Abortion and Individuation

A fetus separating from a woman's body is not all that matters.

As noted in my previous article, “On the Right to Get an Abortion,” I used to hold the view that individuation is what most matters regarding the issue of abortion. In this context “individuation” means the fetus physically comes out of the mother and becomes a physically distinct individual. In my previous article, I quoted Ben Bayer, who holds this view. Craig Biddle also holds the view. But I think it’s partly wrong.

Biddle argues:

A person has rights by virtue of the fact that . . . he lives in a social context and thus needs freedom from physical force so that he can act in accordance with his rational judgment and thus live fully as a human being. . . .

[A woman’s] pursuit of happiness is the moral purpose of her life—so, she should design the life she wants and pursue it relentlessly. If having a baby will make her happy given the full context of her life-serving values, she should pursue that goal. If not, she should not. If she becomes pregnant and does not want to give birth to a child, she should seek an abortion—because, in that context, given her values, that is the morally right thing to do.

A fetus . . . does not have rights—because it does not meet the basic requirements for having rights: It is not individuated; it is a part of its mother. It is not in a social context; it is inside its mother. It simply does not exist in the context in which rights apply.

Here’s why I think the point about individuation is partly correct. Being an individual in the relevant sense of a person with rights obviously depends on having the capacity for consciousness. This point is subsumed by the individuation thesis. And, so long as a fetus is physically contained within a woman’s body and dependent upon her body for physical sustenance, the woman has the right to choose to discontinue that bodily support. The fetus is not individuated in the sense that the fetus depends on the woman’s body for support. Similarly, an adult person does not have the right to bodily sustenance at another adult’s expense, say by using that person’s blood, bone marrow, or kidney without the person’s consent.

But I don’t think that just the fact that the fetus is contained within the woman’s body and dependent on her body for sustenance means that the fetus has no moral standing independent of the woman’s moral standing. Consider this example. A pregnant woman eight months into term gets in a car crash and ends up brain-dead on life support. The father is out of the picture. The fetus is alive and healthy, totally dependent on the woman’s body for sustenance, and so not individuated in that sense. Would it be totally fine for someone (say, the person who otherwise would inherit the woman’s estate) to walk in and kill the fetus, because the fetus is not individuated and hence has no rights? Surely not. The fetus has some moral standing in that context. I think killing the fetus in that context would be something akin to murder. The doctors have a moral responsibility to try to successfully deliver the fetus and put it up for adoption. (Let’s assume the doctors are paid by insurance.)

Biddle does recognize that a fetus should be protected at least if the mother wills it:

[A]lthough a fetus does not have rights, it clearly is a special kind of being—especially to a woman who wants to carry it to term and give birth to a child. Laws against killing a fetus without the express consent of the woman in which it exists are both valid and vital. And killing the fetus without the woman’s consent should be treated as a crime akin to manslaughter or murder.

If the woman is already dead, as in our example, obviously she cannot consent. I suppose we could take for granted that the woman wanted the child to be born and treat the killing of the fetus as something like violating the terms of the woman’s legal will. But I don’t think that really captures the moral issues at stake. Is killing the fetus really comparable to misappropriating the woman’s assets?

Suppose the woman had signed a document saying that, in the event that she became brain-dead but that her fetus was alive and healthy inside her, she wanted the fetus aborted, at any stage. Would doctors then have an obligation to abort the late-term fetus? I think not. Indeed, I think they would have a moral obligation to ignore the woman’s document, delivery the baby, and put it up for adoption. To do otherwise would be to treat the late-term fetus as the mere property of the woman.

Biddle’s position implies, not only that it should be perfectly legal for a woman to get an abortion five minutes before she otherwise would safely give birth to a healthy fetus, but that she is (or might be) morally virtuous to do so. I think an abortion in that context definitely would be morally wrong and that it also probably should be illegal.

The principle that I laid out is that, if a fetus is sufficiently developed to have the capacity for consciousness, and if a woman could deliver the baby without assuming more risk or cost to herself (and put it up for adoption), then the woman should give birth. Moreover, in those circumstances, the state probably has some interest in protecting the fetus. Otherwise we’re saying that it’s perfectly fine, or at least properly legal, for a woman to kill a developed, late-term fetus when she could as easily give birth and put the baby up for adoption. That’s a hard position to defend.

