
is born alive." (18)
Under the influence of Sir William Blackstone (1732-80),
the criterion of quickening returned as the accepted standard, was incorporated in early
U.S. law, and remained in some state statutes until the Supreme Court decision of 1973. On
the question of personhood, however, H. Tristam Engelhardt, maintains that "legal
personhood in American law is achieved only at birth."(19)
Personhood and the Image of God
With their emphasis on biblical theology evangelical
theologians feel no obligation to follow tradition or historical precedent on any issue.
Evangelical Harold Brown indirectly criticizes the traditional Jewish position by claiming
that basing a doctrine of soul on Genesis 2:7 is an "argument…seldom used by people
who take Scripture seriously."(20) Surely Brown is pretentious to claim that rabbis
for centuries have not taken their Torah seriously.
Evangelicals offer counter-arguments to liberal Christian
views by appealing to various biblical passages. Two in particular appear to imply not
only ensoulment in the womb, but even before conception. "Before I formed you in the
womb, I knew you, and before you were born, I consecrated you" (Jer. 1:5). "Thou
knowest me right well; my frame was not hidden from thee when I was being made in secret,
intricately wrought in the depths of the earth. Thy eyes beheld my unformed substance (golem);
in thy book were written, every one of them, the days that were formed for me" (Ps.
139: 15-16).
These are interesting passages but difficult to interpret.
They also contain both logical problems and implications that a great majority of
Christians would not want to accept. Orthodox Christianity has rejected the idea of the
preexistence of the soul implied in both of these verses; and it is difficult to conceive
of how even a divine mind could know something before it exists or know it as a possible
existent. The passage from the Psalms maintains that the soul is formed in "the
depths of the earth," which is a poetic phrase for Sheol, the Hebrew Hell from which
all souls come and to which all souls return.(21) No orthodox Christian would want to
accept this old Hebrew version of the creation of souls.
More significant is that the text of Psalm 139 may be
corrupt, i.e., the words have been mixed up by scribes. Mitchell Dahood is convinced that
the word golem was probably not in the original hymn. This is the only place in the
Hebrew Bible where this word is used, so Dahood believes that the Hebrew syllables need to
be "repointed" (for vowels) to read gilay-mi ("life
stages").(22) If Dahood is correct, then the need to speculate about embryology is
dramatically reduced. Dahood’s Anchor Bible translation of these lines is the following:
"My soul itself you have known of old, my bones were never hidden from you, since I
was nipped off in the Secret Place [Sheol], kneaded in the depths of the nether world.
Your eyes beheld my life stages, upon your scroll all of them were inscribed; my days were
shaped when I was not yet seen by them."
In the Jewish tradition golem was not taken as a
person at all; indeed, it was viewed as a being without a soul. In the Middle Ages a
legend arose about an giant called a Golem that two Czech rabbis made out of river clay.
They were presumably able to make the huge body live by reciting Kabbalistic
chants over it. Jews in the Prague ghetto were able to protect themselves
by having the Golem fight against Christians who attacked the ghetto on a
regular basis. There was also the early silent film The
Golem that stars a soulless monster bent on destruction. It is
obvious that the
Jewish meaning of golem is not compatible with the traditional definition of a
person.
Harold Brown offers another reason why the creation
account in Genesis 2:7 should not be used as a guide on this issue: it applies only to the
creation of Adam. Adam’s creation was unique because he was not conceived and borne in a
womb. Therefore the criterion of God’s infusion of the divine breath cannot be used as a
criterion for personhood. Rather, the criterion is that God creates every human in the
"image of God" (Gen. 1:26) and this special creation makes every human being a
person.
One of the first problems with this argument for the
abortion issue is that the Bible does not tell us when the imago dei is infused. As
evangelical Paul Jewett states: "There is nothing in scripture bearing directly on
the question of the participation of the fetus in the divine image."(23) The Jewish
tradition maintains that birth is the time of infusion, and even C. F. Keil and F.
Delitzsch, scholars highly respected by conservative Christians, reject Brown’s
distinction between the creations of Genesis 1:26 and 2:7 and implicitly support this
Jewish view: "Man is the image of God by virtue of his spiritual nature, of the
breath of God, by which his being, formed from the dust of the earth, became a living
soul."(24)
Another difficulty with the imago dei argument is
that in the New Testament the phrase (with only two exceptions) is used exclusively for
Jesus Christ. Although Paul states that the man "is the image and glory of God"
(1 Cor. 11:7), he must mean that this is man in Christ. Paul’s sexism also complicates
matters here: "[Man] is the image and glory of God; but woman is the glory of
man" (1 Cor. 11:7). Does this mean that women are not full persons? (25) In 1 Cor.
15:42-50 Paul makes his theological anthropology clear: Only one human, Jesus Christ, was
created in the image of God and all others were born in "the image of the man of
dust." Only after we are Christians (or more properly, only in our resurrected
bodies) will we "bear the image of the man of heaven."
