2.3 The Potentiality Criterion

Some of the opponents of the abortion procedure may even agree that the fetus or even a zygote do not possess some properties now that may be crucial for establishing the right to life. But at the same time even a zygote has the potential to develop into an individual who will be just like us. That is an important difference with animals that do not possess this potential: and that would be why we cannot make an abortion, but can kill and eat, for example, chicken. To make it clearer we formulate the principle like this: potential possession of a right entails actual possession of a right. From my point of view, this argument entails a significant logical error.

First, if this principle is accepted, then we should make the following inference: if I have some rights now, e. g. a right to my brand new car, that was bought just three days ago, then with this principle it follows that I had the right to this particular car through the whole of my life, because it turns out that even in my childhood I have some potentiality to have this right. There can be several objections to this analogy. Firstly, it can be said that when we are talking about a zygote or a fetus, an adult human is something that the fetus or a zygote is developing into. In other words, with necessity a zygote or a fetus in the future will possess this kind of right, and that is why the analogy with the right to the car is not working properly. To answer this objection, we can give another example, which will not have this weakness.

We can imagine a person who today signed a contract that in two days she will become a member of some company. In this example, we see that after signing a contract she should become a member of the company with some additional rights, but it does not mean that already today she has this additional set of rights, e. g. she could not read a corporate mail, she could not freely walk in the office, and so on. In other words, even if I will receive some rights for sure in the future (even in the nearest future), that does not mean that I have already got them.

Another possible variation of the argument from the potential is this. When we say that a zygote is a potential adult with a certain set of rights, we mean that this zygote has a potential to become an adult. It can be said that being a zygote and an actual adult “are simply different phases in the life of one and the same living being. Since the zygote eventually becomes a human adult, this human adult is the very same individual living being that the zygote was” (Boonin 2003, 50). In a more structured way, this argument looks like this:

1. I am the same individual living being as the zygote from which I developed.

2. I am a person.

3. A zygote was a person.

But in this formulation, there is a problem with the logical structure, because between the first two premises there is another implicit premise without which this argument will not be valid. This third preliminary statement should sound like this:

1*. If someone possesses some property in one time, then he will possess this property of every time of his existence.

But this sentence is very questionable, because, for example, I can now possess lots of different properties like being bold, greedy, married and so on, but it definitely will not be true to say that all of this properties I had or will have throughout all of my life.

It can be said also that being bold or greedy are not essential properties. But if we use term essential property instead of property in the 1*, then this statement will definitely be true. But then to make the whole argument true, we should also add another premise:

2*. Being a person is an essential property.

Then now the whole argument is sound like this:

1. I am the same individual living being as the zygote from which I developed.

1*. If someone possesses some property in the one period of time, then he will possess this property in every period of the existence.

2. I am a person.

2*. Being a person is an essential property

3. A zygote was a person.

But even in this variation the argument will not work. The problem now is with the term “person”. The question is in which way we can say that being a person is an essential property? There are two possible ways of interpretation: biological and moral.

According to the biological interpretation, when we say that being a person is an essential property, we mean that it is a member of the homo sapiens species. But as we saw previously in the human being criterion part, it is not enough to say that someone is biologically human or biologically woman. With this interpretation the argument fails.

According to the moral interpretation, when we are talking about being human, we mean that a person has a right to life, which is essential: I have had this right, and I will have it in the future. In this interpretation the argument can work, but the problem here is that opponents of the abortion do not grant us that this is true. Moreover, I want to say that this argumentation bumps into a kind of logical circle. The whole discussion started from the question when and why the fetus receives a right to life, and it is weird to end the discussion with the statement: We have a right to life throughout our life. For there is still no answer to the question “Why?”

We should also mention another counterargument to the potentiality criterion. This argument is based on the counterintuitiveness that arises if we attribute some potential to those who we know now does not have it.

This kind of example was given by Jeff McMahan:

Suppose we were to discover that dogs have always had the potential to develop cognitive capacities comparable to those of a normal five-year-old child, but that this potential has never actually been realized because that would require subjecting the dog from earliest puppyhood to an intensive daily regimen of `cognitive therapy' for the first five years of its life (McMahan 2007, 15).

