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Abortion & Personhood*

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Title: Abortion & Personhood*


1
Abortion Personhood
  • Philosophy 2803
  • Lecture VII
  • March 12, 2002
  • Some slides prepared by Dr. Barbara Barrowman

2
History
  • There is evidence that abortion has been
    practiced throughout human history (recipe for
    abortion potion in Chinese text 2600 BC)
  • Hippocrates (5th Cent. BC) forbade abortions
  • Plato and Aristotle (4th Cent. BC) endorsed it as
    a means of population control
  • In Western world, the debate on abortion has been
    conducted predominantly in a religious context

3
History of Abortion Law in Canada
  • 1869 Criminal law passed prohibiting abortion,
    max. penalty life imprisonment
  • 1892 First Criminal Code criminalized not
    only abortion, but also sale, distribution and
    advertisement of contraception
  • 1969 Decriminalization of contraception
  • Introduction of the therapeutic abortion
    exception

4
Criminal Code s. 251 (1969-1988)
  • 251. (1) Every one who, with intent to procure
    the miscarriage of a female person, uses any
    means for the purpose of carrying out his
    intention is guilty of an indictable offence and
    is liable to imprisonment for life. (p. 320)
  • It was also illegal for a woman to have an
    abortion, although the penalty was less (up to 2
    years)
  • s.251 did allow for an exception for therapeutic
    abortions
  • Roughly, this means medically required abortions

5
Therapeutic Abortions under s. 251
  • Abortion remained a crime (for abortion provider
    and pregnant woman) unless
  • Carried out in an accredited or approved hospital
  • Approved in advance by majority of 3 member
    therapeutic abortion committee
  • The continuation of pregnancy was likely to
    endanger life or health of pregnant woman
  • See pp. 320-1 for full text of s. 251

6
Morgentaler (S.C.C. 1988)
  • 5-2 decision, Court struck down s. 251 as being
    contrary to the Charter
  • s. 7 Every one has the right to life, liberty
    and security of the person and the right not to
    be deprived thereof except in accordance with
    principles of fundamental justice. (p. 322)
  • Variety of reasons given in majority judgments
  • some were technical
  • some were substantive
  • for dissent, see pp. 328-330

7
Technical
  • s. 251 clearly interferes with a womans bodily
    integrity in both a physical and emotional
    sense.
  • S. 251 therefore, is required by the Charter to
    comport with the principles of fundamental
    justice. (p. 320)
  • Majority held it did not. The structure of the
    law created various problems
  • Unequal access
  • Delays (psychological stress, increased danger)
  • Lack of TAC in some areas
  • Vagueness of term health (includes
    psychological health?) (see pp. 322-6)
  • Could not be saved under section 1 of the Charter

8
Substantive
  • Primarily contained in Justice Wilsons ruling
    (see pp. 330-333)
  • Not all in the majority based their decision on
    substantive reasons. All did acknowledge
    technical problems.
  • Wilson what s.251 does is asset that the
    womans capacity to reproduce is not to be
    subject to her own control. she is truly being
    treated as only a means to an end Can there
    be anything that comports less with human dignity
    and self-respect? (p. 331)
  • W. recognized a state interest in protecting the
    fetus but took a developmental view of this
    (i.e., based on stage)

9
Post-Morgentaler
  • Morgentaler did not rule out a new law on
    abortion, nor take a clear stance on the moral
    status of the fetus.
  • Bill C-43 (1990) would have recriminalized
    abortion except where womans doctor took view
    that her health (including psychological health)
    was likely to be threatened
  • Passed by House of Commons, defeated by Senate
    44-43
  • Since then, no further attempt at federal
    legislation
  • There are local policies in place restricting
    access to abortion (e.g., Health Care Corp. of
    St. Johns)

10
Post-Morgentaler Paternal Rights?
  • 1989 3 cases (Manitoba, Ontario, Quebec) in
    which injunctions to prevent abortions were
    sought by men alleging paternity
  • Daigle v. Tremblay (S.C.C.)
  • injunction struck down - potential father did not
    have right to prevent abortion
  • fetus not a human being under Quebec Charter,
  • fetus must be born alive to enjoy legal rights