The evangelical New Bible Dictionary supports this
Christocentric interpretation of the image of God: "Man must be still regarded as in
the image of God, not because of what he is in himself, but because of what Christ is for
him, and because of what he is in Christ…In Christ, by faith, man finds himself being
changed into the likeness of God…In "putting on" this image by faith, he must
now "put off the old nature," which seems to imply a further renunciation of the
idea that the image of God can be thought of as something inherent in the natural
man…."(26)
Although agreeing with this basic point about the New
Testament imago dei, the author of this article, R. S. Wallace, goes on to
contradict himself in his attempt to harmonize Paul and the Hebrew Bible Testament. If we
put on the image of God by faith, then Wallace cannot talk about us being created in the
image of God. Nor can he speak of this created image being "marred" and then
through Christ reaching "full conformity to His image." Either the image of God
is innate and natural to man through creation, or it is not natural and is given by virtue
of our humble faith as mortals, born as we are in "the image of the man of dust"
rather than in "the image of the man of heaven." If the imago dei resides
only in Christ, then no non-Christian can be a person in this sense. No theologian would
want to build a theory of personhood on such a discriminatory basis.
Finally, new archeological evidence from an Assyrain
inscription at Tell-Fekheriyeh indicates that all traditional interpretations of the image
of God may be incorrect. The inscription includes a translation in Aramaic, a language
very close to Hebrew and probably Jesus’ mother tongue. The Aramaic equivalents of
the "image" and "likeness" of God are found in this text and the
meaning is that Assyrian king rules with God’s authority on earth. This meaning fits
very nicely with Adam having dominion over the animals and the New Adam having redemptive
dominion over the universe. But this is an exclusively political meaning of "image of
God," and cannot be used any discussion about human nature. (26a)
We have seen that Clark, Nash, and Henry contend that
reason has priority in the image of God, but a broader notion of "significant mental
life" may be preferred. James Sire, editor of Intervarsity Press and a professor at
Trinity Evangelical Divinity School, maintains that the image of God means "that,
like God, man has personality, self-transcendence, intelligence…morality (capacity for
recognizing and understanding good and evil), gregariousness or social capacity…and
creativity." (27) Paul Jewett of conservative Fuller Theological Seminary states that
the image of God "defines a man as a man, a person, an individual that is free and
self-conscious, and a rational, moral, and religious agent and one that is aware of an
‘I-Thou’ relationship to his Creator." (28)
Sire and Jewett are to be commended for emphasizing the
sociability criterion, one which will also be important for the definition of a person in
the section after next. But the implication for the abortion debate is clear: the
evangelicals’ own definition of the imago dei excludes the fetus as a person.
Indeed, without Roland Puccetti’s distinction between a "beginning" and
"actual" person, their criteria would definitely disallow infants as persons.
Furthermore, Sire’s strict moral standards would eliminate personhood for minors and the
mentally retarded; and his creativity criterion, depending on what he means by it, could
exclude a great many deserving people from the realm of persons.
CUT-OFF POINTS IN FETAL DEVELOPMENT
From the side discussion on biblical issues, we again we
see the futility of appealing to the authority of religion and all the problems that this
involves. As it is clear that outside philosophical speculation has played a profound role
in interpreting the image of God, we might as well rely on our own analysis for defining a
person. Various points during fetal development have been suggested as significant stages
at which simple biology gives way to full personhood. The Supreme Court decision of 1973
chose viability; today’s conservative Christians and Jews insist on conception; and as we
have seen above, historical Christianity chose animation in the womb, while historical
Judaism opted for birth. Let us analyze each of these points in turn for their
philosophical merit.
All higher animal life begins at conception, so no moral
significance can be given an event common to all mammals. Nevertheless, John T. Noonan
argues the following: considering the fact that there are 200 million spermatozoa in a
single ejaculate and that there are between 100,000 to a million oocytes in a female
infant, Noonan argues that nature (God) is trying to tell us something morally significant
about the relative worth of a zygote, which develops successfully into a new being 80
percent of the time, as opposed to the thousands of eggs and billions of sperms that are
simply wasted in a normal lifetime.(29)
Noonan does not give a reference for his claim for the 80
percent success rate, but the rate appears to be drawn from studies done on spontaneous
abortion after implantation. Reproductive physiologists suspect that there is a much
larger failure rate before implantation (perhaps over 60 percent), but there is no way of
testing this precisely. Whatever the rate is, Noonan has failed to establish any moral
difference between humans and animals in this area. Facts are difficult to come by, but
some biologists have reported that Rhesus monkeys also have an 80 percent success rate
after implantation.