If we accept the potentiality criterion it seems that we are obliged to treat dogs as possessing some set of rights that coincides with the set of rights of an actual five-year-old children. But I doubt that most of people will accept this logic: the inference seems counterintuitive. Rather, people “would conclude that only those dogs, if any, in which this potential had been realized would have that higher status” (McMahan 2007, 15).

Given this counterintuitiveness and the objections to the argument that were mentioned earlier, we should reject the potentiality criterion.

2.4 The Viability and Birth Criteria

In this section we will consider other two criteria that can become a possible boundary line between the absence and presence of the right to life.

When we are talking about viability, we mean the fetus's ability to live outside the womb. The viability is usually placed at about 7 months or even earlier because of the progress of medical technology. The most important thing is that being viable can be important in a way that makes you more or less independent. The opponents of abortion suggest that the fact that you are independent is morally significant for you to be a person. There are also other differences that take place, for example, “the pre-viability fetus is too intimately involved in the body of his mother to be a real person on his own” (Schwarz 2012, 110). But even if we accept this argument, this difference may be important only for the discussion of the Thomson argument, especially for the Necessity objection that was discussed earlier in the first chapter.

But there are lots of difficulties with this criterion. First, it should be mentioned that the viability criterion, even if there were no objection to it, can only justify the prohibition of late-term abortions, which are the minority of the cases, “only 1.3% of abortions occur after 21 weeks” (Steinbock 2011, 101).

Second, the viability criterion definitely cannot appeal to this scheme:

1. A person has a right to life.

2. Being viable makes you a person.

3. The viable fetus is a person.

4. The viable fetus has a right to life.

The problem here is with the second item. Animals are viable but we do not count them as persons. So, the second premise is false, and the argument does not work in a way that it should be.

Third, the problem in the criterion itself. The moral status is a rather intrinsic value, it is not dependent on some external things but on some internal properties that subjects possess. When I say that I have a right to life that means, first, that everyone who shares the same characteristics that I have, should have this right, and secondly, I have this right in any place and in any time, given that my internal characteristics are not changing.

And exactly at this point there is a problem. Being viable is an external characteristic and does not depend on the subject. Different subjects are viable in the proper environment, and when we say that viability is the criterion for having rights, that seems confusing. For example, I am not viable on the moon or underwater. Should I conclude that there everyone can kill me, because underwater I am not viable, and, therefore, I do not have a right to life? I definitely think that an answer in this situation is “No”.

Another question that some authors address is “can personhood be a concept relative to and dependent on technology?” (Cooney 1991, 161). So from this perspective the “viability is a function of medical technology. It measures our ability to sustain human life, not the status of that life” (Schwarz 2012, 112). Moreover, if we accept this criterion, we will discover that two people with the same internal properties may have different moral status, for example, if poor persons cannot pay for new medical technologies to sustain the life of theirs infants, that means that two identical infants lying near each other in the same hospital may have different moral status because of the different income of their parents, but that is extremely counterintuitive and absurd.

So maybe the point we are searching for is the moment of the birth? This criterion does not have the weaknesses of the viability criterion: being born is the internal property that is essential and cannot differ in different circumstances. You can be born only once and then you will always have this property. The question that we should ask is: what are the differences between a viable fetus and a neonate?

As it was mentioned earlier, a fetus becomes viable greatly before birth. “The point at which some fetuses have survived premature birth has become a little less than 22 weeks” (McMahan 2013a, 274). It means that nowadays there can be situations when during the period of the 5 months the only difference between fetus and neonate is its location. To illustrate it let us consider an example introduced by Jeff McMahan:

Sudden birth: Imagine that doctors discovered a congenital disease in the late term of pregnancy and suggested to make an abortion. That evening, the woman decided that she would go for an abortion tomorrow morning. At night, unplanned childbirth begins, the child is born. The question that McMahan asks: What has changed in the moral status of the fetus/newborn, what really happened to him? (McMahan 2013b).

The only logical answer in this case that we can give is that the fetus changed its position. But if we accept this, there are lots of questions that seems hard to answer. Should we give the right to life to a fetus that is 50% in the womb and 50% out of it? Or should we treat as human a fetus that is 99% out of the womb? What is happening with the fetus when it comes out of the womb by another 1%? And moreover, why is this 1% morally significant? The proponents of this criterion do not give us persuasive justification. But also we see that the fetus inside the womb has no rights, and the newborn outside the womb has these rights, but then the criterion of birth does not differ at its base from the viability criterion, which, as we have seen, provides the basis for the right to life to appear or disappear, depending on where the person is located. For lack of sufficient evidence of moral significance of the location property, we should reject the birth criterion as well.

