Introduction
Abortion is, and has long been, one of the most controversial and fervently theoretically debated topics in modern times. What is the insurmountable barrier standing in the way of consensus? It is indubitable that, given the heavily morally-imbued nature of abortion, individuals’ attitudes towards this phenomenon extend beyond mere opinion; they are inspired by much more than predilection; they are ‘tied up with a wider set of beliefs or worldview,’ extending across a plethora of social, cultural, familial, religious, legal, and/or political values.1 Yet it is not these individually-varying values themselves that prove insuperable, but rather the moral assumptions they engender on the moral status of the foetus.
According to Marquis, alongside most other contributors to this theoretical debate, the acceptance or rejection of foetal personhood is ultimately decisive to ‘whether or not abortion is morally permissible’ for individuals, due to the inherent implication that personhood determines whether it is immoral, and seriously wrong, to end another person’s life.2 This, accordingly, is seen to determine the acceptability (or otherwise) of the legal availability & regulation of abortion as medical practice.
Is foetal personhood the rightful moral determinant? Does it take no more than a theoretical guess to determine the rightful socio-legal response to a matter of lifelong implications for women? It is the writer’s belief that there are several theoretical & legal implications of equal importance that ought to rightfully determine the moral permissibility & legal availability of abortion for women, and that it ultimately becomes apparent that abortion is a matter of reproductive justice for females. In arriving at this conclusion, this discussion explores the following multi-faceted notions:
(1) foetal personhood & potential; and (2) motherhood, the socio-economic costs of reproduction & reproductive justice. For the purpose of this discussion, ‘abortion’ is to be construed as abortion resulting in foetal death.
1 K. Greasley, ‘In Defense of Abortion Rights’ in K. Greasley & C. Kaczor, Abortion rights: for and against (OUP, 2017) 1.
2 D. Marquis, ‘Why Abortion is Immoral’ (1989) 86(4) Journal of Philosophy 183.
Analytic Discussion Angle
The theoretical discussion on reproductive rights, such as abortion, prima facie appears to be far removed from considerations pertaining to legal practice. Yet is it? If access to justice requires access to legal assistance for individuals to obtain justice through the law, does the practical reality that access to abortion requires access to medical practices which are governed by law not indicate that abortion is also a matter of access to justice for women, specifically reproductive justice, and that access to abortion is legally fundamental? It is my belief that it does, and, consequentially, that only a combination of theoretical & practical considerations is rightfully suited to determine the moral permissibility & legal availability of abortion.
Part I: Of Foetus & Morality - Personhood & Potential
A misguided question of personhood?
As detailed, most abortion theorists approach the question of the moral permissibility of abortion on the basis of foetal personhood, which Greasley describes as the ‘silver bullet’ of the abortion debate.3 As the predominant proposition of anti-abortionists, this reasoning operates by establishing that, if the foetus is a person, abortion is ‘always morally wrong and legal abortion permissions almost entirely unjustified.’ 4 Yet, for this reasoning to hold true, a distinction between mere genetic membership of the human species and moral personhood must be theoretically established, as the classification of ‘person’ is intended to capture human beings’ entitlement to ‘strong moral rights, in particular, the almost inviolable right to life.’ 5 This is because the concept of a ‘human being’ only extends as far as establishing that a human being is an individual human organism.6 Given this, those who are opposed to abortion customarily argue that ‘a foetus is a person from the moment of conception’ to demonstrate that it enjoys this inviolable right to life flowing from the Kantian imperative.7
For theorists like Finnis, conception is the point at which personhood is acquired, and, as such ‘the unborn are indeed human persons,’ due to the mere fact that an embryo/foetus has the biological capacity for the characteristics which are taken to indicate personhood in later life.8 This capacity is then taken to represent an active potential, which ‘includes the very capacities which are distinctive of persons,’
3 Supra [1], 5.
4 Ibidem.
5 Idem, 6.
6 Ibidem.
7 I. Goold & J. Herring, Great Debates in Medical Law and Ethics (Palgrave Macmillan, 2014), 138.
8 J. Finnis, ‘Abortion and Health Care Ethics’ in R. Gillon & A. Lloyd, Principles of Health Care Ethics (John Wiley & Sons, 1994), 15, 15-16.
denoting personhood due to the (assumed) certainty that it will develop into one upon reaching maturity.9 However, does the concept of personhood lend itself to conception being identified as its inception, as Finnis argues?
According to Warren, this is a question oft overlooked by anti-abortionist philosophers, with Finnis being no exception, resulting in a ‘slide of meaning, which serves to conceal the fallaciousness of the traditional argument.’ 10 This is because simply being genetically human is not an automatic extension to being morally human, to being a person.11 Instead, personhood requires the presence of at least one or more indicia. Warren suggests that these indicia, the core characteristics which establish moral humanity, are: consciousness & capacity to feel pain, reasoning, self-motivated activity, capacity to communicate, and presence of self-concepts & self-awareness.12 It is by virtue of this concept as identified, and not being genetically human, that ‘all and only people have full moral rights.’ 13
Inevitably, then, a foetus lacking these moral characteristics cannot, and should not, be considered a person given that ‘genetic humanity is neither necessary not sufficient for establishing that an entity is a person.’14 If the foetus as human entity cannot be ascribed moral responsibilities or obligations, it cannot, then, be ascribed ‘full moral rights,’15 and, accordingly, is most certainly not a person until it has developed at least one indicium of moral humanity. Until that point, a foetus, or infant, ‘is considerably less personlike than is the average mature mammal, indeed the average fish,’ which is why this cannot and should not lend itself to overriding a pregnant woman’s right to abortion ‘at any stage of her pregnancy.’16 Therefore, a foetus is not a person, and foetal personhood is an inappropriate moral determinant for determining the moral permissibility of abortion.
