II THE THRESHOLD OF PERSONHOOD

Table of Contents:

Personhood Thresholds, Arbitrariness, and ‘Punctualism’

Thresholds of Personhood

The discussion in Part I was meant to establish one main thing: that a sound moral or legal basis for abortion rights cannot bypass the question of the moral status of the human fetus. The permissibility of most abortions does indeed depend upon that status and upon whether the fetus qualifies as a fellow person. After surveying some of the main attempts by defenders of abortion rights to strip the personhood question of most of its relevance, I concluded that those attempts ultimately fail. In sum, those seriously engaged in ethical and legal reasoning about abortion must confront the fetal personhood issue and make up their minds about it.

Still, it is little wonder that some discussants have made such concerted efforts to sidestep that question. How does one even begin to make persuasive arguments about whether or not the human fetus is a person? Whether it belongs to that class of beings or not is a fact which, for many, is simply self-evident, resisting systematic argument. Roger Wertheimer believed that the sheer self-evidence of the fetus’s lack of personhood in the eyes of supporters of abortion rights is a key reason why they ‘so consistently fail to make contact’ with the terms of the anti-abortion challenge.¹ He wrote:

He [the supporter of abortion rights] doesn’t know how to respond to the argument [that the fetus is a person], because he cannot make sense of that premise. To him, it is not simply false, but wildly, madly false, it is nonsense, totally unintelligible, literally unbelievable. Just look at an embryo. It is an amorphous speck of coagulated protoplasm. It has no eyes or ears, no head at all. It can’t walk or talk; you can’t dress it or wash it. Why, it doesn’t even qualify as a Barbie doll, and yet millions of people call it a human being, just like one of us. It’s as if someone were to look at an acorn and call it an oak tree, or, better, it’s as though someone squirted a paint tube at a canvas and called the outcome a painting—a work of art—and people believed him. The whole thing is precisely that mad—and just that sane. The liberal is befuddled by the conservative’s argument, just as Giotto would be were he to assess a Pollock production as a painting.²

1 Roger Wertheimer, ‘Understanding the Abortion Argument’ (1971) 1 Philosophy and Public Affairs 67.
2 ibid 73-4.

Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.

Of course, opponents of abortion who attribute philosophical personhood to the human fetus often think their position equally self-evident to any reasonable person assessing the facts. In their defence of embryo rights, Robert P George and Christopher Tollefsen present a real-life tale from the 2007 Hurricane Katrina disaster, in which a team of rescue officers entered a flooded hospital and salvaged fourteen hundred frozen embryos in canisters of liquid nitrogen.^[1] George and Tollefsen take it that had the officers never made it to the hospital, ‘there can be little doubt that the toll of Katrina would have been fourteen hundred human beings higher than it already was ... ’ In this passage, the authors’ use of the term ‘human being’ is clearly meant in the moral, rights-holding, sense—the ‘person’ sense. But this proposition, which they believe can hardly be doubted, is the very same one which supporters of abortion rights think not only incorrect, but, in Wertheimer’s words, ‘literally unbelievable’ and ‘wildly, madly false’.

As one might expect, appeal to sheer self-evidence is symptomatic of great difficulty in marshalling arguments about prenatal personhood. But why is that task so immensely difficult? A large part of the answer is that arguing about fetal personhood requires one to define personhood universally. What is it that makes us persons with the moral rights that we possess? Is personhood status a matter of capabilities, or some sort of essence? Is it human species membership which is the defining characteristic of a person, and if so, why? The problems inherent in these questions clearly extend far beyond the abortion debate. They go to the very heart of our beliefs about what kind of beings we are, what makes us uniquely valuable (if anything does), and why we possess the interests and rights we do, including the fundamental right to life. Given the deep-rooted nature of disagreement about our own metaphysics, it is hardly surprising that disagreement about personhood at the beginning of life is so intractable.

Those with some exposure to academic argument about abortion will be familiar with the conventional discourse surrounding fetal personhood. Contestants on both sides begin by singling out a particular biological, psychological, or, in some cases, sociological benchmark in the career of the emerging human, which they regard as transformative: conception, implantation, quickening, viability, consciousness, birth, rationality, and so on. The relevant benchmark is then offered up as the threshold of philosophical personhood. The favoured threshold will be taken to mark the beginning of personhood, but an argument will need to be made that it corresponds to a criterion (or criteria) that constitutes personhood.

The relation between the threshold of personhood and the criterion of personhood might be different depending on the argument. The threshold could be treated as evidence for the emergence of the criterion, for example where the development of certain brain structures is taken to be evidence for the capacity to form conscious desires—one proposed criterion of personhood. Alternatively, the threshold and the criterion might be one and the same thing, for instance where birth is put forward as the threshold of personhood on the ground that having being born is constitutive of personhood. Or the two may be thought to generally coincide, for example where the threshold for personhood is placed at twenty-eight weeks with the rationale that this is when fetuses tend to become viable, and that separate independent living ability is what turns human beings into persons.

