Abortion: foetus viability is a poisoned red herring

Abortion! I enter these shark-infested waters with trepidation.  But here goes, anyway.

I start from the position that what a pregnant woman chooses to do with her body and its foetus, up to the moment of the birth of what is then her baby, is her own business, and not anyone else's.  But those who share this view need to beware of the temptation to argue the case on our adversaries' terms by tacitly accepting the proposition that abortion should not be allowed after the point where the foetus becomes theoretically 'viable', i.e. capable of surviving independently of the mother.  This is wrong and dangerous on two grounds.

First, the commonly accepted test of viability makes a kind of sense only if one believes that destroying a potential future human life is morally equivalent to killing a human being (baby, child or adult) after birth.  But the logical consequence of that belief is that it must be wrong to destroy the foetus at any time after conception, since the moment the mother's egg is fertilised, a potential future human comes into existence.  Viability is irrelevant to this.  And once you equate the destruction of a one-day-old foetus with the murder of a baby, it's a short step to condemning anything that prevents an egg from being fertilised — i.e. contraception — which also destroys a potential future human.  To their credit (in a way), the more old-fashioned or doctrinaire Roman Catholics fully accept the logic of this, opposing abortion at any time regardless of 'viability', and condemning contraception on the same grounds.  But a necessary consequence of that position is that pregnant women's control over their own bodies is subordinated to a theoretical moral equation which is not only dubious but also contradicted by common sense and moral instinct:  destroying a foetus, whatever its nominal potential, is self-evidently not the same thing as killing a new-born baby, or any other human being. 

The second reason for not relying on viability as the point at which abortion should be disallowed is its relativity and impermanence, as well as its ambiguity (does viability imply merely capacity for survival for a week, or a month, or a year, after removal from the womb, or does it also incorporate the sense of capacity to develop into adulthood without crippling disabilities?).   There's anyway an obvious inconsistency in laying down a moral principle about the point at which an action ceases to be morally neutral and becomes morally unacceptable, if that point is constantly changing with the development of new scientific and medical techniques and if it comes at a different time in a pregnancy according to the location and circumstances of the mother.   The time is clearly approaching when a fertilised egg will come to be regarded as viable immediately after conception, since its removal from the womb and transfer to an artificial womb-like environment for rearing to full term can't be far away, if indeed it hasn't already arrived.  No wonder that the Roman Catholic Cardinal Archbishop of England has been all over our radios and televisions in recent weeks calling for a reduction in the number of weeks after conception beyond which abortion is no longer allowed.  He has the grace to admit that he opposes abortion at any time after conception (and opposes contraception designed to prevent conception at all) and regards a reduction in the time-limit for abortion as a positive step on the way to its total abolition.  We should heed that warning.

Lord Steel, architect of the 1967 Act, makes a sensible point when he argues that too many people resort to abortion almost as a form of contraception, or as a consequence of irresponsible failure to use contraception in the first place.  Abortion must always be a traumatic experience, emotionally and sometimes physically, and not something to be lightly undertaken.  But both he and the current responsible minister, Dawn Primarolo, accept that viability as the criterion for the time-limit is something for scientists and doctors to define, with the fatal implication that as viability becomes possible earlier, so abortion must be banned earlier too:

[Lord Steel] also said that he was not yet convinced that the upper legal time for terminations should be cut from 24 weeks.  This view is to be echoed today by the Government, in a move that has infuriated pro-life campaigners. Dawn Primarolo, the public health minister, will tell a cross-party Commons committee of MPs that there is no evidence to support a change in the law.  (Daily Telegraph, 25 Oct 07; my emphasis.)

Fortunately the mounting pressures for a reduction in the time-limit from those whose long-term aim is to ban abortion altogether, mainly for reasons stemming from a religious belief which only a small minority of British people share, is partly offset by countervailing pressures for further liberalisation of the law governing abortion, although the chances of that currently look remote.  But even the liberalisers risk seeing their case undermined if they continue to pin their colours to the rickety mast of viability.  Those who wish to see women's control over their own bodies respected under durable rules of law and custom ought to base their argument on the manifest difference between an unborn foetus and a human being after birth.  Destroying one can never be equated with killing the other:  and the consequences of making that false equation can only mean misery and suffering for legions of women of the kind that thousands endured before abortion became legal.  Don't let's allow ourselves to be driven back to that, just because of scientific and medical advances which in truth have nothing to do with the matter.

One further point.  The argument is unlikely to be advanced by discussion in terms of rights.   Even if one concedes the existence of 'rights' — granted by whom, to whom, under what conditions? — there's no obvious yardstick by which to referee a conflict between, say, the rights of a pregnant woman and the supposed rights of her unborn baby.  Nor should we ever accept without challenge the self-characterisation of the anti-abortion lobby as being 'pro-life'.  We're all, I hope, pro-life.  Some of us, though, are pro-choice, too.

