The Edge of Life Human Dignity and Contemporary Bioethics

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 TABLE OF CONTENTS

ACKNOWLEDGEMENTS vii

CHAPTER 1
INTRODUCTION 1
CHAPTER 2
WHEN DOES A HUMAN BEING BECOME A PERSON? 5
CHAPTER 3
ALL HUMAN BEINGS ARE PERSONS 41
CHAPTER 4
HOW IS THE DIGNITY OF THE PERSON AS AGENT RECOGNIZED? DISTINGUISHING
INTENTION FROM FORESIGHT 67
CHAPTER 5
AN ETHICAL ASSESSMENT OF BUSH’S GUIDELINES FOR STEM CELL RESEARCH 83
CHAPTER 6
MORAL ABSOLUTISM AND ECTOPIC PREGNANCY 97
CHAPTER 7
COULD ARTIFICIAL WOMBS END THE ABORTION DEBATE? 105
CHAPTER 8
SOLOMON’S DILEMMA: SHOULD CONJOINED TWINS JODIE AND MARY HAVE BEEN
SEPARATED? 123
CHAPTER 9
CAPITAL PUNISHMENT AND THE CATHOLIC TRADITION: CONTRADICTION,
CIRCUMSTANTIAL APPLICATION, OR DEVELOPMENT OF DOCTRINE? 133

v
 ACKNOWLEDGEMENTS

My thanks to the Alexander von Humbolt Foundation for supporting research on

certain sections of this book with a Bundeskanzler Fellowship at the University
of Cologne in 1996. I would also like to thank Paul Weithman, David Solomon,
Thomas Cavanaugh, Ron Tacelli, Michael Sherwin, Ralph McInerny, Miles Kessler,
J. Budziszewski, and others for their helpful comments on various chapters. Much work
was also done on this work during a year as a Fulbright scholar in Germany during
2002–2003. Portions of this book have appeared in print elsewhere, and they appear
here with permission. These include “Capital Punishment and the Catholic Tradition:
Contradiction, Change in Circumstance, or Development of Doctrine” in Nova et Vet-
era English Edition, “The Tragic Case of Jodie and Mary: Questions about Separating
Conjoined Twins” in the Linacre Quarterly, “Distinguishing Intention from Foresight:
What is Included in a Means to an End” in the International Philosophical Quarterly,
and “Moral Absolutism and Ectopic Pregnancy” in the Journal of Medicine and Phi-
losophy. Finally, thanks are also due to Brian Singer, Thomas D’Amico, and Zane Yi
who were valuable research assistants.
In thanksgiving, I would like to dedicate this book to Jennifer, amo te.

vii
 CHAPTER 1

INTRODUCTION

The Edge of Life: Human Dignity and Contemporary Bioethics treats a number of
distinct moral questions and finds their answer in the dignity of the person, both as
an agent and as a patient (in the sense of the recipient of action). Characteristically
one’s view of the human being ultimately shapes one’s outlook on these matters. This
book addresses questions that divide a culture of life from a culture of death as well
as a number of questions debated within the Catholic tradition itself. The Edge of Life
offers a critique of the new bio-ethic, represented by such notable authors as Peter
Singer; it also attempts to shore up some of the difficulties leveled by critics against
the traditional ethic as well as to answer some questions disputed by those within the
tradition. This book does not treat the basic principles of morality but rather many of
their applications and suppositions. (For an account of contemporary debates within
the Catholic tradition on these matters, see Kaczor 2002). Rather, The Edge of Life
seeks to address a number of disputed contemporary questions touching upon human
dignity at what has been called “the margins of life.”
The first section of the book treats the dignity of the human person as recipient of
action and as agent. Chapter two examines various accounts of when a human being
becomes a person. Some, like Peter Singer and Michael Tooley, hold that a human
being becomes a person sometime after birth. Others, like Mary Anne Warren and
Tristram Engelhardt, hold that birth marks the decisive transition from merely being a
human being to being a person. Other theorists, David Boonin and Ronald Green, hold
that during the process of gestation a human being becomes a person. This chapter
criticizes all these views, and a number of other alternatives, as inadequate accounts of
personhood.
Chapter three argues that every human being is indeed a person, and that most
human beings begin at conception. Here I argue that an “ontologica1” conception of
personhood overcomes all the difficulties presented by various “functional” conceptions
of personhood explored in the previous chapter, namely the episodic problem, the
problem of degree, and various kinds of over-inclusivity and under-inclusivity. This
chapter treats many objections to this view, including the high rate of embryo mortality,
a cost-benefit analysis of personhood, twinning and embryo fusion.
Chapter four concerns the dignity of the human person also but not considered as
a recipient of action but rather as an agent. The distinction between foresight and inten-
tion underlies many of the discussions in this book including the treatment of ectopic
pregnancy, the separation of conjoined twins, stem cell and fetal tissue research, and
physician-assisted suicide. In considering the human person as agent, this chapter first
brings forward some failed attempts to distinguish the intended and/or chosen from the
foreseen, failed at least if one takes for granted certain paradigmatic cases. Secondly,

