This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.
The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception
By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010
Individual Rights and Abortion
Rights in Pregnancy
On its surface, the secular argument for “personhood” might seem so simple as to be unassailable. Yet in fact, that simplicity conceals fatal defects in its implicit view of the nature and source of rights. Rights are not inherent in human biology: the right to life is nowhere stamped on our DNA. Rather, rights are principles identifying the freedoms of action required for human flourishing in a social context. As we shall see, such rights can and do apply to born infants, but they cannot be legitimately or coherently extended to embryos or fetuses.
The basic biological facts cited in the secular argument for “personhood” laws are not controversial. The fertilization of an egg by a sperm creates a new human life, distinct from that of its genetic parents. By an active, complex, and gradual process of development, that zygote may grow into an embryo and fetus, emerge from the womb as an infant, develop through childhood, mature into an adult, and finally age until death. However, contrary to the argument for “personhood,” that process of biological development does not establish that the zygote, embryo, or fetus is a human person with a right to life. Why not?
“Personhood” advocates assume that each and every human life, whatever its qualities or situation, must be a person too. They offer no argument for or explanation of that view. Yet in fact, the concepts are distinct, such that they need not perfectly coincide. In other words, the concepts of “person” and “rights” may not apply to all forms and stages of human existence. The distinction is simple. The concept of “human life” or “human being” used in the first half of the argument for “personhood” is purely biological. It identifies an organism as part of the human species. The concept of “person” used in the second half of the argument for “personhood” concerns politics. It identifies some entity as entitled to claim rights. To slide between these two distinct concepts using the term “human being”–as “personhood” advocates consistently do–is to commit the fallacy of equivocation.
The scope of the political concept “person” cannot be specified by science. That is a question for philosophy, to be answered based on an objective theory of the nature and source of individual rights. That these biological and political concepts might not coincide perfectly is hardly appalling, as “personhood” advocates suggest. Rather, the very purpose of the political concept “person” is to enable us to specify the scope of rights apart from any rigid biological criteria.
The advocates of “personhood” dogmatically assert that every human life is a person for a very simple reason: their secular defense of “personhood” is mere veneer on a deeply religious worldview whereby rights can only be understood as gifts arbitrarily bestowed by God. By creative and selective readings of their scriptures, combined with distorted appeals to America’s founding principles, the advocates of “personhood” believe that God bestows the right to life at conception. That is why they consider embryos and fetuses persons. However, that is a matter of faith, not rational conviction–and unsurprisingly, the facts show otherwise. Hence, even the secular argument for “personhood” is ultimately religious at its root.
To understand the rights applicable to pregnancy, we must sketch an objective theory of rights. In short, the rights of persons are not gifts from a divine creator, nor found in scripture, as conservatives often imagine. Nor are rights mere entitlements and permissions bestowed and rescinded by majority vote, as modern liberals suppose. Rather, rights are principles identifying our proper freedom of action. And they are rooted in facts about human nature, particularly the conditions for survival and flourishing in society. How so?
Humans cannot survive and flourish by tooth and claw–nor by our feelings, instincts, or faith. We live by exercising our distinctive capacity to reason in order to produce the values required for life–or we perish. That simple fact of human nature is the source of our rights. As Ayn Rand explains:
Since man’s mind is his basic tool of survival, his means of gaining knowledge to guide his actions–the basic condition he requires is the freedom to think and to act according to his rational judgment. …If men are to live together in a peaceful, productive, rational society and deal with one another to mutual benefit, they must accept the basic social principle without which no moral or civilized society is possible: the principle of individual rights.”
So what are rights? Again, Ayn Rand explains:
A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action–which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)
In essence, “to recognize individual rights means to recognize and accept the conditions required by man’s nature for his proper survival.”
On this objective theory of rights, a person’s rights are absolute and inalienable, yet they arise in and pertain to a social context. That’s because individual rights are the most basic principle of justice in a society. They’re neither innate qualities–nor gifts bestowed by divine powers, constitutional tradition, political leaders, or voters. Moreover, genuine rights cannot conflict, nor require the sacrifice of some persons to others. That’s because rights protect each person’s power to pursue his own life and happiness, free of forcible interference from others. Rights are freedoms to action, not entitlements to goods and services provided by others, nor duties imposed on others.
Given this understanding of the nature and source of rights, we can now ask: Is an embryo or fetus a person with a right to life, like an infant? No. To see why not, we must compare its basic nature and situation as it develops through pregnancy to that of a born infant.