11
Post-Morgentaler Maternal-Fetal Conflicts
  • Applications for judicial interference with
    pregnant women in the alleged interest of the
    fetus
  • A number of these cases, most involving maternal
    substance abuse/addiction, made their way through
    the courts in the 1980s and 90s, with differing
    results
  • This issue culminated in D.F.G. case (S.C.C. 1997)

12
Winnipeg Child and Family Services v. D.F.G.
  • Ms. G. 5 months pregnant with 4th child, addicted
    to glue sniffing, 2 previous children disabled
    and wards of state
  • CFS made application for order to detain and
    treat until birth of child
  • Order initially granted, reversed on appeal
  • In meantime Ms. G. successfully stopped sniffing,
    gave birth to apparently normal child
  • S.C.C. agreed to hear appeal anyway, given
    importance of general issue

13
Winnipeg Child and Family Services v. D.F.G.
(S.C.C. 1997)
  • 7-2 decision
  • Majority held that courts do not have power to
    detain pregnant woman for purpose of preventing
    harm to her unborn child
  • fetus not a legal person in Canadian law
  • concern re where to draw the line if such
    orders could be granted
  • Up to legislatures if they want to change this

14
Abortions per 1,000 Canadian Women (1998)
15
Abortions per 100 Live Births (1998)
16
An Argument Against Abortion
  • P1 It is (generally) wrong to kill a human being
  • P2 Fetuses are human beings
  • P3 Abortion involves killing a fetus.
  • C Abortion is (generally) wrong.
  • Note We will be using the word fetus very
    loosely (i.e., so that it covers all stages of
    development)

17
Whats Wrong with the Argument?
  • The argument equivocates
  • i.e., it uses a word in two distinct ways,
    without acknowledging this
  • P1 It is (generally) wrong to kill a human
    being
  • P1 is clearly true only if we have in mind a
    normative sense of the word 'human
  • i.e., a sense meaning something like full member
    of the moral community.
  • The term person is often used to describe this
    idea.
  • P2 Fetuses are human beings
  • P2 is clearly true only if we have in mind a
    biological (i.e., descriptive) sense of the word
    human
  • i.e., a sense meaning something like genetically
    human

18
Whats Wrong with the Argument?
  • In order to make P1 obviously true we have to use
    the word human in such a way that it makes P2
    questionable.
  • In order to make P2 clearly true, we have to use
    the word human in such a way that it makes P1
    questionable.
  • See Sumner for more detail (especially, p. 354)
  • What we need is a clearer understanding of the
    normative sense of the word human
  • We need an account of what a person is

19
Candidates for Personhood
  • Uncontroversial
  • normal adult human beings
  • More Controversial
  • Fetuses, infants, children
  • Animals
  • Robots, artificial intelligence, computers
  • Mentally disabled, severely physically disabled
  • Alzheimers patients
  • Aliens, Martians

20
Why Consider the Idea of Personhood? (pp. 286-7)
  • 1. Abortion
  • Significance for abortion debate
  • Is a human being a person at conception or only
    at a later stage?
  • 2. Technology
  • New technology means new possible persons
  • Medical technology (respirators, kidney machines,
    pacemakers, artificial limbs, etc.)
  • New reproductive technology (DNA manipulation,
    cloning, etc.)
  • Artificial intelligence and robotics

21
Why Consider the Idea of Personhood? (Continued)
  • 3. Organ Transplantation
  • Organs from living donors (i.e., humans who are
    not persons) have a much better chance of not
    being rejected than from organs from cadavers
  • Accounts of death as the end of personhood
  • Brain death vs. complete death
  • 4. Euthanasia
  • Can human beings lose their personhood? (i.e.,
    those in a coma, severely brain-damaged
    individuals, Alzheimer sufferers, etc.)
  • More next week

22
Why Consider the Idea of Personhood? (Continued)
  • 5. Legal and Political Significance
  • Personhood has a long history, although not under
    this name
  • i.e., only citizens could vote in ancient Rome
  • Certain kinds of rights belong only to persons
  • Women were not recognized as legal persons in
    Canada until 1929
  • The Persons Case
  • Childrens Rights? Animal rights?
  • Are children persons? Are animals persons?