1
2 CHAPTER 1

I suggest four characteristics that differentiate the intended or chosen from the foreseen,
thereby determining what is included in a means to an end. These differentiating char-
acteristics allow us to distinguish a number of similar but essentially (that is, considered
as human acts) different cases from one another.
The second half of the book examines a variety of debated issues. The work unifies
the account concerning many disparate issues regarding life issues and shows the
coherence, plausibility, and principled differences among various cases: federal funding
for stem cell research, treatment of ectopic pregnancy, ectogenesis, separating conjoined
twins, and capital punishment. I have attempted to make each chapter as complete
in itself as possible, since each deals with different topics. However, there is some
overlap among them, in particular the application of double effect reasoning, and some
intentional repetition has been included to secure that each chapter could be understood
on its own.
Building on the conclusions of chapter three that every newly conceived human
being should be accorded the dignity granted other human persons, the fifth chapter
focuses on the stem cell research guidelines proposed by President George W. Bush.
Many questions arise from these guidelines. Some have criticized the assumption that
there are many workable stem cell lines available. Others have questioned Bush’s po-
litical judgment. I focus on the ethical questions. Could funding stem cell research be
justified even if the human embryo is a person? Are Bush’s guidelines too lenient or
too strict?
If one accepts the version of absolutism suggested at the end of chapter two that ex-
cludes the intentional killing of any innocent human person from conception to natural
death, ectopic pregnancy, the subject of the next chapter, poses vexing difficulties. Given
that the embryonic life almost certainly will die anyway, how can one retain one’s moral
principle and yet adequately respond to a situation that gravely threatens the life of the
mother and her future fertility? The four options of treatment most often discussed in
the literature are non-intervention, salpingectomy (removal of tube with embryo), salp-
ingostomy (removal of embryo alone), and use of methotrexate (MXT). In this chapter,
I review these four options and also introduce a fifth (the milking technique). Based
on the account of the intention/foresight distinction offered in a previous chapter, as
well as on the clinical evidence in treating ectopic pregnancies requiring intervention,
I conclude that salpingectomy, salpingostomy, and the milking technique are compatible
with absolutist presuppositions, but not the use of methotrexate.
Cases of ectopic pregnancy are not the only ones that seem to pit fetal and maternal
interests against one another. The next chapter proposes a possibility that could over-
come all such possible conflict. Imagine that one could remove a developing human
being in utero from the earliest stages of pregnancy and place the human embryo or
fetus in an affordable artificial womb to develop normally until removal at “birth.”
What difference would this development make for the abortion debate? Some choose
abortion because they want a child not to exist but others choose it because they do
not wish to be pregnant and the alternative of bonding with the child for nine months
and then placing the child in another family through adoption is too difficult. However,
some Catholic authors view embryo adoption as problematic and so would presum-
ably view use of artificial wombs as wrong. Others who approve embryo adoption in a
natural womb might nevertheless object to adoption in an artificial womb. This essay
explores one possible end to the abortion debate through dialogue with Mary Anne
Warren, Judith Jarvis Thomson, Bernard Nathanson and others.
 INTRODUCTION 3

Problematic cases are not of course limited to the time before birth where the
mother’s life can be threatened by pregnancy. The next chapter treats the case of Jodie
and Mary. Born in Manchester, England on August 8, 2000, Jodie and Mary were
joined at the lower abdomen and shared a spine. Though both twins had nearly a full
complement of organs, Jodie’s heart and lungs maintained both of their lives since
Mary’s were not sufficiently developed to pump oxygenated blood. Doctors predicted
that Jodie’s circulatory system would give out in a matter of weeks under the strain
of supporting both girls. A decision to rival Solomon’s: Should one twin be sacrificed
in order to save the other or should both be allowed to perish? The case of Jodie and
Mary prompts many questions, and I have tried to answer only three in this chapter.
Was the separation intentional killing? Was the separation intentional mutilation? Was
the separation obligatory?
The final chapter treats the issue of capital punishment and the Catholic tradition.
Many people see a contradiction between a stringent defense of human life, in the
cases of abortion and infanticide, and a willingness to allow the state to take human life
in the case of the death penalty. Other questions arise about the relationship between
the teaching of Pope John Paul II on this issue and the teaching of previous popes
and Church councils. This chapter will explore these issues in an attempt to show a
consistency in approaches to various life issues.
Of course, my remarks on all these topics will not be the final word on these
matters, but hopefully they will serve as the beginning of a search for wisdom in the
use of contemporary technology and a recognition of human dignity for all.
 CHAPTER 2

WHEN DOES A HUMAN BEING BECOME

A PERSON?