Noonan himself mentions the fact that there is the
possibility of twinning for twenty days after conception. He states that the probability
of this happening is very low, but he misses the significant philosophical implication
that twinning holds. If personhood begins at conception, then what happens to a single
person when there is twinning at twenty days? The absurd implications are clear. One Dutch
Catholic theologian explains: "This fact the possibility of twinning shows that
biologically speaking the fecundated ovum is not yet wholly individual. For, although its
hereditary virtualities are set, a cellular division may change it into more than one
individual….As long as such a possibility exists, the philosophical definition of
individual, which explains it as ‘undivided in itself,’…is not yet realized…."
(30) We must conclude that there is no morally relevant difference before or after
conception. Furthermore, the zygote definitely does not exhibit any of the characteristics
of a person. At most the zygote is a potential person and we shall discuss the
effectiveness of the so-called "potentiality" principle in the last section of
this chapter.
In human persons the brain is the physical basis for the
mental lives we pursue. At the end of four weeks the human embryo has a spinal cord and a
primitive brain with two lobes. Brain waves can be detected at this early stage and some
have proposed this as a morally significant cutoff point. This brain activity, however, is
no different from that of other animal fetuses, so there can be no morally relevant
difference at this stage.
After informing us that electrical activity, neural
connection, and the presence of neurotransmitters are required for sentient life,
biologist Clifford Grobstein describes the six-week-old embryo: "There is no
demonstrable electrical activity characteristic of the nervous system….Although a
rudiment…can be identified…none of the essential features for characteristic function
are there. The cells that make up the rudiment are still in rapid division and have not
yet become nerve cells. There are no characteristic connections among them.
Correspondingly, neurotransmitters have not yet appeared. If sentience depends upon any
aspect of neural function, it cannot possibly yet be present….If some aspect of self
does exist at this stage, it is equally likely to be present in all living cells and
organisms; it is not the kind of self that we experience so intimately and
vividly."(31) All of the preceding criteria, plus the development of the neo-cortex
are in place by the third trimester; and this does constitute a significant biological
fact with regard to personhood.
Prolife debaters sometimes show pictures of aborted
fetuses to prove that the eight-week-old fetus is a human being. Biologically, it is a
human being, but having human form is only incidental to being a person. God would not
have a human form, yet God would be a person if God existed. ETs would be persons but they
would not necessarily look like us. Besides, we could conceive of human beings without
arms, legs, ears, noses, and other bodily parts, but we would still have to consider them
persons. Indeed, the disembodied brain of science fiction would still be a person.
Furthermore, early ape fetuses looks very much like a human
ones, and modern dolls
have an amazing human likeness, but of course these things are not persons.
As we have seen, English and American laws have used the
criterion of quickening as a dividing line between legal and illegal abortions. But the
fact that fetuses have the ability to move about spontaneously in the womb cannot possibly
have any moral relevance. It would make most machines persons, but deny personhood to the
paralyzed human being. Animal fetuses move too, but they do not acquire special rights
because of this. The movements of a nine-week-old human embryo have been compared to the
flapping motion of the tail fin of a fish. By fourteen weeks fetal mobility has become
more graceful, but biologists like Grobstein are not sure if this is true sentient
responsiveness or something "not basically different from that commonly observed in
the young frog tadpoles that lie at the bottom of a dish and occasionally, for no apparent
reason, erupt into vigorous swimming movements…."(32)
Although there are certainly problems with the viability
criterion, this concept has been treated unfairly in the literature. Objections that fetal
transfers from one womb to another, now done in some animals, could be done in humans or
that artificial wombs and placentae will soon be available miss the point. These new
procedures would not change the fact that the fetus is still in a womb and still
completely dependent upon it. Furthermore, viability alone without significant brain
development would not be a sufficient condition for being a person. The argument that
fetuses are dependent in a significant way on other people until they are three or four
years old also misunderstands the concept of viability: even though the infant still needs
care, it is physically independent from its mother. Critics have misfocused on dependence
when the crux of the matter is separate existence. Siamese twins using the same vital
organs, people on kidney dialysis, and the disembodied brain of science fiction are all
dependent beings; but they are persons because they are independent centers of conscious
awareness with their own personal identity.
The main problem with the viability criterion is the fact
that it is based on an empirical variable: some fetuses (particularly African ones) are
viable before others. A second empirical test ought to be used to tighten up the concept
of viability. The concept of person requires not only physical independence in the world
but also a significant mental life. Neocortical brain waves commence at the beginning of
the third trimester, the period of viability stated in the Supreme Court decision and
verified by special medical commissions. By the sixteenth week the fetal brain has assumed
the structure and shape of the adult brain, including the growth of the cortex, a mantle
of nerve cells covering the cerebral hemispheres. Furthermore, the 100 billion neurons of
the adult brain have been formed in the fetal brain by the twentieth week.