No proposal will last long unless it is accompanied by an account of what confers or constitutes philosophical personhood in universal terms. But this universalizing requirement poses significant challenges for the proponent in excluding from the definition the class of beings it seems reasonable to exclude whilst including those it seems reasonable to include. Opponents of any given threshold largely proceed by summoning forth reductio ad absurdum arguments, intended to show that the threshold or criterion commits its defenders to untenable implications concerning who is in or out of the person category. In the alternative, it will be argued that in stepping between all the cracks (the reductios), those defenders forfeit a coherent, universal theory for their proposed threshold. In particular, subscribers to the view that full-fledged personhood begins at conception typically allege that postconception—or, what they call, ‘developmental’—criteria for personhood, such as consciousness, rationality, or independent living ability, exclude too many born human beings from the community of persons.^[2] ^[3] Neonates and young infants are not rational. Comatose human beings are not conscious. Intensive care patients on life support may not be capable of independent breathing. But surely all of these human beings are persons. Counter-examples such as these can be mustered for almost any developmental criterion one might pick, and, it is argued, go to show that each of the developmental thresholds is unsupportable.

The conception threshold has its own reductio problems to contend with, however, although they come in a different form. For instance, if a human organism is a person in the philosophical sense from the moment of conception, then spontaneous miscarriage must be the greatest natural threat to the human race—the single biggest killer, outrunning cancer, malnutrition, and natural disasters by a huge margin.5 If zygotes and embryos are persons, therefore, it would seem to follow that more resources should be devoted to preventing natural miscarriage than to anything else. This will strike many as an absurd implication.^[4]

Further again, and somewhat strangely, the conception threshold entails that the majority of people who have ever existed perished as blastocysts before they ever implanted in the womb. It also seems to imply that embryo loss ought to be mourned every bit as much as the deaths of small children. In the commonly rehearsed ‘Embryo Rescue Case’ scenario, someone who faced the choice between saving one newborn baby or five human embryos from a burning down hospital would act more reasonably in choosing the embryos, given that this would amount to saving the greatest number of people.^[5] These all appear to be absurd but unavoidable implications of the belief that personhood begins at conception.^[6] Needless to say, some opponents of abortion will not find these implications absurd at all. Hence some emerging pro-life advocacy of ‘embryo adoption’, which is considered to be a form of child rescue. However, prima facie, and for the as yet uncommitted thinker, they are at least as hard to accept as the ‘developmental’ criteria reductios.

At a glance, then, it seems that counter-examples and reductio arguments can be deployed against thresholds of all kinds. The challenge for each proponent is to address the reductios without modifying her personhood criterion beyond the limits of its rationale or embracing conclusions that most will struggle to accept, such as that infants or radically cognitively disabled humans lack philosophical person- hood, or that the death of a single-celled zygote or, even, a pair of sex cells, is as lamentable as the death of an adult human being. As Don Marquis explains, discussants who arbitrarily tweak their criterion of personhood so as to avoid putatively absurd conclusions lay themselves open to the allegation that their arguments are ‘atheoretical’, not proceeding in terms of principles which are universally true.^[7] But just like the rules of a game, certain generally accepted rules and constraints direct the structure of the exchanges between contestants, refereeing the philosophical moves that can legitimately be made and dictating the standards of correctness to which proposed thresholds are held. The nature of those rules and the deeper commitments they might presuppose are a central concern of mine in this chapter.

[1] Robert P George and Christopher Tollefsen, Embryo: A Defense of Human Life (Doubleday2008) 1-3.
[2] For good illustrations of arguments of this sort, see Christopher Robert Kaczor, The Ethics ofAbortion: Womens Rights, Human Life, and the Question of Justice (Routledge 2011), chapter 4 generally.
[3] For a developed explanation of this point, see: Toby Ord, ‘The Sourge: Moral Implications ofNatural Embryo Loss’ (2008) 8 American Journal of Bioethics 12.
[4] It should be noted that defenders of the conception threshold have posited answers to this reductio,an important one of which simply embraces the putatively ‘absurd’ conclusion that embryos are equallymorally valuable with born human beings, but points to the inadequacies or impossibilities of embryosaving interventions (especially at such an early stage of pregnancy) as an explanation for why we wouldnot want to devote more resources to preventing natural miscarriage. This, to my mind though, doesnot address the palpable absurdity that should such interventions be effective and easy to deploy, theyought to take primacy over the prevention of disease, famine, road accidents, and the like.
[5] See: S Matthew Liao, ‘The Embryo Rescue Case’ (2006) 27 Theoretical Medicine andBioethics 141.
[6] There have been attempts to rebut the conclusion that these are necessary implications of the beliefthat personhood begins at conception. One or two of them will be considered in chapter 7.
[7] Don Marquis, ‘Why Abortion Is Immoral’ (1989) 86 Journal of Philosophy 183, 188—9.