Scholars have answered this question, so central to contemporary bioethical debates,

in numerous and contradictory ways. In common speech, we often use the words
“person” and “human being” interchangeably. We might even be tempted to think
that all human beings, all members of the biological species homo sapiens, are per-
sons and all persons are human beings. Tooley wants to use terms more precisely
than this, and he designates “person” as a moral concept meaning someone who has
a serious right to life, that is, a right not to be killed (Tooley 1999, 22). It could
turn out then that there are beings who are not human beings, but nevertheless have
a right to life. In fact, many people believe that there are categories of non-human
persons. For example, some animal rights activists hold that intelligent animals such
as dolphins and baboons are persons and many people of faith believe in the ex-
istence of non-human persons such as Gabriel and other angels, Lucifer and other
demons, and the divine Persons of the Trinity: Father, Son, and Holy Spirit. If an
alien like ET were to arrive from another planet, promising peace and presenting plans
for human-alien cooperation, such a being, though not human, would be a person,
the kind of being with a right to life. For this reason, when encountering fictional
beings such as ET, the Iron Giant, or Shrek, we instinctively recoil when they are
the objects of murderous intent. Tooley observes, therefore, that biology or animal
make-up is not essential in determining whether a being has a right to life. After
all,
what do physiological characteristics have to do with questions of whether an
organism is a person? (Tooley 1999, 23).

Now, it may turn out that there are no non-human persons, no space aliens, no
deities, no angelic beings, no demons, and therefore, it may be that all persons are
human. But just as it doesn’t necessarily follow that all humans are men even though
all men are humans, so it doesn’t necessarily follow that all humans are persons even
if all persons are human. Thus, even granting that all persons are human (though
how exactly this could be demonstrated is far from clear), another question remains,
the question which drives much of the abortion debate (Thompson’s violinist and its
variations being exceptions to the rule) and is at the heart of Tooley’s article. Are all
members of the species homo sapiens also beings deserving of respect? Let us consider
a range of views beginning with those that posit personhood as beginning relatively late
in human development and moving towards those that posit personhood as beginning
earlier in human development.

5
6 CHAPTER 2

1. NOT ALL HUMAN BEINGS ARE PERSONS

Biologically, it is fairly simple to determine which beings should be scientifically clas-
sified as homo sapiens and which ones should not. Human beings have distinctive
blood, DNA, and tissue. Even if the untrained eye cannot easily tell the difference,
scientists can clearly differentiate a human embryo from a horse embryo or rabbit em-
bryo. In terms of biological classification, there is no doubt that a human embryo, a
human fetus, a human infant, a human toddler, and so on through advanced old age
are all various stages of life for a human being. So, although the popular discussion
is often couched in terms of a debate about the “humanity” of the fetus or a new-
born, from a scientific point of view such questions are definitively answered. If the
question is whether a fetus or newborn conceived by human parents is also geneti-
cally, biologically, and scientifically to be classified as a member of homo sapiens,
a human being, the answer is beyond serious debate. Informed people, both those
who would call themselves pro-life and those who would call themselves pro-choice,
agree. Any being, at whatever stage of maturity, conceived by a human mother and
a human father must also be human. Thus, all such fetuses or infants are also in-
dubitably human beings, members of homo sapiens. As Tooley and Laura Purdy
remark:
The first part of the claim [of those who oppose abortion] is uncontroversial. A
fetus developing inside a human mother is certainly an organism belonging to
homo sapiens (Purdy and Tooley 1974, 140).

However, admitting that what is being killed is a human fetus or a human infant,
does not settle the abortion/infanticide debate in one way or the other for an important
question remains: Are all human beings also persons? Might there be some homo
sapiens, sharing human blood, DNA and so forth with the rest of us, who nevertheless
do not possess a serious right to life? This chapter explores and critically responds to the
answers given by those who believe personhood begins either after birth or sometime
during gestation.

Tooley and Singer’s Conception of a Person

Tooley suggests this fundamental principle to distinguish persons from mere human
beings:
An organism possesses a serious right to life only if it possesses the concept of
self as a continuing subject of experiences and other mental states and believes
that it is itself such a continuing entity (Tooley 1999, 24).

In support of Tooley, and retrieving a definition of person suggested by John Locke,

Singer defines a person as
a being with awareness of his or her own existence, and the capacity to have wants
and plans for the future (Singer 1994, 218).