2.5 The Immorality of Killing You and Me

There is another possible approach that may help us understand why and when we start to possess the right to life. To find this boundary we should answer a question that is tightly related to the right to life: why it is immoral to kill a human being like me?

In this part I will consider two possible answers, each of which gives its own argument, proving its own point, starting with which, we can assume that the subject begins to have the right to life. The first approach is related to Don Marquis's account to the set of experiences that constitutes the personal future, and the second approach relates to Michael Tooley's account of the concept of a self as a continuing subject of experiences and desires. We will start with Marquis's approach. There are two reasons for that: first, I think that this argument is invalid, and second, Marquis in his own argumentation criticize Tooley's approach.

What Marquis tries to do first is to give an answer to why is it wrong to kill us. Marquis offers a very simple idea:

When I am killed, I am deprived both of what I now value which would have been part of my future personal life, but also what I would come to value. This being the case, it would seem that what makes killing any adult human being prima facie seriously wrong is the loss of his or her future (Marquis 1989, 190).

What makes Marquis's argument different from other potentiality arguments? The point is that when we say that the fetus has a valuable future, this is not a potential property, this is a property which we already actually possess. That is why the counterargumentation that we used previously will not work. To give a successful counterargument to the future-like-ours (FLO) argument, we should make three things: first, find another reason why it is wrong to kill us, second, show why Marquis's reason is more arguable than our new criterion, and third, show that our new property gives us a reason to make a different conclusion about the presence of the right to life of the fetus.

In the first step of our analysis, we should agree with Marquis in a way that what makes killing us definitely wrong is the harm that is caused to us by this action. To make it clearer, we should say more about the connection between rights and harm.

To determine has someone or has not a right, we should understand when this right is received and when it disappears. The necessary criterion for the absence of the right of someone is the appearance of harm when someone loses the right. In other words, in order for us to consider that someone was hurt, he must receive harm or deferred harm. If we cannot say that the subject receives harm or deferred harm, we cannot talk about the violation of his right.

When we talk about the right to life, we must say that, in the same way, a person must suffer from the fact that we deprive him of this right. It is important that the right to life is different from the right to the absence of pain, free movement, the right to the absence of torture, etc. The right to life is determined by the fact that a person has certain desires, intentions, goals, and projects. That is what a person loses when he is deprived of the right to life. This is not just an unknown future. As Tooley formulates this: “An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity” (Tooley 1972, 44).

Marquis tries to give a counterargument noting that there are temporarily unconscious people, sleeping people, or those who are suicidal. If we agree with the desire account, we should agree that those who do not have desires at this exact moment do not possess the right to life, but that is implausible. Boonin has a response to this objection. Most of our desires are dispositional, “we are not currently aware of them, or thinking about them, but they are still things we want, and would attest to this if asked and if we could respond” (Steinbock 2011, 67). In other words, a person should be capable of understanding her own personal future. And if this person has already formulated to herself this future, then being asleep or being temporarily unconscious, or even having received some mental disorder, changes nothing in considering her plans and desires. Being asleep or in coma cannot cancel the fact that these desires have already been established.

That is why the counterargument that is given by Marquis is not working. Moreover, if we return to the thesis of Marquis himself, we will see that Marquis's thesis that we value just the future is not true. Rather, we are ready to accept the fact that such an order of things in the future, which we ourselves consider valuable, is valuable for us. The example of suicide shows that it is not enough for us to simply potentially have some kind of future. It is important that this future coincide with what we have established for ourselves. That is why I think that we should reject Marquis's criterion in favor of the “conscious desires” criterion.

2.6 Conclusion

The consequence of acceptance of this criterion is acceptance of abortion. Because the fetus or zygote cannot possess any aims or expectations, it follows that both of them do not have the right to life. The question is: are there any differences between the fetus and the neonate?