Practically speaking, most abortions take place early in the term, before a fetus has developed the capacity for consciousness, so there is no legal or moral problem with such abortions. (I mean, there should be no legal problem; various states immorally restrict such abortions in violation of the rights of pregnant women.) Later in term, most abortions that occur take place because the woman faces serious health complications or the fetus is horribly deformed. No woman who is not a sociopath goes through pregnancy until late in the term and then just arbitrarily decides to get an abortion. (And, in fact, Roe v. Wade allows restrictions on late-term abortions.) But it is useful to have well-developed principles that account even for unusual cases.

In terms of a fetus being in a social context, I would argue that a fetus is in a social context in relevant ways. (A friend of mine made this case to me some years ago.) In the example of the brain-dead pregnant woman, a fetus is at risk of dying because of the actions of the nefarious intruder. That is a social relationship. More usually, an older fetus can hear sounds, listen to music, recognize voices, push against its mother’s belly, feel pressure on the mother’s belly, and so on. So a developed fetus definitely is not individuated in the same sense or to the same degree that a born child is, but a developed fetus still has some limited social interactions with others.

My position ably accounts for the “five minutes after conception” and the “five minutes before birth” scenarios. I say that, early in term, a fetus does not have the capacity for consciousness, so it has no right to life. I say that, even later in term, a fetus does not have the right to the bodily support of the woman without her consent, but in some contexts that might mean that a woman can give birth (and hence end that bodily support) about as easily as she could get an abortion. If that’s not the case, say, if she needs to get an abortion to protect her health or life, she has every right to get the abortion.

The religionists who say even a just-fertilized egg has the right to life fail the “five minutes after conception” test. People who say that individuation (with developed capacity), in the sense of bodily separation from the mother, is the only thing that matters, as Bayer and Biddle think, fail the “five minutes before birth” test (in the contexts described). My position passes both tests and generally makes sense.

True, it’s hard to draw a bright line as to when a fetus develops the capacity for consciousness. Obviously before some point a fetus has no such capacity, and after some point it does, with a grey area in between. Practically speaking, prior to about five months into the pregnancy, there is no way for the woman to give birth to a viable baby anyway. Consciousness does not seem to arise until at least six months into term. So there are few practical problems that my views cannot easily accommodate. If doctors develop better technology, such that they can safely and easily deliver young fetuses and nurture them, then we may have some tricky issues to discuss.

But drawing boundaries is not a problem unique to abortion. Questions of rights often have fuzzy borders. As examples: When exactly has a person lost sufficient brain capacity to be deemed “brain dead”? How much smoke, light, sound, smells, or other such things must a person emit to be considered a rights-violating polluter? I think the principles I outline are correct even if applying them is not easy and obvious in every conceivable or theoretical case.

There’s also the practical matter of figuring out when and how the government might properly intervene to stop or discourage an abortion. That’s theoretically tricky but practically rarely an issue. There just aren’t many cases of women arbitrarily getting a late-term abortion, when they could about as easily give birth to a healthy baby.

Someone could argue that the problems of defining appropriate government action, and the problems of slipping down a dangerous slope to unjustified restrictions, count against any legal restrictions prior to birth. But I don’t think such an argument can universalize. For example, just because it is hard to draw the line between aggressive and reckless driving, and hard to know what government should do about the latter, hardly implies there should be no laws against reckless driving. That writing and applying the laws can be hard, and that the process potentially can be abused, is no argument against having laws.

The bright line of birth that Bayer and Biddle draw may seem appealing. That line still leaves some open questions: Does the fetus gain rights when its head crowns? When it’s halfway out of the woman? Drawing the line at birth at least narrows the window to a few hours within a given pregnancy. But that line is partly arbitrary, for the reasons discussed. The principles I lay out are somewhat harder to apply in various (rare) scenarios, but on the whole they better-account for all the relevant facts of pregnancy and of fetal development.

See also my July 2, 2022, article, “Ayn Rand's Evolving Views on Late-Term Abortion.”

Image: Petar Milošević