This definition of personhood, arising from Locke and amplified by Singer, has
several elements: a being is a person if and only if the being has (1) an awareness of
his or her own existence (2) over time and in different places with (3) the capacity to
have wants and (4) plans for the future.
 WHEN DOES A HUMAN BEING BECOME A PERSON? 7

Descartes famously said “Cogito ergo sum”: “I think, therefore I am.” Tooley
replaces the metaphysical question of existence with the ethical question of personhood:
“I think, therefore I am a person.” Without concepts, there is no personhood; without
personhood, there is no right to life. On Tooley’s view, rights arise from desires. One can
only desire to live, if one has a concept of oneself as a living being. Thus, if one has no
concept of oneself as a living being, then one cannot desire to live, and consequently one
does not have a right to life and is not a person. Given this understanding of personhood,
what follows for debates about respect for human life?
This question can only be answered by a determination of when a human being is
able to have concepts, for obviously without concepts there cannot be a concept of the
self. Clearly, however, no human fetus has a concept of himself or herself. However,
the same thing holds true for a newborn. Just as no one violates my property rights
when taking my property if I no longer desire to have whatever it is as my property,
so too no wrong is done to a newborn or a human fetus in killing him or her because
he or she does not have a concept of himself or herself and thus, has no rights to
violate. Thus, Tooley’s argument leads to the conclusion that abortion is permissible
throughout all nine months of pregnancy and infanticide is also permissible until the
baby has concepts. When does a human child begin to have concepts?
There is some debate about this question. Many philosophers, probably most in
both the analytic and continental philosophical traditions, believe that all concepts
presuppose language, so that one cannot have concepts until language has developed.
In the words of Donald Davidson,
a creature cannot have thoughts unless it is an interpreter of the speech of another
(Davidson 1984, 157, see too Malcolm 1977, Stich 1983, Derrida 1973).
If this view of the relationship of concepts and language is taken, then termination
of young human beings is permissible until speech develops, which varies rather widely
among children but begins on average from approximately 9 months of age until two
and a half, and for some children even later. On this view, not just infanticide but
putting older children to death would then be permissible until the being could use
verbal expression (Tooley 1999, 33). If and only if you can say “I have a right to life,”
do you have a right to life. It happens that some children are deprived of the chance to
learn language at all, such as Genie, an American girl found at 13 years of age who,
isolated from human contact for years, never learned to speak. On this account, she is
not a person. And since she is not a person, her isolation in this fashion could not have
violated her rights.
Tooley, however, believes that one could have concepts before acquiring language.
This renders the acquisition of personhood by a young human being more difficult
to determine. Although Tooley worries whether we, on his account of personhood,
mistreat non-human animals who are in fact persons, Tooley suggests that
[t]he lesser worry is where the line is to be drawn in the case of infanticide. It is
not troubling because there is no serious need to know the exact point at which
a human infant acquires a right to life. For in the vast majority of cases in which
infanticide is desirable, its desirability will be apparent within a short time after
birth. Since it is virtually certain that an infant at such a stage of its development
does not possess the concept of a continuing self, and thus does not possess a
serious right to life, there is excellent reason to believe that infanticide is morally
permissible in most cases where it is otherwise desirable (Tooley 1999, 33).
8 CHAPTER 2

In other words, there would in all likelihood be very little problem determining
when personhood begins since most parents, not having chosen abortion and infanticide
shortly after birth, wouldn’t want to eliminate their children later. So, Tooley suggests
that the practical moral problem can be handled by choosing a period of time following
birth, up to one week, during which time infanticide is permitted (Tooley 1999, 33).
Singer recognizes the same problem:
It would, of course, be difficult to say at what age children begin to see themselves
as distinct entities existing over time. Even when we talk with two- and three-year-
old children, it is usually very difficult to elicit any coherent conception of death,
or of the possibility that someone—let alone the child herself—might cease to
exist. No doubt children vary greatly in the age at which they begin to understand
these matters, as they do most things (Singer 2000, 162).
Where does Singer draw the line?
[T]here should be at least some circumstances in which a full legal right to life
comes into force not at birth, but only a short time after birth—perhaps a month
(Singer 2000, 163).