23
Possible Accounts of Personhood
  • 1. Biological Account
  • 2. Sentience Account
  • 3. Self-consciousness Account
  • 4. Relational Account
  • 5. Soul Account

24
1. Biological Account
  • Person human being (homo sapiens)
  • Strong point This makes personhood observable
  • Science can tell us what is a human being and
    what is not i.e. a human fetus is a member of the
    species homo sapiens
  • Although we must first settle what we mean by
    human being genetically human, physically
    resembling a normal adult human, etc. (See
    Sumner, pp. 351-353)

25
Problems with the Biological Account
  • Why should membership in a species be morally
    relevant?
  • Peter Singer compares speciesism with racism
    sexism.
  • It involves arbitrarily drawing the lines of
    personhood to exclude a group that deserves moral
    consideration.
  • Would killing Martians be OK just because they
    are not human?
  • What makes us special?

26
2. The Sentience Account (or Bare Consciousness)
  • Person sentient being
  • Beings that are capable of feeling (i.e.,
    experiencing pleasure and/or pain) are persons
  • Peter Singer again
  • The minimal characteristic which is needed to
    give the embryo a claim to consideration is
    sentience, or the capacity to feel pleasure or
    pain. Until the embryo reaches that point, there
    is nothing we can do ... which causes harm to it.

27
Problems with the Sentience Account
  • How can we tell that a being is sentient?
  • Will observable behaviour, brain scans, etc. do
    the job?
  • Is the theory too loose about what it counts as a
    person?
  • If we consider animals as capable of feeling
    pleasure and/or pain then animals are persons too

28
Canadian Medical Association, 1991
  • A human fetus becomes a person ... when the
    foetal nervous system has developed to the point
    where it has the basic capacity for sapient
    cognitive awareness irrespective of level of
    sophistication. (CMA, Committee on Ethics, p.
    290)
  • Cognitive awareness? Is this different from bare
    consciousness?
  • Fetal personhood (fetus at 20 weeks person)
  • Frances Rosenberg argues against the CMA
    claiming that a fetus is not a person until born
    (pp. 300-1)
  • Until the fetus is born, there is only one
    person. (300)
  • Similar view to relational account

29
3. Self-consciousness Account
  • Person self-aware being
  • Persons must be aware of themselves as continuing
    subjects of experience
  • Note consciousness ? conscience
  • conscience is a mental state of appreciating what
    is right or wrong, i.e. the little devil and
    the little angel on your shoulders
  • Not all animals would qualify on this account
    (but some might, e.g., chimpanzees)

30
Problems with the Self-consciousness Account
  • How do we determine if something has
    self-consciousness?
  • Daniel Dennett language (i.e. narrative) is
    required to determine personhood
  • Dennett excludes animals, fetuses, infants, and
    small children as persons
  • What about those who have amnesia are they
    different persons?
  • If someone loses awareness of herself as a
    continuing subject has she lost her personhood?

31
4. Relational Account
  • Person something able to engage in human
    relationships
  • Persons are social creatures (i.e. members of a
    community)
  • Account is associated with feminist philosophy
  • Susan Sherwin Fetuses are not persons because
    they have not developed sufficiently social
    relationships to be persons in any morally
    significant sense... Newborns, although just
    beginning their development into persons, are
    immediately subject to social relationships. (p.
    341)

32
Problems with the Relational Account
  • What about those who are autistic or those who
    suffer from schizophrenia?
  • They are often unable to form certain sorts of
    social relationships.
  • No rudimentary social relationship between mother
    and fetus?

33
5. Soul Account
  • Person being with a soul
  • Historically, a very important view
  • Central to many religious traditions

34
Problems with the Soul Account
  • How can we test what has a soul and what does
    not?
  • Do tables and chairs have souls? Do plants? Do
    animals? Do humans?
  • Would clones have souls?
  • Do all living things have souls? If so does this
    mean that a tree is a person too?
  • Does this approach rely unreasonably on faith?