An incapacitating question of potential?
In similar vein to Finnis, albeit on the basis of quite distinct reasoning, for Marquis it is the loss of the foetus’ future potential to develop & experience the same kinds of experiences that adult persons live to enjoy that makes abortion immoral and impermissible, due to its ultimate effect of depriving the foetus ‘of having a valuable future like ours.’17 He believes that it is this,
9 Idem, 16.
10 M. Warren, ‘On the Moral and Legal Status of Abortion’ (1973) 57(1) The Monist 43, 53.
11 Idem, 53.
12 Idem, 55.
13 Idem, 56.
14 Ibidem.
15 Idem, 57.
16 Idem, 58.
17 Supra [2], 192.
‘independently of the notion of person or potential person or any equivalent,’18 which ultimately determines the wrongness of abortion, as a solely personhood-grounded reasoning lends itself to dangerous implications, such as the arguable permissibility of infanticide.19
Yet the mere possibility of some future or some potential surely cannot be a sufficient basis for rights concessions, especially at the expense of the currently existing party’s rights being negatively affected, through curtailment/denial, by such concessions. Warren persuasively highlights the ridicule of such reasoning, by holding that surely the already-existing rights of a woman ‘will outweigh… whatever right to life a fetus may have by virtue of its potential,’ granted there is no ‘overwhelming social need for every possible child,’20 which there does not appear to be. If, at law, a potential future right cannot be a ground for refusal of the enforcement of an existing right, as it would result in legal incapacitation, then, during pregnancy, a foetal potential of some sort, whether based on personhood or ‘valuable future’, cannot be a ground for refusal of the woman’s exercise of existing rights as it would result in female incapacitation. Given that ‘the rights of any actual person invariably outweigh those of any potential person,’ the rights of the pregnant woman as existing person should never be overshadowed by those of the foetus as potential person.21 Therefore, any limitations or restrictions encumbering the woman’s actual rights on the basis of the foetus’ potential rights demonstrably amount to being ‘a wholly unjustified violation of a woman’s most basic moral and constitutional rights.’22 This is not to say that the foetus is of no inherent value, but that, irrespective of whatever moral value it holds, it is insufficient to override the pregnant woman’s. Therefore, akin to foetal personhood, arguing for some foetal future/potential proves to be an equally inappropriate moral determinant for determining the moral permissibility of abortion. What, then, would a more befitting moral determinant be?
Part II: Of Women & Motherhood
A rightful question of motherhood?
The theoretical approaches explored thus far have focused solely on the status & moral rights of the foetus. Is this not strikingly unusual, in that it pays no ‘moral attention to the fact that fetuses occupy women’s bodies’?23 It is not that a foetus exists separately from the woman carrying it
18 Ibidem.
19 Ibidem.
20 Supra [1], 60.
21 Idem, 59.
22 Idem, 61.
23 S. Reader, ‘Abortion, Killing, and Maternal Moral Authority’ (2008) 23(1) Hypatia 132.
inside her womb & providing it with the life force indispensable for its survival & development, effectively reducing the woman ‘to a ‘container’ or ‘incubator’, with the result that she is devalued and her interests disregarded.’24 Nor is it that the foetus is of no inherent value & no more part of the woman than a hand or a foot.25 Instead, it is a relationship between the two human beings that is at hand.
A theoretically more sophisticated manner of recognizing that mother & foetus are not separate entities, and that the foetus is more than just a bodily part of the mother, is the ‘not-one-but-not-two’ model, which recognizes ‘the nature of the maternal/fetal relationship,’ accommodates the inchoate interests of the foetus, appreciates the fact that a foetus has inherent value, and acknowledges the pregnant woman’s rights.26 Indeed, this more adequately caters to female patterns of thinking, and lends itself to legal intervention which appreciates the context of the pregnancy for the woman, therefore allowing for protection from third party interferences whilst preserving the sanctity of the woman’s choice concerning abortion.27 Yet what does the concept of ‘relationship’ entail for pregnant women and their foetuses?