A Critique of Singer’s Conception of Personhood

This leads to a reconsideration of Tooley and Singer’s definition of personhood. Ac-
cording to Singer a being is a person if and only if the being has (1) an awareness of
his or her own existence (2) over time and in different places with (3) the capacity to
have wants and (4) plans for the future (Singer 1994, 218).
Singer’s definition of personhood raises serious questions. With respect to the first
condition, if you sleep deeply, when you go to sleep tonight, you will be a being with
no awareness of your own existence. If you are rushed into surgery tonight and put under
anesthesia, you will certainly be a being with no awareness of your own existence.
Taken as stated, Singer’s definition would imply that we cease being persons each
time we lose consciousness. One solution would be to say that such beings have the
potential for self awareness, but of course the same thing could be said of a human
embryo. Another solution to the sleeper problem (episodic personhood) is to say that
once a being becomes a person that being does not lose this status until it no longer
exists. In addition to being ad hoc, it is unclear why this should be important. Is
personhood a reward for being conscious a short time? Why should a being who
achieved consciousness but has permanently lost it be more valuable than a being who is
about to achieve consciousness which will be enjoyed over the course of a long life?
The second condition of Singer’s definition of personhood—self-awareness over
time and in different places–also raises difficulties. If Kant is right that space and time
are products of human perception, then we should not expect all rational beings to
be “in” space and time and therefore not all persons would reason at different times
and places. If certain theists are right in affirming that a personal God exists beyond
space and time, then again this definition of person is arbitrarily restrictive. Or consider
another possible case, a being who has self-awareness but never moves to a different
place. Perhaps the being is a space alien perfectly suited to his or her present environment
and therefore having no need or desire to move. Galen Strawson in his book Mental
Reality imagines “weather watchers,” stone-like creatures who have minds but exhibit
no motion, nor any other behavior, whatsoever. They just sit on the coast and watch
 WHEN DOES A HUMAN BEING BECOME A PERSON? 9

the weather. Why would such a being, perhaps much more rational than ourselves, not
be a person? How much does one have to move? Is a beating heart enough movement
or must one actually travel (abroad)? If a being is killed immediately after achieving
self-awareness, is no person killed since self-awareness was not enjoyed over time?
The third condition—the capacity to have wants—may include too much or, de-
pending on how capacity is defined, may make arbitrary exclusions. If “capacity” means
a potentiality not realizable here and now but sometime in the future, then the human
fetus would fulfill this element. If “capacity” means a potentiality realizable imme-
diately, then a human being in a temporary coma would not be a person. Secondly,
if unhappiness is not having your wants or desires fulfilled, then there is a powerful
incentive either to satisfy your given desires or to minimize your desires as much as
possible. Buddhism proposes this latter course of action. If Buddhists are right that the
Buddha as well as other spiritual masters have reached a state of Nirvana—no longer
desiring anything whatsoever and even extinguishing the capacity for desire—then ei-
ther such mystics are no longer persons or Singer’s definition is mistaken. One could
also imagine highly advanced aliens genetically engineered never to “want” precisely
in order to realize the Buddhist dream. Or perhaps, if theists of a certain kind are right,
then there is a divine being having all perfections, including the highest possible level
of rationality, but entirely lacking the capacity to desire, since the divine being already
enjoys and will always enjoy all perfection. If we drop “capacity” in favor of actually
having wants or desires, the same problems arise as with human beings sleeping, under
the influence of drugs, or in temporary comas. None of these human beings, though
clearly persons, has occurrent wants or desires.
The fourth condition—planning for the future—also faces difficulties. One can
easily imagine beings so powerfully rational that they do not “plan.” To plan by definition
involves discursive reasoning, the considering of premises and the working out of
likely conclusions, rather than understanding intuitively and immediately, and therefore
without planning, all that is entailed by any ‘direction of travel.’ The difference between
human reasoning and the reasoning of these beings could be compared to the difference
between a child learning to read and a sophisticated adult reader. Children learning
to read must sound out each letter, piece together syllables, and then finally, slowly
pronounce the entire word. Often, this laborious process is so slow, and takes so much
effort, that beginning readers forget the words at the beginning of a sentence by the
time they get to the end of the sentence. In contrast, an advanced reader can read
and understand not only entire words at a glance but many phrases and even short
sentences. They read. They don’t sound out. The difference between discursive human
reasoning and intuitive reasoning of the beings we are imagining here would be even
more pronounced. Even though such beings having intuitive reasoning can act, they
do not plan for the future since this implies gathering bits of information, trying to
understand how various bits of information relate to one another, and then finally,
formulating a plan for the future based on the information gathered and collated and
weighed in a prudential judgment. Rather, such beings would immediately see and
understand all the implications not only of reality, but also of what reality would be if
they choose one course of action or another. Such beings wouldn’t plan, but they are
clearly persons, and if they are clearly persons, then Singer’s definition of person is
incorrect.
Ironically, Singer’s definition of personhood fails in part because it is deeply an-
thropocentric. It is a ‘speciesist’ account of personhood that assumes that the norms of
10 CHAPTER 2

psychology, practical reasoning, and time-space experience of animal species on earth,

