Foetus Rights

Twenty years ago abortion was illegal in most countries and nearly always hazardous: today it is legal in most developed countries and a routine medical procedure. It is hard to think of another goal of the reforming movements of the last two decades which has been so widely achieved.

The change has not happened without debate at every level from the popular demonstration to the philosophical journals. At each level the fundamental confrontation has been between those who demand respect for ‘a woman’s right to choose’ and favour permissive abortion policies, and those moral or religious conservatives who seek to protect the ‘right to life’ of the foetus against liberal abortion legislation. The liberal and feminist debaters have had covert allies: liberals pursuing the recognition and autonomy of other groups were hardly going to query women’s ‘right to choose’, while in the background fears of population explosion made permissive abortion legislation appear prudent as well as progressive. It is fortunate for the liberal and feminist side of this debate that they had these allies – for their arguments were not convincing.

L.W. Sumner’s depiction of these long debates displays clearly how inconclusive they have been. The liberal view, as it has repeatedly been elaborated, sees abortion fundamentally as a private matter: since the foetus is not a person and lacks ‘moral standing’, it cannot have moral claims against its mother, or mother-to-be. There is then, on a liberal view, no justification for legislative intervention in this essentially private domain. The conservative view, by contrast, begins from a recognition that the foetus has moral standing, hence is injured, indeed fatally injured, by abortion. Since, on the conservative view, abortion is an interpersonal matter, legislation is appropriate and required to protect the rights of the weaker party. Public policy cannot be permissive here, and those who seek abortions must be seen as embarking on intentional killing. The liberal view sees abortion as barely different from contraception: the conservative as no different from infanticide.

It might seem that this debate can readily be arbitrated. On the surface, we have merely a disagreement over rights: a conflict between the woman’s right to autonomy and the foetus’s right to life. But as dissected by Sumner, these positions are far apart. Beneath the dispute over the priority of different rights is the dispute about the moral status of the foetus. To make their claims about the scope of women’s autonomy convincing liberals need to demonstrate that the foetus lacks moral standing: to make their claims about the foetus’s right to life convincing conservatives need to show that the foetus has (considerable) moral standing. Rhetoric apart, both parties have ducked this central and indispensable stage of the argument.

The problem of moral standing surfaces in many other debates in contemporary ethical writing. An account of moral standing must form part of our views on euthanasia and on permissible relations with the animal kingdom. But nowhere is the issue closer to the surface of popular discussion than in the abortion debate. If the abortion debate is to be settled we need a convincing account of what is required for being a moral patient. Moral agency clearly requires a reasonable range of cognitive and rational capacities. Some moralities, above all those which see duties done as reciprocation for rights respected, identify the requirements for being a moral agent and those for being a moral patient. On such theories all but relatively mature and normal humans lack all moral standing. If we are to see our relations with the immature or abnormal or non-human as in any measure moral relations, then we must seek a dual account of moral standing, which regards some beings who are not competent as moral agents as having moral standing, and so as entitled to certain rights or consideration or treatment.

Sumner castigates both liberal and conservative arguments on abortion for failing to address the question of the moral standing of the foetus seriously. This question could be disregarded only if it were clear that whatever the foetus’s rights, they are overridden by the mother’s liberty rights. But such a libertarian insistence on the priority of the liberty rights of the fully autonomous has not been a common feminist or even liberal position. Most of those who have argued for a permissive abortion policy accept that not all rights are liberty rights and do not in general restrict moral standing to the fully rational and autonomous. Hence they must show why the foetus lacks all moral standing. This they have not done. Nor have they explained why the moral standing of the foetus is radically different from that of the new-born infant. In fact, most advocates of permissive abortion policies have not espoused a determinate theory of rights, and have said nothing about the transition to moral standing. A slight advance has been made by arguments which aim to bypass the issue of moral standing by showing that even if the foetus has some rights, it does not follow that these must override the mother’s rights: but this position, too, has been only schematically developed. Liberal claims remain unconvincing until we know the moral status of the foetus.

Conservatives have done a little better. Most have shown some awareness that the foetus’s ‘right to life’ must be vindicated and not just asserted. But the vindication offered is often no more than a reminder that there is a duty not to kill without reason any creature with moral standing, coupled with the assumption that the foetus, like the infant, falls within the scope of this duty. Like liberals, conservatives have generally not shown which characteristics confer moral standing. Merely being alive can provide no criterion of moral standing which is not unreasonably broad: the criterion of rationality, however, confers moral standing on too few humans. Conservatives, moreover, must connect moral standing to some feature which a foetus has or comes to have while still a foetus rather than to one which it will have after it is born, if they are not to end up claiming that whatever has the potential for the characteristic which brings moral standing (including the egg and spermatozoon) has the same rights as the foetus.

Sumner’s account of the abortion debate is fair and lucid. The criticisms of the arguments for both permissive and restrictive abortion policies are apt, and the main conclusion about the lack of attention to the basis of moral standing is persuasive. A plausible further conclusion might be that the metaphysical agnosticism of much recent writing in substantive ethics has cost too much. But this is not Sumner’s conclusion. He hopes to use the methods of contemporary substantive ethics to provide an account of the moral basis of an abortion policy and of abortion decisions which is neither unargued nor likely to generate conclusions which are strongly counter-intuitive. In his view, the methods of contemporary moral philosophy are adequate to the task.