Advanced brain research has shown, however, that
intelligence depends not so much on brain size or even the number of brain cells; rather,
the most important elements are the interconnection and complexity of these cells. The
catalysts for this development are the glial cells, which nourish the neurons and cause
the growth of a sheath of myelin around each neuron. Myelin works like an electrical
insulator and protects specialized neural activity from random interference. Myelination
increases rapidly between twenty-eight and thirty-two weeks. This explosive brain
development in the third trimester is a significant empirical factor. It represents the
time at which the mental life of the fetus would be qualitatively different from other
animals. Study the diagram below and notice that the brain cells on the left are not yet
connected and the neocortex has not developed its six layers.
If the image does not execute, type in www.class.uidaho.edu/ngier/fetalbrain.htm.
By observing rapid-eye movement in premature babies, it
has been discovered that fetuses spend a great part of their time (70-80 percent at 32
weeks) dreaming during this period. Brain scientists speculate that this increased brain
activity must reflect the rapid development of neural connections, although the number is
far short of the 10,000 which each adult brain cell has. In addition, the cortical layer
starts folding under itself to form the neocortex, which has six different layers in the
adult brain, and which plays an essential role in the distinct mental experiences of human
persons.
BEGINNING AND ACTUAL PERSONS
Throughout history most human beings have slowly but
surely learned to respect all living things, but it is only to persons that we grant a
serious moral right to life. For example, I respect the lives of wasps as long as they and
their nests are at a safe distance; but I have no compunction about killing them if they
make a home in my chimney and begin to attack me. Wasps obviously have no serious moral
right to life. Even though persons can sometimes be as annoying as wasps, we must treat
them very differently. Persons are the most valuable things in the cosmos. Without them
morality and ethics would be impossible. Philosopher H. T. Engelhardt says that what
Rolland Puccetti calls "actual" persons are "the moral agents of the
universe. They are the entities who are responsible for their actions and who are bearers
of both rights and duties."(33)
We can develop a definition of a person by analyzing the
way that we use the word. Believers call God a person and many of these same people would
also say that angels are persons. Those who are nonbelievers would certainly grant the
possibility of the existence of extraterrestrial persons. The basic premise of the movie
"ET" was that ET was a person and that all ETs, like the movie’s hero, would
have a serious moral right to life. What are the common features of these persons? First,
it is clear that a person must be an independent being. The ancient Hebrews, Romans, and
Hindus recognized this in their belief that the fetus was part of its mother. The Hindus
said that the "woman’s fetus is a limb of her own"; and the Hebrews and Romans
agreed that the fetus "be accounted as part of the mother’s belly."(34) Perhaps
the Supreme Court in 1973 was correct in emphasizing the viability of the fetus.
Second, persons have mental lives qualitatively different
from animals. Following Rolland Puccetti, one can distinguish between a
"beginning" person and an "actual" person. (35) As we have already
discussed, this mental life not only includes cognition, but also emotions, imagination,
and creativity. Beginning persons must have the basis for this mental life, but they do
not have to be responsible, self-determining beings. This means that beginning persons are
moral objects with rights, but they are not yet moral agents with duties. Actual persons
are moral subjects with rights, duties, and full responsibility for their acts. Human
beings become full persons at the age of majority, while God and angels would always be
actual persons.
Third, persons are social creatures. As we have seen,
growing consensus in philosophy, theology, and the social sciences maintains that
interaction with others is crucial for the development of personal identity. The persons
mentioned above could engage in social intercourse, not only with their own kind, but with
each other. (For example, in the Bible humans talk with God and angels and in science
fiction kids socialize with ET, and mixed musical groups and armies appear in Star Wars.)
Most of contemporary philosophy and psychology has turned away from the Cartesian-Kantian
isolated ego and has supported a dialogical view of personhood. The most eloquent
spokesman for this idea is Martin Buber, who in his famous book I and Thou said: "I
require a You to become; becoming I, I say You"; or "there is no I taken in
itself, but only the I of the primary word I-Thou…." (36) Only when a human being
learns to say "Thou" does he or she, according to Buber, become a person.
Engelhardt agrees: the fetus is not a "who" who can be addressed, because there
can be no true dialogue between it and the external world. Engelhardt believes that it
would be nonsense to ask people who they were or what they were doing before birth.(37)
God is obviously a person in terms of the preceding
discussion, but there is still an important qualification that must be made in terms of
God and personal relations. These we have of course with other human persons and could
have with extraterrestrial persons and angels if they exist. But God does not exist in the
same way that these persons exist. God’s omnipresence and essential hiddenness would make
our relation to the divine being very different from ordinary social intercourse with
finite persons. Contrary to biblical claims, it is impossible for any of us to see God
face to face; and God is not able to speak to us in words or communicate with us by
physical gestures. Some theologians say that the universe is God’s "body" so one
could say, by analogy only, that God communicates through the magnificent
"gestures" of nature.