From the moment of fertilization to its implantation in the womb a few days later, the zygote consists of a few largely undifferentiated cells. It is invisible to the naked eye. It has no human organs, and no human form. It has no brain, and so no capacity for awareness or emotions. It is far more similar to a few skin cells than an infant. Moreover, the zygote cannot develop into a baby on its own: its survival beyond a few days requires successful implantation in the lining of the woman’s uterus. If it fails to do that, it will be flushed from her body without anyone ever knowing of its existence.
If the embryo matures normally after implanting into the lining of the uterus, it gradually develops primitive organs. Yet its form is not distinctively human in the early stages: it looks very similar to the embryo of other species. As it develops its distinctive human form, the fetus remains wholly dependent on the woman for its survival. Even with the most advanced medical technology, many fetuses born in the 22nd to 25th week of pregnancy will die, and many of those that survive will suffer from “some degree of life long disability, ranging from minor hearing loss to blindness, to cerebral palsy, to profound intellectual disability.” So before viability, the fetus is not capable of an existence independent of the pregnant woman.
After 26 weeks, when a fetus would be viable outside the womb, its organs continue to mature in ways critical to its survival and well-being after birth. It is aware, but that awareness is limited to the world inside the womb. Most importantly, however, so long as the fetus remains within the woman, it is wholly dependent on her for its basic life-functions. It goes where she goes, eats what she eats, and breathes what she breathes. It lives as she lives, as an extension of her body. It does not interact with the outside world. It is wholly contained within and dependent on her for its survival. So if the woman dies, the fetus will die too unless delivered quickly. The same is true if the fetus’s life-line to her body is disrupted, such as when the umbilical cord forms a tight knot. A fetus cannot act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It is thoroughly and solely dependent on the woman in which it lives.
That situation changes radically at birth. A baby lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He interacts with other people as a whole and distinct creature in his own right, not merely as a part of a pregnant woman. He can leave his mother, either temporarily or permanently, to be cared for by someone else.
These important differences between the mode of life of the zygote, embryo, and fetus on the one hand, and the born infant on the other, show that the former cannot be persons. Rights, in other words, cannot be applied until birth. Why not?
First, the utter biological dependence of the zygote, embryo, and fetus on the pregnant woman shows that, until birth, it is not yet living its own life, but rather partaking in the life of the woman. It exists as part of the pregnant woman, not as an individual in its own right. Yet rights pertain only to individuals, not parts thereof. Such is the case, even when the fetus would be viable outside the womb. Even then, it is only a potential individual, not an actual one. The fetus only becomes an actual individual when birth separates it from the woman’s body. Until then, it cannot be a person with a right to life. The pregnant woman, in contrast, is always an individual with full rights.
Second, the zygote, embryo, or fetus does not exist in a social context until birth. Due to its enclosure within the body of the pregnant woman, the new life cannot interact with other people: it experiences only muffled sounds and indirect pressure through the woman. It cannot be touched or handled, nor can it even engage in the primitive communication possible to infants. Even the pregnant woman cannot directly interact with her fetus, as she will do with her newborn infant. Until birth, she can only act as a biological host to the life inside her, not as a mother. A woman, in contrast, lives in society whether pregnant or not–and her rights are therefore absolute and inalienable.
Given these facts, to ascribe any rights to the zygote, embryo, or fetus before birth is a profound error. It is not a person–or rather, it is only a potential person, not an actual person. To suppose that mere potentiality is sufficient is to commit the fallacy of the continuum. The fact that a zygote may develop into a born infant does not prove the zygote to be the same thing as a born infant–any more than an acorn is an oak tree and a caterpillar is a butterfly. As philosopher Leonard Peikoff observes, treating a zygote–a potential person–as though it were an actual person makes no more sense than treating an adult human–a potential corpse–as though he were an actual corpse.
The conclusion that rights begin at birth is confirmed by the serious conflict between any rights ascribed to the embryo or fetus before birth with the rights of the pregnant woman.
The pregnant woman’s most fundamental right–her right to life–is not merely a bar against murdering her. Her right to life encompasses all the actions that she deems necessary to promote her flourishing and happiness, provided that she does not initiate the use of force against others (and hence violate their rights). Her right to life protects her capacity to act by her own rational judgment, in pursuit of her own self-interest–and such is the very purpose of rights.