It seems to me that there are no any morally important differences, remembering that nowadays within about 5 months a human being can be either a fetus or a child only depending on its location. It should also be said that of course we do not know exactly when an infant is starting to have self-awareness, and that should be a matter for detailed psychological investigation, but it seems clear now that there is at least a small period while a neonate does not have this sense. “It might start having expectations and develop a minimum level of self-awareness at a very early stage, but not in the first days or few weeks after birth” (Giubilini and Minerva 2013, 262).

Because there are no morally significant differences between the fetus and the neonate, we should agree with the possibility to kill a neonate in all the same circumstances where we think abortion is possible. I do not claim that an infanticide is a very good thing to do, but I claim that it is a procedure analogous to abortion from a moral perspective. In the next chapter, I will try to show why this inference is not as counterintuitive as it might at first appear to be. Moreover, I will try to show that in some cases our intuitions will even tell us that we obligated to kill a neonate.

3. Infanticide and Intuitions

If in everyday discussion we start to talk about infanticide, most of us will definitely say that this is unbelievable to agree with the position that infanticide is somehow possible. Sometimes the same we can hear even from the scientific articles that “advocating infanticide or its moral permissibility is moral madness - killing babies is not something we should consider” (George 2013, 300). To reject this practice seems as the natural reaction for the majority of the population. Even those who considers themselves as strong supporter of abortion (including late-term abortion as well) very often says that the practice of infanticide is immoral. But why?

First, simply the neonates are just like us. Pretty face, smile, two hands and two legs, and so on. Our brain is playing a tricky game with us. We think that if the subject looks like us, then this subject should have the same amount of rights and feelings like us. But, of course, this logic is fallacious, and also in the case of the newborn, that is definitely not true, as we have seen in the second chapter. Secondly, that is why we do not care so much about a fetus even on the second and third trimester - we cannot feel so much empathy toward a fetus. We cannot see him crying, smiling, moving, and so on. Thirdly, most of us do not think that sometimes killing can be either more humane or not so unambiguously wrong.

3.2 Do We Have Practices of Infanticide Now

Despite the complexity of the infanticide issue, already now there are some cases where infanticide practices are accomplished.

First of all, we should mention the Groningen Protocol in the Netherlands, “which permits doctors to actively euthanise terminally ill infants who are deemed to be in a state of unbearable pain” (Manninen 2006, 643). So if the quality of the future life will be very low because of the severe sufferings that give no prospects for a future to this newborn, the doctor may kill this infant (also there should be consent of the parents and no possibility that this newborn can be cured).

Another example is the lethal separation of conjoined twins. For example, in the case of conjoined twins Jodie and Mary, “who were joined at the lower abdomen. They can be successfully separated. But the operation will kill the weaker twin, Mary” (Savulescu 2013, 257). In this case the court said that the operation is permissible. The High Court was using a very utilitarian logic here, it is better to save one person than lose both. But let us imagine the same situation not with the neonates, but with the adults that already have their own aims and experiences. Will we find now the situation of the compulsory operation in which one of the twins will later die just as possible? I doubt it.

What I want to emphasize in this part is that as a matter of fact we do not count infanticide as an a priori terrible practice. Moreover, sometimes even our common sense tells us that we should kill a newborn because it is inhumane to make him permanently suffer. So, the first conclusion that I want to draw is that actually we do not have a single intuition about this practice - everything depends on the specific situation.

3.3 Is Infanticide Necessary

But even if we agree that there are some situations when infanticide seems rather intuitively acceptable, an opponent of this practice may say that we already have lot of tools that can help us to even avoid such situations as a children with anencephaly or other congenital disease - we can make the diagnostics of the fetus and identify the defect at an early stage, which would be an indication for abortion.

That seems reasonable, but there are plenty of cases when this objection does not work. The first problem is connected with diagnostic methods. Not all diseases are accurately diagnosed during pregnancy, for example, data from the European registries shows that from 2005 to 2009, Down syndrome was diagnosed only in 64% of cases (Giubilini and Minerva 2013, 261). Moreover, it should be mentioned that part of diagnostics for quite rare diseases is too expensive and not everyone can afford it. The second problem is that even if we imagine an option in which all possible diagnostics were carried out, we may face the problem of getting disabilities during childbirth, for example, complications caused by perinatal asphyxia. abortion ethics moral

In other words, we see that there is a wide corridor of opportunities for infanticide procedure. We cannot avoid all the circumstances that will put us in a position similar to those indicated above.