These three factors–independence, significant mental
life, and sociability–now constitute the necessary conditions for being a person. (Note
that none of them in itself is a sufficient condition.) It is obvious that a strict
application of these criteria would mean that the fetus is not a person, and therefore
does not have a serious moral right to life. Such a view would be the same as the ancient
Hebrews who believed, as we have seen, that the fetus was not a person until birth. On the
basis of fetal brain physiology discussed above, it would be reasonable to propose that
the third trimester fetus be considered a "beginning person." Crucial brain
development comes at the same time that the fetus becomes viable and can in normal
circumstances live independently outside the mother’s womb. A fetus born at this time
would fulfill all the requirements of beginning personhood listed above. Birth as a
cut-off point essentially collapses into viability, because a viable fetus could
experience a successful birth at any time. Therefore, the third trimester fetus should be
treated as a moral object with a serious right to life.
Various criticisms can be raised against this position,
and in the space remaining, we will respond to them in turn. Applying the consciousness
criterion too strictly, some critics charge that sleeping people must forfeit their
personhood and that this is obviously absurd. But just as obvious is the fact that there
is no known brain impairment due to sleep. Furthermore, those individuals will awake to
continue a personal life which has already been established, naturally and legally, in the
world. The same goes for the senile and most of the mentally handicapped, who do not lose
consciousness or even most higher brain functions. Down’s syndrome, for example, does not
affect the structure of the brain, but seems only to lower the cerebral metabolic rate.
One Mongoloid child’s IQ was measured at 116, but most are below 50 with only 5 percent
below 20. Experts are now convinced that many more of these individuals are educable than
previously thought.
Even most severely retarded individuals have mental lives
older than third trimester fetuses. It is only brain-dead comatose humans like Karen Ann
Quinlan and severely defective infants like Baby Ashley (with 85 percent of her brain
missing), who do not meet the requirements for beginning persons. In these cases active
euthanasia should be morally permissible. As long as Quinlan’s brain was functioning
normally, she should have been kept alive; but when her brain atrophied to a third of
normal size, it was an insult to the dignity of the person she once was to allow her to
continue a life totally devoid of personal qualities. Using Puccetti’s categories, we can
say that Quinlan, once an "actual" person, became only a "former"
person. Quinlan’s case reveals a clear distinction between a person and a biological human
being; and it demonstrates that we can have human beings who are not persons (e.g.,
Quinlan) and persons who are not human beings (e.g., ET).
Others might respond that, according to my criteria, we
would have to recognize dolphins, whales, and chimpanzees as beginning persons. This
indeed is a possibility, but one so controversial that it is too early to make a firm
decision. Chimps and gorillas who have learned sign language and socialize with human
beings might be persons; but there are a growing number of experts, led by Herbert
Terrance of Columbia, who have disputed this. John Lilly claims that dolphins are far
superior to human beings: compared to the several-million-year evolution of the human
brain, the dolphin brain, with 40 percent more cortex than humans, has been around for 15
million years. Lilly even contends that dolphins are spiritual beings, but he is the only
person who holds this view. Nevertheless, we must leave open the possibility of
terrestrial persons, just as we must for extraterrestrials.
In this section we have argued that the straightforward
logic of persons cannot grant that the fetus is a person before the third trimester of its
development. What we have done is essentially support the Supreme Court decision of 1973,
which ruled that the mother’s right to privacy takes precedence over any other claims of
or for the fetus until the third trimester. This position differs from the Supreme Court’s
in one significant respect: the justices argued that there was no
consensus–philosophical, theological, or scientific–about when a fetus becomes a person.
We have shown that the good justices should not have been so hesitant on this matter.
The implications of this position for the contemporary
religious debate on abortion are also instructive. We have already seen that many Catholic
philosophers and theologians are returning to Aquinas’ view of delayed hominization, and
it is significant that they choose some of the same criteria as we do in determining
personhood. For example, Joseph Donceel states that "if form and matter are strictly
complementary, as hylomorphism holds, there can be an actual human soul only in a body
endowed with the organs required for the spiritual activities of man. We know that the
brain, and especially the cortex, are the main organs of those highest sense activities
without which no spiritual activity is possible."(38) One of the most distinguished
Catholic philosophers of the 20th Century, Jacques Maritain, has declared that "an
intellectual soul presupposes a brain, a nervous system, and a highly developed
sensitivo-motor psychism….To admit that the human fetus receives the intellectual soul
from the moment of its conception, when matter is in no way ready for it, sounds to me
like a philosophical absurdity. It is as absurd as to call a fertilized ovum a baby."