The advocates of “personhood” deny the pregnant woman’s right to life in asserting rights for the embryo and fetus. Abort73.com, for example, frames the issue in terms of competing rights:
Politically speaking, abortion is an issue that involves competing rights. On the one hand, you have the mother’s right not to be pregnant. On the other hand, you have the baby’s right not to be killed. The question that must be answered is this. Which right is more fundamental? Which right has a greater claim? Abortion advocates argue that outlawing abortion would, in essence, elevate the rights of the unborn over and above those of the mother. “How can you make a fetus more important than a grown woman?”, they might ask. In reality, outlawing abortion wouldn’t be giving unborn children more rights, it would simply gain for them the one most fundamental right that no one can live without, the right to life.
This analysis is utterly wrong. Rights are trumps: they identify the scope and limits of each person’s freedom of action in society. To assert conflicts between rights is to confess that one’s theory of rights contradicts itself, and a self-contradictory theory of rights cannot be true.
Yet that analysis by Abort73.com is correct, in one sense. By the very nature of pregnancy, any rights ascribed to the embryo or fetus would conflict with the rights of the mother to her own body. Since pregnant women are clearly persons with full rights, that fact only confirms that embryos and fetuses are not persons with rights. Moreover, Abort73.com acknowledges (to some extent) that pregnant women would be obliged to sacrifice themselves to provide life support to the embryo and fetus: “If a baby is not to be aborted, then the pregnant mother must remain pregnant. This will also require of her sickness, fatigue, reduced mobility, an enlarged body, and a new wardrobe. Fortunately, it is not a permanent condition.” Yet that demand for forced sacrifice contradicts the very nature and purpose of rights. How so?
Rights enable people to flourish by ensuring that they interact by peaceful, voluntary, and mutually beneficial trade–rather than violence, theft, and fraud. In particular, the right to life guarantees one’s own freedom of action in pursuit of one’s life: it’s not a duty imposed on others to preserve one’s life. The responsibility of care for another can only be acquired by the voluntary consent of the care-giver, such as when a man takes a friend out to sea on his boat for a week or when parents take an infant home from the hospital rather than abandoning it under a “Safe Haven Law.” However, to grant rights to the embryo and fetus would be to impose such an unjust duty on pregnant women. Regardless of her own plans for her life, every pregnant woman would be obliged to provide life-support to the embryo and fetus, perhaps at great personal cost to herself and her family. That’s not freedom; it’s slavery.
Significantly, the inalienable right of the pregnant woman to her own life–and hence, her own body–confirms that even a viable fetus cannot be properly regarded as a person with rights. Undoubtedly, for a pregnant woman to seek to abort a healthy, viable fetus without some overriding concern (such as her own health) would be a bizarre and possibly vicious act, e.g., if done to spite the father or due to evasion of the pregnancy for months. Yet the fact remains that even when a woman is deeply committed to her pregnancy, serious conflicts can arise between her welfare and that of the fetus, such as when receiving emergency medical treatment during childbirth or after a car accident. Due to such cases, the law must reflect the fact that the woman has an absolute right to make her own choices about her body. The potential for such conflicts only ends once the fetus is born, when the woman and baby become–and can be treated as–fully separate individuals.
Of course, when a woman wants to bear a child, she will value her fetus tremendously. She will do all she can to ensure the birth of a healthy baby, protecting it from myriad harms. Moreover, she has every right to expect that the police and courts will protect her and her fetus from criminal assault. Indeed, the law should severely punish criminals who intentionally harm a woman and her fetus. However, the only rational basis for such laws is the woman’s rights to her own body–coupled with a recognition of the value she places on her fetus–not any false rights attributed to the fetus. Just as the fetus depends on the woman’s body for its survival, so it depends on the woman’s rights for its legal protections.
In sum, the fundamental biological differences between a zygote, embryo, or fetus versus an infant show that a woman has every right to terminate an unwanted pregnancy–for any reason. The pregnant woman is a human person with the inalienable rights to life, liberty, and the pursuit of happiness. So is an infant. However, neither a zygote, nor an embryo, nor a fetus is a person. It has no right to life-support from the pregnant woman. For the state to force a woman to provide such life-support under penalty of law would be a gross violation of her rights. Yet that’s precisely what “personhood” measures would demand–based on the irrational fantasy that a zygote has the same moral and legal standing as an infant.