human and non-human, must apply to all persons.
All these difficulties are compounded by the final uncertainty of Singer and Tooley’s
argument. They assume that in most cases in which infanticide is desirable it will be
apparent shortly after birth. (Tooley 1999, 33, see also Singer 2000, 162). However, in
many cases the extent of medical disabilities of handicapped children are not understood
within a short time after birth. A severely disabled child and a normal newborn may not
display notable differences at birth or in the first few months of life outside the womb.
Only as the months and even years go on, as the handicapped child does not show
signs of developing even slowly, can the extent of neurological damage be plumbed.
So the capricious limit of one week, proposed by Tooley, or one month, proposed by
Singer, would not even accomplish the goal of sparing the parents of disabled offspring
the difficulties of raising a disabled child. Sometimes parents only discover the depth
of such illnesses later, when it would be “too late” according to Tooley’s or Singer’s
standards, to terminate the child.
Tooley’s and Singer’s conception of personhood also leads them to posit arbitrary
deadlines to separate who may live from who may be killed. Indeed setting the age
for voting or driving at 18 or 16 is arbitrary, for many people are ready for these
activities earlier and some not until later. However in matters of life and death we must
do better than picking a random length of time. Former abortionist Bernard Nathanson
writes:
The implications of all this go well beyond Tooley’s one week free-fire zone. If
self-consciousness is required, we can just as easily dispense with a comatose
adult, the severe psychotic, and the retardate with an I.Q. of 25, or the catatonic
schizophrenic with an I.Q. of 180. This is not the Slippery Slope devised by
name-calling Right-to-Lifers, but a slope that is explicitly greased by certain
pro-abortion intellectuals themselves (Nathanson 1979, 225).

Life itself is at stake, the existence of innocent human beings, and so a vision of
personhood that rests on the arbitrary decisions of the powerful against the weak cannot
be in conformity with the demands of justice or equality.

Does Personhood Begin with Birth?

Mary Anne Warren’s conception of personhood would also exclude newborn babies,
and so on the basis of this reasoning it should be concluded that killing a newborn
infant is not murder, since infanticide is not killing a person, but only a human be-
ing (Warren 2000, 266). Nevertheless, Warren differs from advocates of infanticide
such as Tooley in coming to the conclusion that although newborns are not persons
strictly speaking, infanticide is nevertheless wrong. Why? Infanticide is wrong accord-
ing to Warren because even if biological parents don’t want the child, other people
do (Warren 2000, 266). In 2002, for example, there were more than 1.5 million cou-
ples waiting to adopt children in the United States alone. Given the increasing fertility
problems of Western societies, due to a variety of cultural and possibly environmen-
tal causes, infants of all races are in great demand. Now, since it is generally wrong
to destroy something that another person greatly wants, even if you don’t happen to
greatly want it, it is wrong to destroy a newborn who is wanted by others. Secondly,
 WHEN DOES A HUMAN BEING BECOME A PERSON? 11

Warren notes that most people don’t want infants destroyed (Warren 2000, 266). If
people want to protect newborn babies, and are willing to pay for orphanages or other
needed care, then infants ought not be destroyed but rather protected. Thus, not just
various individuals but society as a whole desires that newborns be not destroyed but
protected by law and welcomed in life. However, Warren holds that killing unwanted or
defective infants born into a society that doesn’t value newborns would be permissible.
The rationale appears to be that in such a society others would not want the newborns
(Warren 2000, 267). However, our society does value newborns and so killing newborns
in our context would be impermissible.
For Warren, there is a key difference between abortion and infanticide:
so long as the fetus is unborn, its preservation, contrary to the wishes of the preg-
nant woman, violates her rights to freedom, happiness, and self-determination.
[However, the moment of birth] does mark the end of its mother’s right to deter-
mine its fate. Indeed, if abortion could be performed without killing the fetus, she
would never possess the right to have the fetus destroyed, for the same reasons
she has no right to have an infant destroyed (Warren 2000, 267).

Taking a similar position, and offering further reasons to distinguish between infants
and human fetuses, H. Tristram Engelhardt in his article, “Sanctity of Life and the
Concept of a Person,” follows Warren in marking the distinction between persons and
mere human beings in such a way that renders newborn human beings non-persons.
Engelhardt speaks of a “social concept of person.” He invokes this social concept of
a person in some instances where a human being is not strictly speaking a person but
should be accorded the social status of personhood anyway. Why grant such status to
newborns? Engelhardt offers several reasons (Engelhardt 2000, 81). First, the infant
is biologically human and so deserves a modicum of respect. Second, newborns are
also able to engage in a minimum of social interaction. Third, a human fetus can
survive regardless of social recognition; a newborn cannot survive regardless of social
recognition. Fourth, forbidding infanticide helps preserve trust in families, nurtures
important virtues of care and solicitude towards the weak, and assures the healthy
development of children. Fifth, Engelhardt notes that there is
considerable value in protecting anything that looks and acts in a reasonably
human fashion (Engelhardt 2000, 82).