35
Groupwork
  • A world-famous violinist has a fatal kidney
    ailment
  • You alone have the right blood type, etc. to help
  • You wake up to discover the violinist has been
    attached to you without your consent. He is now
    using your kidneys. 
  • He will die due to kidney failure if he is
    disconnected now.
  • He can be safely unhooked in several months
  • You will suffer no long term effects but will
    obviously be greatly inconvenienced over the next
    few months.
  • Are you ethically obliged not to disconnect
    yourself from the violinist?

36
Is Personhood as Important as People Think?
  • Important Point Some things may matter morally
    without being persons (e.g., animals)
  • Well consider two arguments (one pro-choice, one
    anti-abortion) that dont rest on claims about
    personhood
  • Judith Jarvis Thomson A Defense of Abortion
  • Don Marquis Why Abortion is Immoral
  • Both are available on reserve

37
Suppose the fetus is a person
  • A possible argument
  • P1 A person has a right to life.
  • P2 A person has a right to control what happens
    to her body.
  • P3 In a case in which a woman wants an abortion,
    one of the above rights will be violated no
    matter what, either the womans right to control
    her body or the fetus right to life.
  • P4 If someone's right will be violated either
    way, morality requires that we should violate
    whichever is the least important right.
  • P5 The right to life always outweighs the right
    to control one's body.  
  • C Abortion is wrong.

38
Thomson The Violinist Example
  • From a famous article by Judith Jarvis Thomson
  • A world-famous violinist has been attached to you
    without your consent.  
  • He will die due to kidney failure if he is
    disconnected now.
  • He can be safely unhooked in nine months.

39
The Point of the Violinist Example
  • Thomson's Claim It would be nice of you to
    remain hooked up, but, morally speaking, you
    don't have to stay hooked up.
  • So what?
  • Thomson's Point Another persons right to life
    doesn't always trump the right to control your
    body.  
  • i.e., P5 is wrong
  • If shes right, then even if the fetus is a
    person, it doesnt follow that abortion is
    necessarily wrong.  

40
The Remaining Question
  • Even if you accept Thomsons claims about the
    Violinist Example, this doesnt lead to a clear
    position on abortion.
  • Clearest application is to cases in which the
    pregnant womans life is threatened
  • The Big Question When does the fetus right to
    life 'trump' the right to control your body?
  • Thomsons Answer What makes a difference is
    whether the fetus has been invited in
  • Clearly not in case of rape
  • What about sex without contraception?
  • Sex with contraception?

41
Marquis Why Abortion is Immoral
  • Question Why is it wrong to kill ordinary
    people?
  • "What primarily makes killing wrong is neither
    its effect on the murderer nor its effect on the
    victim's friends and relatives, but its effect on
    the victim. The loss of one's life is one of the
    greatest losses one can suffer. The loss of one's
    life deprives one of all the experiences,
    activities, projects and enjoyments that would
    have constituted one's future.
  • Killing us is wrong because it deprives us of a
    particular kind of future, 'a future-like-ours'.

42
Marquis Argument
  • Abortion is wrong in most cases because most
    fetuses have a future-like-ours.
  • Notice that this is not an argument based on the
    concept of being a person. It seems to rely on
    the potential to be a person.
  • A Possible Exception "Presumably abortion could
    be justified in some circumstances, only if the
    loss consequent on failing to abort would be at
    least as great.
  • E.g., if the pregnancy threatens the womans life

43
Questions for Marquis
  • What would this argument tell us about the moral
    status of contraception?
  • Is his account of whats wrong with killing
    correct?
  • An alternative suggestion killing an ordinary
    human being is wrong because it deprives a person
    of a future-like-ours

44
The Point
  • You may be convinced by neither Thomsons
    argument nor Marquis
  • They do make a case that it is a mistake to think
    that all, or even most, ethical questions about
    abortion would be answered by resolving the issue
    of whether fetuses are persons.
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