3.4 The Can and Should Distinction

As we saw earlier our intuitions toward infanticide differ. We can agree that sometimes this practice can be justified, but despite this we have a fear toward this practice. I think that one of the reasons of it is that people confuse principles and grounds for decision making. To say that “it is morally justified to kill a newborn” is not analogous to the “you are obliged to kill a newborn”. It is a necessary principle, without which we will not be able to make subsequent decisions. If there is no basis for this action, it does not matter to us how much good it can bring. We do not cut people into parts, forcibly making them organ donors, just because we can save more people with these organs than will suffer as a result of this operation. We do not do this, because we have no ground to kill a person, despite the fact that it would bring us more benefit in the end. This is because weighing the final benefit is only a decision-making process, but not the ground, which gives us options between which we will choose in the future.

The same situation we see in the case of infanticide. As it was mentioned, there is a big history of the debates about the permissibility of killing the severely ill or disabled newborns. What Giubilini and Minerva is making is an extension of “the long-running debate on infanticide asking: if abortion is permissible both for social as well as medical reasons, why is infanticide permissible only for medical reasons (assuming that selective non-treatment is a form of infanticide)” (Savulescu 2013, 258)? What I want to say that if we accept the position that an infanticide is acceptable even for some non-medical reasons, it does not mean that we should do that in every case. For example, if there is a good option connected with adoption, when a good and wealthy family will have an intention to take care for this newborn why should we kill it? I am sure that in most cases we will say that we should not kill it. But this will happen not because we cannot do it in principle, but because between two equally possible options, we must choose the best one.

3.5 Conclusion

I mentioned that the counterintuitiveness of the theory may cause a big problem for this theory. What I want to show in this chapter is that this practice is not so univocal as it seems at first glance. The standard move for the opponents of the moral status argumentative strategy is to say that the permissibility of infanticide is akin to reductio ad absurdum. But we see that this attempt fails. We see that our intuitions do not give us an unequivocal answer that infanticide is terrible in all circumstances, and that the very thought of this is absurd.

So, now we have a situation where, as matter of fact, we have two rival moral theories: one is the theory that bases its decision on moral status (MST), and the second is the theory that bases its decision on the common sense (CST). The question is: why should we adopt the first theory and reject the second?

As I have said, the theory should start from the attractive general beliefs or, in other words, the theory should be at least somehow intuitively acceptable. Moreover, the theory should be internally consistent, and should also help us to deal with the questions about which we do not agree. Both of the theories are based on the intuitively appealing suggestions (I showed it for the MST, and it is quite obvious for the CST), but only the first theory can help us to deal with the equivocal situations. The fact that MST is a consistent theory makes this theory explanatory. And only a coherent theory may help us come to an agreement, because “unless we have a coherent explanation of our moral principles, we don't have satisfactory ground for believing them to be true” (Kagan 1989, 13).

Conclusion

In this work I set myself three goals: to show the problem of the Thomson argument, to show that the argumentation from the moral status is correct, and to give satisfactory explanation that our intuitions are compatible with the practice of infanticide. The first and the second aims were preliminary steps for the third step that is the most important.

I showed that the most significant responsibility objection really indicates that Thomson argument cannot prove the woman's lack of responsibility if sex was voluntary. And moreover, I showed that even if the responsibility objection to the Thomson argument does not work, the argument becomes counterintuitive, because the same argumentation can be applied not only to the fetuses but to the adult children as well. According to this argumentation, we are not obliged to feed our children, to give them our care, in other words, we can let them die.

In the second chapter, I tried to give a satisfactory counterargumentation to the potentiality and the future-like-ours argument. But the more important conclusion of the second chapter is that from the argument from the moral status with necessity follows the recognition of the permissibility of committing infanticide.

On the first glance it may be said that if a theory accepts such practice as infanticide it automatically means that this theory should be rejected. That is why an attempt to find a convincing explanation of why this practice is not counterintuitive is crucial for the theory. The third chapter gives us two potential explanation why it is so.

First, we see that this practice can be treated differently depending on the circumstances. I tried to prove that, in general, we have no problems with the principle: we agree that infanticide can potentially be realized. Rather, we are ready to argue with the reasons for the action, which may be permissible or unacceptable for the realization of various options, including infanticide. Secondly, I showed that along with the moral status theory, which coincides with a part of our intuitions, there is a second theory, which also coincides with our intuitions - the commonsense theory. However, we see that this theory is random and inconsistent. The theory of moral status is deprived of this lack, therefore, since it also partially coincides with our intuitions, and it also has explanatory power, we must follow this theory, and not the commonsense theory.