(39)
UNACCEPTABLE RISK AND THE POTENTIALITY PRINCIPLE (40)
John V. Wagner of Gonzaga University has presented a case
for the "unacceptable risk argument," one which has been used by some prolife
advocates. Wagner illustrates this principle with the proverbial story of the hunter
shooting at what he thinks is a deer in the bushes. The unacceptable risk principle simply
requires that a hunter with any moral sense will make absolutely sure that the creature in
the bush is not a cow or another person. Wagner then argues that since there is so much
controversy about when the fetus becomes a person, it is always an unacceptable moral
gamble to take the life of the fetus at any stage in its development. Furthermore, Wagner
argues that this formulation of the antiabortion argument shifts the burden of proof away
from the conservatives, who no longer have to prove that the fetus is definitely a person
from conception on, to the liberals, who now have to prove that the fetus is definitely
not a person. (41)
The main problem with Wagner’s argument is that he is
unnecessarily agnostic about the development of the fetus. Physiological knowledge about
the nature of the fetus is not analogous to the hunter guessing at what is moving in a
bush l00 yards away. Our knowledge of fetal development is incredibly detailed and it is
growing all the time. Wagner’s claim that there is no significant "metamorphic
change" in the development of the fetus can easily be challenged. We have argued that
the appearance of neocortical brain activity could certainly be called significant; and
this event coincides with the traditional definition of a person found in our European
tradition, including the theological tradition about the image of God. No one should have
any difficulty in assuming the burden of proof and that we now know enough about the fetus
to be confident that abortion, until the third trimester, is not an unacceptable moral
risk.
Although it is clear that conservatives fail in their
attempts to ascribe personhood to the conceptus, we must concede that the fetus from
conception on is a potential person. Aquinas was actually quite near the truth that human
fetuses are mere "sensitive" souls until late in pregnancy. As we have seen, the
neocortical brain development necessary for a beginning person commences in the third
trimester. Even though the fetus is only an animal until this time, it is significant that
the human fetus is the only animal which, as far as we know, develops into a person. They
are the only fetuses that are potential persons. To argue that it is morally wrong to take
the life of a potential person is to use what Michael Tooley calls the
"potentiality" principle. The arguments which Tooley and Engelhardt muster
against the potentiality principle may not be entirely convincing. (42) The principle does
fail, however, for other reasons.
Engelhardt contends that the use of the potentiality
principle involves a semantic confusion between future and present predicates, which would
then imply that ontologically a thing now has the qualities that it will have in the
future. As a result, Engelhardt says that "one loses the ability to distinguish
between the value of the future and the value of the present." (43) Some examples
show the absurdity of this interpretation of the potentiality principle. An associate
professor is a potential full professor and will be promoted only after completing
significant professional work. Using the potentiality principle, all associate professors
could argue that they are already entitled to the privileges and prestige of a full
professor. Similarly, resident aliens could argue that they need not go through with the
naturalization process because potential U.S. citizens have the same rights as actual
citizens.
Those who use the potentiality principle need not accept
this obviously absurd version of the principle. They could simply argue that the fetus as
a potential person, although it cannot claim the rights of a person (either
"beginning" or "actual"), it still has the right to develop its
potential as a person. After all, using the examples above, it would be wrong to deny the
junior professor or the alien the right to pursue their respective advancement in society.
Even with this more favorable interpretation of the potentiality principle, there is
something basically wrong with these examples used as analogues with the developing fetus.
Professional promotion and naturalization are not natural developments which happen as a
matter of course; rather, they are societal achievements which require initiative and
conscious choice. The fetus does not choose to be conceived and does not choose to become
a person.
The foregoing observation does not invalidate the
potentiality principle. One might hold that a potential which is not developed by
conscious choice has no moral significance. But this is clearly mistaken. A ten-year-old
child, who has the natural potential to become twenty years old, certainly has a
legitimate moral claim to the right to become twenty. It would surely be absurd to
maintain that one has to choose to be twenty in order to have the moral right to.
Therefore the fetus’ potential personhood is what William Hamrick calls a "real"
potential as opposed to the "theoretical" potential of becoming a full professor
or U.S. citizen.
There was, for example, nothing inevitable about my
becoming a philosophy professor, but it was inevitable under normal circumstances that my
natural potential to become a person was fulfilled. At my conception the genetic material
which guided my brain to eventually produce neocortical impulses was already there.
William Hamrick phrases it aptly: "The zygote is already potentially what it will
actually be as a mature infant. Its potentiality is real, not merely theoretical because,
although its morphology and capacity for experience are sketched only in outline, it is
nonetheless a real outline. This is not, as it may appear, a mere play on words. Rather,
it is to enforce the conclusion that, although there is in the zygote only a blueprint of
the finished structure, the blueprint has the singular peculiarity of being built into the
structure." (44)
The genetic procedures of cloning offer a better argument
against the potentiality principle. With the technology of cloning, every cell in a
person’s body is a potential person. The complete genetic material in each cell simply has
to be transplanted in a viable ovum and then placed in a womb. The cloning hypothesis is a
good example to show the confusion of genetic and personal identity which is found in many
conservative arguments against abortion. If we took the genetic material of 1000 cells
from one person’s body and transplanted it in 1000 ova in 1000 wombs, how many potential
persons would we have? Only one person according to the genetic-based arguments of many
conservatives. But this potential "person" would become 1000 different persons
according to current law and the definition of personhood outlined above.