Finally, human infants,

with luck . . . will become persons strictly, and . . . actions taken against infants
could injure the persons they will eventually become (Engelhardt 2000, 82).

Why not include human beings in utero as persons in this social sense? Engel-
hardt provides several answers. Abortion aids the convenience of women and fam-
ilies, prevents the birth of infants with serious genetic diseases, helps control pop-
ulation growth, secures a woman’s right to choose freely concerning her body, as
well as secures a woman’s freedom to determine whether she will become a mother.
Thus, for both Warren and Engelhardt, although neither a human fetus nor a new-
born are strictly speaking persons, newborns should not be killed, but abortion is
permissible.
12 CHAPTER 2

Defense of Abortion, Condemnation of Infanticide: A Critique

of the Conventional View
Various efforts to approve abortion but condemn infanticide often suffer from a two-
fold difficulty. Arguments against infanticide often apply equally well to abortion while
arguments in favor of abortion often apply equally well to infanticide. Thus, both those
who are pro-life as well as advocates of infanticide agree that the conventional view
is incoherent. For instance, infanticide is wrong in Warren’s view because even if
biological parents don’t want the child, other people do. Since 1.5 million couples are
waiting to adopt children in the United States alone, infanticide is impermissible. A
difficulty for those holding the conventional pro-choice view is that this very same
reasoning would render not only infanticide but also abortion impermissible. Not only
would infanticide prevent these 1.5 million couples from being able to adopt those
children killed, but abortion also prevents the adoption of all those who are aborted.
Thus, Warren has provided us with reason to reject both abortion and infanticide.
Warren’s other argument against infanticide, that most people don’t want infants harmed
or destroyed, could also apply to abortion. Most people support the idea of providing
good prenatal care for pregnant women, most people believe it is particularly bad to
harm a pregnant woman, and the vast majority of people feel very uncomfortable with
abortion even if they believe abortion should be legal. Many people oppose all abortions,
and among those who do not, many of these want abortion to be safe, legal, and rare.
Very few indeed see abortion as anything more than a tragic last resort, let alone a
positive good. The reason for such judgments, as well as the instinctive emotional
reaction of most people to seeing pictures of aborted fetuses, is that the human being
in utero, even if not accorded full personhood, nevertheless is in some important sense
valuable, important, and seen as a good by society. Obviously, not every single person
in society shares this general concern, but the same may also be said about concern for
newborns.
The alleged differences between abortion and infanticide supplied by Engelhardt
are invoked to answer the question: Why not also grant the fetus this social conception of
personhood, if the newborn has this status? However, his reasons to oppose infanticide
also apply to abortion. After all, if an infant deserves some modicum of respect because
it is genetically human, why shouldn’t a human fetus conceived by human parents and
within a human mother, belonging to the species homo sapiens just as much as any
newborn, also merit respect? Although a newborn is able to engage in a minimum
of social interaction, these interactions do not differ in any significant respect from
the social interaction of a fetus at a late stage of development. What is the crucial
difference in social interaction between an 8 month-old human fetus and a newborn?
Both can react to a stimulus provided by light or touch; both can invoke warm feelings
in adults (albeit the fetus can normally only be seen through ultrasound technology);
both can cry, suck thumbs, and open eyes. Although Engelhardt notes that a human
fetus can survive regardless of social recognition and that the infant cannot survive
regardless of social recognition, one wonders why social recognition should play such
a significant role. After all, one sign of a corrupt society (e.g., Nazi Germany) is that
such societies do not grant social recognition to all. In any case, our society does
grant some social recognition to unborn human beings in a number of ways through
the law (e.g., California provides free prenatal care, public signs in bars warn of the
effects of alcohol on the unborn) and through acknowledging miscarriage, especially
 WHEN DOES A HUMAN BEING BECOME A PERSON? 13

late term miscarriage, as a grave loss. The murder of Laci Peterson and her unborn son
Connor resulted in a charge of double murder. It is especially strange that the relative
independence of the human fetus (who doesn’t need societal recognition to survive) is
now used as an argument against granting unborn human beings a right to life while
most arguments for abortion, e.g. from viability, claim that the dependence of the fetus
undermines the human being in utero’s right to life.
For those who want to defend abortion but condemn infanticide, Engelhardt’s argu-
ments provide little support because his reasons for opposing infanticide apply equally
well to abortion. Although it is claimed that forbidding infanticide preserves trust in
families, one could also argue that some children would be ‘freaked out’ to learn of
a brother or sister aborted by their mother. Although Engelhardt points out that for-
bidding infanticide nurtures important virtues of care and solicitude towards the weak,
one could argue that preserving unborn human life also nurtures these virtues towards
those who are even weaker. If banning infanticide contributes to assure the healthy de-
velopment of children, why wouldn’t the same be true of banning abortion? Engelhardt
writes that there is
considerable value in protecting anything that looks and acts in a reasonably
human fashion [and that] the social sense of person is a way of treating certain
instances of human life in order to secure the life of persons strictly (Engelhardt
2000, 82).