Sumner’s method is not to go back directly to the metaphysics of personhood, nor is it to ponder the standing of the foetus, but to apply the now familiar technique of seeking a ‘reflective equilibrium’ between ‘our considered moral judgments’ and some moral theory. This method, by Rawls out of Chomsky, is supposed to reveal the deep structures which partially surface in our considered moral views. To use the method we must begin by identifying what these views are: they are to serve as the data which an adequate theory must reveal as coherent. We might observe that in the case of abortion there is no shared or consensus view. Sumner, however, claims that a considered view reveals a difference between early and late abortions, the latter being generally thought close to infanticide and wrong and the former close to contraception and permissible. Our considered view, according to Sumner, is that moral standing is gradually acquired. Plainly this is not universally believed, or there would be no fundamental disagreements about abortion policy. Moreover, even if some such view were universally held, it is not clear why it should be thought criterial for a good moral theory that it has the capacity to generate, or at least reveal the coherence of, a shared view. Some theory or other might provide a deep structure for racist beliefs which were generally, if not universally held. This would not of itself make it a plausible moral theory nor provide a moral vindication of racism. Unless we are conventionalists, majority views, and even universally-held considered views, can have no guaranteed standing. Sumner, in company with others who construct reflective equilibria, spends no time vindicating the method.

Sumner’s account of moral standing is that moral patients must be sentient and may, but need not, also be rational. Some moral patients may not be moral agents. Sentience, on Sumner’s reading of the neuro-physiological evidence, emerges in the second trimester of pregancy. First-trimester abortions harm no moral patient; third-trimester abortions harm a moral patient, and the second trimester is an interval rather than a point of transition. Permissive policies are, then, in order for early but not for late abortions.

If sentience is the basis of moral standing, and underlies ‘our’ considered moral judgments, then the moral theory which generates these judgments and constitutes their deep structure must be one which takes sentience seriously. Not surprisingly, the theory which fits the bill turns out to be a version of Utilitarianism. Sumner’s conclusion is that ‘a classical [utilitarian] theory with an indirect account of moral rules, and thus of moral rights and duties, is the deep structure of a moderate, differential view of abortion.’

A number of difficulties arise on the way to this conclusion. In the first place, Sumner has to show why sentience is the basis of moral standing. He suggests that only the sentient can be ‘beneficiaries or victims in the morally relevant sense’. But this shows only that once benefiting and harming are taken as the central moral relationships, sentience becomes important (but perhaps not the only important criterion of moral standing). Sumner’s claim that sentience is the basis of moral standing does not corroborate his Utilitarianism, but is rather a corollary of adopting a Utilitarian perspective. To demonstrate that sentience grounds moral standing sterner stuff is needed. Bentham provided this when he based Utilitarianism on an explicit picture of human mentality and action. If the ‘two sovereign masters’, pain and pleasure, govern what mankind does and ought to do, we can understand at once why sentience is fundamental to moral standing. But without the full Utilitarian metaphysic of self and action, the appeal to sentience is an appeal to a moral intuition which those who take an entirely permissive or an entirely restrictive view of abortion policy and decisions will not share.

The Utilitarianism which Sumner develops is of the humane rather than the calculating variety. Bentham’s felicific calculus and its modern counterparts are rejected in favour of approximate calculation and comparison of the costs and benefits of alternative proposals. The tendency of forms of Utilitarianism which focus on acts to sanction the exploitation of some for the benefit of the majority is rejected in favour of an indirect Utilitarianism applied to rules. Rule Utilitarianism, however, has been widely and effectively criticised. It fails to overcome the most distressing tendency, so apparent in Act Utilitarianism, to sanction the sacrifice of some for the good of others. A system of rules which produces the greatest benefits may yet be one which unjustly and systematically exploits or sacrifices some group or minority. It is, however, not even clear that Sumner entirely rejects Act Utilitarianism, since he writes that ‘there will be utilitarian justification for violating even these loose and qualified rules in some particular cases.’ Such cases supposedly arise only when one rule (with Utilitarian justification) conflicts with another (also with Utilitarian justification). But if such calculations are possible, then what we have will be extensionally equivalent to Act Utilitarianism. On the other hand, if such calculations are not possible, and conflicts between Utilitarianly justified rules must be settled as best we may, we are left with an ‘Intuitionism of Rules’, and hence also an ‘Intuitionism of Rights’, which Sumner explicitly rejects as no more than a ‘concession that the moral life is incapable of unification around any central principle or value ... a theory of last resort to be embraced when all others have been discredited.’ Indirect Utilitarianism does not successfully ‘avoid both the rigidity of absolutism and the indeterminacy of intuitionism without sacrificing the essential protection of the integrity of individuals’. However, it is possible to formulate indirect Utilitarianism sufficiently vaguely for it to be obscure which trouble we will land in. If Sumner allows for Utilitarian resolution of conflicts between rules and rights, the theory will face the classic Utilitarian problems over justice and the use of some as means to the welfare of others: if he does not, the theory resorts to Intuitionism for the hard cases.

Sumner’s optimistic belief that Utilitarianism can solve the problems of abortion, and moral problems in general, may be misplaced: even so, the book is an excellent, frequently revealing and always full account and critique of a long, rambling, and often intemperate debate. Even the defence of Utilitarianism might be made more plausible by a small revision in Sumner’s stated conclusion. Sumner has plausibly shown that Utilitarianism is a theory which can be held in reflective equilibrium with a moderate view of abortion and the view that sentience is the basis of moral standing. But this does not show that Utilitarianism is the foundation or the deep structure of a moderate view of abortion. To establish that point would require an argument to show that only Utilitarian theory can articulate the underlying coherence of a moderate view of abortion. To establish a case to which those whose considered views on abortion are not ‘moderate’ must listen would require far more than the establishment of a reflective equilibrium, and would have to include a rebuttal of the many serious objections that have been raised even to humane and indirect forms of Utilitarianism.