Reader, in her discussion on abortion and maternal moral authority,28 advocates a model centered around the social concept of motherhood as the embodiment of the relationship between mother and foetus, and the rightful moral determinant to the abortion quandary. She submits a theoretical framework that, from a female standpoint, is difficult to reject, proceeding on the acknowledgment that ‘the pregnant woman’s experience of her relationship with it is our only resource in determining its moral status.’ 29
According to her reasoning, due to the ‘monumental, complex, life-structuring’ nature of motherhood as relationship, carrying with it ‘lifelong responsibilities of care,’ and enjoying both positive & negative implications, ‘motherhood is centrally a person-creating relationship.’ 30 Because of this, the decision of whether to continue a pregnancy is heavily dependent on a woman’s judgment of her ability to be a mother to the foetus she is carrying and is a ‘standing moral obligation to take responsibility for making good decisions about the fate of her fetus.’31 Therefore, the woman subjects herself to answering a plethora of self-directed questions that stimulate ‘complex, rigorous, and passionate thinking’ to ultimately ascertain whether she is ready & capable to create a person she will be responsible for until the point of maturity.32 Given this, the concept of motherhood is paramount, and ‘maternal
24 J. Seymour, Childbirth and the Law (OUP, 2000) 195.
25 Idem, 190.
26 Idem, 199.
27 Idem, 200.
28 Supra [23].
29 M. Little, ‘Abortion, Intimacy, and the Duty to Gestate’ (1999) 2(3) Ethical Theory and Moral Practice 295, 310-312, as quoted in Supra [23], 133.
30 Idem, 139-140.
31 Idem, 141.
32 Idem, 142.
responsibility is inalienable’ to any decision on abortion, as it equates procreation and pregnancy ‘with an inalienable responsibility to care, socialize, and educate.’ 33 Accordingly, then, due to this inalienability of maternal responsibility from pregnancy, Reader suggests that it is correct for women to believe ‘it possible to discharge the responsibilities of motherhood by ensuring fetal death, but impossible to do so by giving their child over to anyone else.’34
However, in concluding that motherhood is the moral determinant of the permissibility of abortion, as women are ‘morally and intellectually competent,’ Reader knowingly opens the door to the permissibility of infanticide at the mother’s (most sacrificial) judgment.35 Whilst her justification will not be explored at present, it is my belief that this theoretical objection can be easily resolved by adopting birth as the point at which the line ought to be drawn.
Birth is the point at which the foetus exists biologically independently from the mother, becomes able of intrapersonal interaction & a member of the wider human community, and ‘acquires full legal personhood.’36 Therefore, in responding to proponents of the view that birth is of little, if any, difference to the level of foetal development as relates to late-term foetuses, I am in disagreement. As Greasley acknowledges, birth is a highly transformative experience for a foetus, as it undergoes ‘extremely dramatic biological and physiological changes’ in the form of biological adaptations to a new environment, behavioral state changes, and beginning of the ‘development of subjective conscious awareness.’37 These changes represent undeniable indications that birth is a monumental experience for both foetus & mother, and should be rightfully construed as the inception of personhood for the neonate, rendering its right to life invaluable & inviolable, alongside protecting other moral rights it has now become entitled to.
A matter of reproductive justice?
Beyond the demonstrated absence of foetal personhood, inaptness of foetal future/potential rationales, heavy moral implications carried by women in the aftermath of conception by virtue of the social concept of motherhood, and the severely taxing & dangerous physical transformations undergone during gestation & childbearing, there exist monumental socio-economic implications for women both during pregnancy, as well as after birth. As Greasley notes, gestation & childbearing have ‘particularly detrimental consequences for the status of women and their
33 Idem, 143.
34 Ibidem.
35 Idem, 147.
36 Supra [7], 143.
37 Supra [1], 77-78.
equality with men,’ such as by preventing employment/career progression, instigating/perpetuating financial dependency on a male counterpart, and even preventing escape from a ‘situation of domestic abuse.’38 This serves as an undeniable indication that women’s ability to enforce their reproductive rights through the means of abortion is necessary to ensure that female social disadvantage & vulnerability to male oppression is prevented where a forced pregnancy would have perpetuated them.39
Given the foregoing burdens & implications of pregnancy and childbirth for women, access to abortion emerges as fundamental. It is a matter of women’s ability to enforce their reproductive rights to determine their reproductive destiny through the law as medium, and, as such, the moral permissibility & legal availability of abortion is a matter of access to justice as reproductive justice. Ultimately, this suggests that abortion should be readily available & easily legally accessible.
Conclusion
As demonstrated in Part I, the moral permissibility & legal availability of abortion is not a matter of foetal personhood or the future/potential of the foetus. It was nonetheless submitted that a foetus is not a person, and that a foetal future/potential argument is fundamentally wrongful & incapacitating as some future rights cannot outweigh existing rights. Thereafter, Part II established that, given the absurdity of removing the woman from the theoretical search for the moral permissibility of abortion, it must be recognized that the foetus and mother are ‘not-one-but-not-two’. Subsequently, I argued that the social concept of motherhood (alongside its practical implications) is the rightful moral determinant of the moral permissibility of abortion, to ultimately conclude that abortion is morally permissible until birth. Finally, by accentuating the heavy reproductive burden women carry socio-economically, the essentiality of reproductive control was emphasised, to ultimately conclude that access to abortion through the law is access to justice as reproductive justice, indicating that legal regulation of abortion should be centered around the woman’s autonomous choice, & access to abortion made readily available.
38 Idem, 14.
39 Idem, 16.