Again it is unclear why the very same points might not also be made in respect to
abortion. As abortion advocate Judith Jarvis Thomson points out:
I am inclined to think also that we shall probably have to agree that the fetus has
already become a human person well before birth. Indeed it comes as a surprise
when one first learns how early in its life it begins to acquire human characteristics.
By the tenth week, for example, it already has a face, arms and legs, fingers and
toes; it has internal organs and brain activity is detectable (Thomson 1996, 70).

Engelhardt’s final plea for not putting unwanted infants to death is that with luck
they will become persons in the full sense and that if we harm them now we will also
injure the persons they will become later, but these rationales apply also to unborn
human beings. If not killed in utero, the vast majority of human fetuses will become
adult human beings and, similar to infants, injuries sustained to these human beings
at the beginning of life will sometimes remain injuries on through adulthood. Fetal
alcohol syndrome and “crack” babies have taught us this tragic lesson in all too vivid
detail. In sum, Engelhardt’s rationale for condemning infanticide provides reasons to
question the legitimacy of abortion.
On the other hand, those who, like Tooley, defend putting newborns to death will
find in Engelhardt’s justification of abortion an even greater justification for infanticide.
If abortion secures the convenience of women and families, the same thing could be said
of infanticide since for most women (and even more clearly for their families) a child is
much more inconvenient after birth with his or her multiple nighttime feedings, frequent
cries, dirty diapers, and soiled clothes. Before birth, none of these inconveniences
are in play. Abortion can indeed end the existence of human fetuses with serious
genetic diseases; but infanticide can eliminate not only newborns with genetic defects
(pathologies whose existence and severity is often more easily ascertained after birth)
14 CHAPTER 2

but also the significant number of infants who become injured and handicapped, often
seriously, in the process of birth itself by, for example, oxygen depravation.
Abortion secures a woman’s freedom to determine whether she will become a
mother, but so also would infanticide (as well as adoption). Following birth, with
greater knowledge about her offspring and a more realistic sense of how this newborn
impacts her life, a woman would be better able to make a truly informed choice about
whether she wanted to continue being a mother.
Abortion can help control population, but infanticide accomplishes the same goal
more effectively. Since a significant percentage (estimates range from 10% to more than
50%) of all newly conceived human beings spontaneously miscarry anyway, abortion in
such cases would be a redundancy. Secondly, given its intrusive nature and the maternal-
fetal connection, abortion carries the risk of harming a woman’s health in a variety of
ways. Unlike abortion, infanticide poses absolutely no risks for a woman’s health.
Finally, if population reduction is the goal, infanticide achieves this goal more
effectively than abortion. Biologically considered, there is an asymmetry between the
reproductive potentiality of women and men. A man can father hundreds or even
thousands of children, but a woman can give birth fewer than two dozen times in her
life maximally. If there were thousands of men and only one woman, very few children
could be born. On the other hand, if there were thousands of women and only a single
man, thousands of children could be born. Therefore, reducing the number of females
is a more effective means of reducing population than simply reducing the number of
males and females equally. Since a child’s gender is more easily determined following
birth than prior to birth, especially in low income countries without widespread access
to ultrasound, infanticide targeting female babies would be a more effective way to
reduce population than abortion of equal numbers of males and females. So if neither
human fetuses nor newborns count as persons in a strict sense, and all the reasons
given by Engelhardt for not counting human beings in utero as social persons apply
even more for newborns, we are left with a question. Why should human infants count
as persons, even in a social sense?
The one true difference that Engelhardt (as well as Warren) appeal to that actually
does distinguish infanticide from abortion is that with infanticide the human being is
no longer in the women’s body and with abortion the young human being is still within
the woman’s body:
so long as the fetus is unborn, its preservation, contrary to the wishes of the
pregnant woman, violates her rights to freedom, happiness, and self-determination
(Engelhardt 2000, 267).
However, the moment of birth
does mark the end of its mothers right to determine its fate. Indeed, if abortion
could be performed without killing the fetus, she would never possess the right to
have the fetus destroyed, for the same reasons she has no right to have an infant
destroyed (Engelhardt 2000, 267).
This conclusion, as well as Warren’s opposition to infanticide, is hard to reconcile
with the idea that a human being, even shortly before or after birth, is no more person-
like than the average fish. After all, we can kill fish as we please, without any particular
reference to the fish’s location. If the third trimester human fetus or newborn is less a
person than the average fish, then surely there is no reason to disallow infanticide in