A critic might reply that ordinary body cells do not
naturally clone themselves. Only when human germ cells come together as a fertilized egg
is there a natural development towards personhood. Body cells are therefore not potential
persons unless cloning is artificially introduced. The zygote is the only natural
potential person. There is, however, a flaw in this reasoning. The conservative, after
winning recognition for the moral significance of the conceptus’ potential personhood, has
now forgotten that some theoretical potentials also have moral relevance. Short of
extenuating circumstances, it would not have been right for the administration of the
University of Idaho to have denied my promotion to full professor, especially after five
productive years in rank. But as we have argued above, there was no natural potential at
my conception which would have resulted in this particular achievement in my life.
The theoretical potential of sperms and eggs to come
together to become zygotes or the theoretical potential of cloning body cells definitely
establishes these entities as potential persons. Experimentally induced parthenogenesis
has been successful with animals, and unlike cloning, it is more technically feasible in
human females. As this process requires a fairly simple biochemical stimulus, there is a
possibility that even some human females have given birth without need of the male gamete.
(45) If the potentiality principle is to be applied consistently, the life of ova and
sperm should be protected as carefully as the conceptus. This of course constitutes a reductio
ad absurdum argument against the potentiality principle.
At the beginning of this chapter we documented the lack of
concern that premodern peoples, including Christians, had for their children. It is a sad
irony that the first successful moves to protect children’s rights were made by English
reformers using laws for the humane treatment of animals as their legal precedent. Even
though conservatives have been unsuccessful in proving that the fetus, at least up until
the third trimester, is a person, it is still an animal with the rights that we grant to
higher mammals. For example, although we can kill a dog humanely, it is wrong to torture
it. It might be the case that some abortion techniques are indeed a form of torture and
they should be outlawed on that basis. This would be an issue only after the fetus has
become sentient, and this is not the case until at least the second trimester. As 91
percent of all abortions in the U.S. are done within the first three months, this
suggestion is not as radical as it might appear at first.
Chapter 11 of N. F. Gier’s God, Reason, and the Evangelicals
(Lanham, MD: University of America Press, 1987). Copyright held by author.
ENDNOTES
1. Quoted in Lee E. Teitelbaum and Leslie J. Harris, "Some Historical
Perspectives on Governmental Regulation of Children and Parents" In Beyond
Control: Status Offenders in the Juvenile Court, eds. Teitelbaum and Aidan Gough
(Cambridge, MA: Ballinger, 1977), p. 2
2. Quoted in Lamar Empey, American Delinquency: Its Meaning and
Construction (Homewood, IL: The Dorsey Press, 1978), p. 27.
3. Quoted in ibid.
4. Quoted in Charles Krauthammer, "What to do about Baby Doe?" The
New Republic (September 2, 1985), p. 20.
4a. The British Medical Journal
(April 15, 2006) published an article by a psychologist who argues that the
fetus up to 26 weeks does not have the neural capacity to feel pain. This
allows doctors to forego sedating fetuses for operations, a very risky
procedure.
5. David Feldman, Birth Control in Jewish Law (New York: New York
University Press, 1968), p. 255.
6. Feldman, pp. 275 ff. See also R. H. Feen’s article in William B. Bondeson,
et al., Abortion and the Status of the Fetus (Dordrecht: Reidel, 1983), p. 166.
7. Some of my critics object to the use of the Septuagint, because they claim
that it is a faulty translation. I am not an expert on these textual matters, but I can at
least see an unfounded presumption on their part. We do not have the original Hebrew text
from which the Septuagint was translated, so we cannot say whether the translation is
correct or incorrect. The crucial point is that for five centuries this translation was
considered inspired and authoritative by many in the early church.
7a. Jewish Study Bible (New York:
Oxford University Press, 2004).
8. Lawrence Lader, Abortion (Indianapolis, IN: Bobbs-Merill, 1966), p.
76.
9. Augustine, On Exodus, 21.80.
10. The Enchiridion, Chapter 85 in Basic Writings of St. Augustine,
vol. 1, p. 708.
11. Quoted in Jane Hurst, The History of Abortion in the Catholic Church:
The Untold Story, p. 11.
12. Thomas Aquinas, Summa Theologica I, q. 118, art. 2.
13. See Hurst, p. 16.
14. See Lader, p. 80.
15. John Connery, Abortion: The Roman Catholic Perspective (Chicago:
Loyola Univeresity Press, 1977), p. 212.