Also, there is another implicit conclusion, which should be pointed out. The moral status theory shows us that abortion and infanticide are actions of the same moral order. This means that we must treat abortion as carefully as it does with infanticide. Just as in the case of infanticide, we should consider abortion only as one of the possible options, which is not always the best and therefore should not always be realized.

The abortion issue is one of the biggest unsettled issue in practical ethics. What I want to say is that if we really want to find a solution to this problem, we should be consistent in our theoretical constructions and, as well, be ready to reject some of our initial intuitions. It is a long and difficult way, but I am sure that even this way must have a satisfactory end.

References

1. Boonin D. A Defense of Abortion. New York: Cambridge University Press, 2003, pp. 350.

2. Cooney W. The Fallacy of all Person-denying Arguments for Abortion // Journal of Applied Philosophy. 1991. 8(2), pp. 161-165.

3. Coulter G. J. Vulnerability, Dependence and Abortion: A Reply to J. J. Thomson // Twenty-Seventh Annual Conference "Life and Learning XXVII" (June 9-10, 2017) University of St. Thomas School of Law Minneapolis, MN, 2017, pp. 239-257.

4. George R. P. Infanticide and Madness // Journal of Medical Ethics. 2013. 39(5), pp. 299-301.

5. Giubilini A., Minerva F. After-birth Abortion: Why Should the Baby Live? // Journal of Medical Ethics. 2013. 39(5), pp. 261-263.

6. Hooker B. Ideal Code, Real World: A Rule-Consequentialist Theory of Morality. Oxford: Clarendon Press, 2000, pp.213

7. Kagan S. The Limits of Morality. Oxford: Clarendon Press, 1989, pp. 415

8. Levels M., Sluiter R., Need A. A Review of Abortion Laws in Western- European Countries. A Cross-National Comparison of Legal Developments Between 1960 and 2010 // Health Policy. 2014. 118(1), pp. 95-104.

9. Manninen B. A. A Case for Justified Non-voluntary Active Euthanasia: Exploring the Ethics of the Groningen Protocol // Journal of Medical Ethics. 2006. 32(11), pp. 643-651.

10. Marquis D. Why Abortion is Immoral // The Journal of Philosophy. 1989. 86(4), pp. 183-202.

11. McMahan J. Infanticide // Utilitas. 2007. 19(2), pp. 131-159.

12. McMahan J. Infanticide and Moral Consistency // Journal of Medical Ethics. 2013a. 39(5), pp. 273-280.

13. McMahan, J. 2013b. “Interview on Infanticide”. Journal of Medical Ethics. http://jeffersonmcmahan.com/wp-content/uploads/2012/11/JME-podcast-infanticide-is-sometimes-justified.mp3.

14. Savulescu J. Abortion, Infanticide and Allowing Babies to Die, 40 Years On // Journal of Medical Ethics. 2013. 39(5), pp. 257-259.

15. Schwarz S. D. Understanding Abortion: From Mixed Feelings to Rational Thought. Lanham: Lexington Books, 2012, pp. 215.

16. Sedgh G., Henshaw S., Singh S., Еhman E., Shah I. H. Induced Abortion: Estimated Rates and Trends Worldwide // The Lancet. 2007. 370(9595), pp. 1338-1345.

17. Silverstein H. S. On a Woman's “Responsibility” for the Fetus // Social Theory and Practice. 1987. 13(1), pp. 103-119.

18. Singer P. Practical Ethics. 2nd ed. Cambridge: Cambridge University Press, 1999, pp. 395.

19. Steinbock B. Life Before Birth: The Moral and Legal Status of Embryos and Fetuses. 2nd. ed. New York: Oxford University Press, 2011, pp. 311.

20. Thomson J. J. A Defense of Abortion // Philosophy and Public Affairs. 1971. 1(1), pp. 47-66.

21. Tooley M. Abortion and Infanticide // Philosophy and Public Affairs. 1972. 2(1), pp. 37-65.

Размещено на Allbest.ru