16. James J. McCartney, "Some Roman Catholic Concepts of
Person…," Abortion and the Status of the Fetus, p. 313.
17. Joseph F. Donceel, "Immediate Animation and Delayed
Hominization," Theological Studies 31 (1970), pp. 76-105.
18. Quoted in Cyril C. Means, "The Law of New York Concerning Abortion
and the Status of the Fetus, 1664-1968," New York Law Forum 14 (1968), p. 420.
19. H. T. Engelhardt, "Introduction" to Abortion and the Status
of the Fetus, p. xxii.
20. Harold O. J. Brown, Death Before Birth (New York: Thomas Nelson,
1977), p. 124.
21. Mitchell Dahood, The Anchor Psalms, vol. 3, pp. 284, 294.
22. Ibid., p. 295. Even if one stays with the word golem, the Jewish
tradition has maintained that it means unformed and unsouled (see Carol Ochs, Behind
the Sex of God, [Boston, MA: Beacon Press, 1977] p. 8). The Golem of Medieval Judaism
was a monster without a soul.
23. Paul K. Jewett, "The Relationship of the Soul to the Fetus,"
quoted in L. P. Bird, "Dilemmas in Biomedical Ethics" in The Horizons of
Science (New York: Harper & Row, 1978), p. 140.
24. C.F. Keil and F. Delitzsch, Commentary on the Old Testament, vol.
1, p. 64. The evangelical Theological Wordbook of the Old Testament also concurs:
"God’s image obviously does not consist in man’s body which was formed from earthly
matter, but in his spiritual, intellectual or moral likeness to God from whom his
animating breath came" (vol. 2, p. 768).
25. The church fathers unfortunately took this verse very seriously.
Tertullian states: "You [woman] are the devil’s gateway…How easily you destroyed
man, the image of God" (quoted in Mary Daly, Beyond God the Father [Boston,
MA: Beacon Press, 1973], p. 44). Augustine believed that the image of God resided only in
the male; females would have it only in their sexless resurrected bodies (De Trinitate,
XII, 7).
26. New Bible Dictionary, p. 777/732 (2nd ed.).
Evangelical Michael Green also claim that Paul believes that the image of God is found in
"his beloved Son" alone (The Truth of God Incarnate, p. 20).
26a. See Barry Bandstra, Reading the Old Testament (Belmont,CA:
Wadsworth, 1995), p. 60-61
27. James W. Sire, The Universe Next Door (Donwer’s Grove, IL:
Intervarsity Press, 1976), p. 31.
28. Paul K. Jewett, quoted from class notes by John Pelt, The Soul, The
Pill, and the Fetus (New York: Dorrance, 1973), p. 31.
29. John T. Noonan, "An Almost Absolute Value in History" in The
Problem of Abortion, pp. 14-15.
30. P. Schoonenberg, God’s World in the Making, p. 50; quoted favorably in
Donceel, op. cit., pp. 98-99.
31. Clifford Grobstein, From Chance to Purpose (Reading, MA:
Addison-Weslely, 1983), p. 88.
32. Ibid, pp. 91-92.
33. Engelhardt, "Viability and the Use of the Fetus" in Bondeson,
p. 185.
34. David Feldman, op. cit., p. 253; Aitareya Upanishad 2. 4. 2;
Plutarch, De Placitis, 15.
35. Roland Puccetti, "The Life of a Person" in Bondeson, pp.
169-181.
36. Martin Buber, I and Thou, trans. Walter Kaufmann (New York:
Scribner’s Sons, 1970), pp. 54, 62.
37. Engelhardt, "The Ontology of Abortion," pp. 219-20.
38. Donceel, p. 83.
39. Jacques Maritain, "Vers une thrie thomiste de l’evolution" p.
96; translated and quoted by Father Donceel in a letter to me, January 17, 1984.
40. This section was originally part of a paper presented at the Northwest
Conference on Philosophy at Seattle University, November 1981. I am grateful to former
students in Philosophy 103 for their inventiveness in coming up with most of the arguments
against Tooley’s and Englehardt’s criticisms of the potentiality principle.
41. John V. Wagner, "The Effectiveness of Various Arguments for the
Humanity of the Unborn," unpublished conference paper.
42. See Engelhardt, "The Ontology of Abortion" and Michael Tooley,
"Abortion and Infanticide." I have deleted my arguments against Tooley because
of space limitations.
43. Engelhardt, "The Ontology of Abortion," p. 223.
44. William S. Hamrick, "Abortion: A Whiteheadian Perspective," an
unpublished 1980 paper available at the Center for Process Studies, Claremont, California,
p. 25.
45. Again Jesuits Donceel and Schoonenberg are my source for this
information. Donceel states that "even an unfecundated human ovum would be
potentially, virtually, a human person. Does each such ovum possess a human soul?"
(p. 99).