Hat-tip:  Owen Barder (in a blog post no longer available).

Update:  I wrote this before I read Polly Toynbee's piece in the Guardian of 26 October (last Friday).  Polly says it all.  How refreshing to find someone else who has spotted the fatal flaw in the viability debate and its malign consequence of surrendering key decisions on it to scientists and medics — and, even worse, to priests of various sects — who are no better placed than anyone else to have a view!  As Polly says,

That is why no house room should be given to slippery arguments about the "viability" of foetuses. Virtually none survive under 24 weeks, and, if they do, the handicaps are usually horrendous. Already children's services are crippled with the cost of multiply damaged children left in their care. Foetuses may survive with "heroic" efforts of over-enthusiastic doctors winning full pages in the Mail, as yesterday, but the child's later progress is rarely reported.

Over the years more may survive younger, but that's not the point and it never was. Give in to that argument and the case for a woman's supreme right over her own body and destiny is lost. It is handed back again to the doctors and priests and politicians to make those decisions for her.

Amen to that — or rather Hear, Hear. 

Ms Toynbee's article is also memorable for its withering attack on the moral cowardice of the saintly, dithering Archbishop of Canterbury.  At least the Roman Catholics have the courage of their convictions and accept the logical consequences of them, however destructive these turn out to be.  For that they deserve, I suppose, a reluctant salute; but we really shouldn't take any notice of what they say.  

Update (3 November 07):  Rob Jubb posted a formidable commentary on this piece in his comment below, here.   I have now put my own response to his commentary as a fresh comment here.  In a message to Rob I have acknowledged that I would have written this piece differently if he and I had had this exchange beforehand.  So it ought now to be read in conjunction with our exchange.  The full text of Rob's commentary is embodied in my response to it so you don't need to visit both.

Brian 

13 Responses

  1. Peter Harvey says:

    Brian,

    You speak of the viability of a fertilised egg; Polly Toynbee talks of the viability of a foetus. These are totally different matters and they must not be confused. The former is to do with whether a fertilised egg will be implanted in the wall of the uterus and will thus, in the normal course of events, develop into a foetus and eventually into a birth; or whether it will fail and be excreted naturally from the system within a few hours. Such natural failure is very common. The latter (Toynbee's) case is to do with a developing foetus that is aborted, naturally or by induction, after several months of gestation. Such a foetus may or may not be viable for independent life outside the womb.

    Apart from that, the time lag between the sperm entering the egg and the implantation of the egg in the uterus raises another problem, one that has exercised theologians and other moralists greatly. What is the time of conception? Is it when the fertilised egg is implanted (when it has a real possibility for development as a viable foetus)? Is it when the egg is fertilised (when it has only a potential viability for development as a foetus, depending on whether it is actually implanted)? Or is it even the moment of the ejaculation that eventually fertilises the egg? This question is at the root of the ethical problem over the so-called morning-after pill. (It is also at the root of a number of paternity cases!) This pill is a drug that prevents the implementation of an already fertilised egg, which does not naturally happen immediately (hence the name) and can take up to 48 hours or even more. During that time, the egg is floating around in the uterus but is only potentially valid as a life because failing implantation, which doesn’t always happen, it will be eliminated naturally. Thus, the morning-after pill can reasonably be described as contraception rather than abortion.

    Brian writes:  These distinctions no doubt fascinate theologians, but I don't think they affect the central issue here.  Whether a fertilised egg is destined to get implanted or not, it's as much a potential future human being as a foetus (which itself may never reach full term for all sorts of natural reasons).  That's not of course to say that an egg is the same thing as a foetus;  obviously it's not.  But they share a characteristic which the anti-abortion fundamentalists rely on as an argument against deliberately terminating the existence of either, and some of course go further and denounce any action designed to prevent an egg either being fertilised or, if fertilised, being implanted.  Moreover the point here is to demonstrate the irrelevance of the argument about the moment of 'viability' and the dangers of accepting 'viability' as a valid cut-off point for permitting abortions.

  2. Dan says:

    I find it bizarre that anyone would even think that viability had anything to do with it. As you say, it's easy enough to imagine medical technology evolving to the point where every egg or sperm is potentially viable. Also, in the future when artificial methods of fertilising and implanting eggs improve, sex will have to be banned too, because 60-80% of fertilised eggs fail to implant and we wouldn't want to waste those potentially viable eggs would we? And for that matter, why stop with this argument at conception? Surely we should all be preserving our potentially viable sperms and eggs?

    I wrote a similar article over on my blog a while ago (and someone handily pointed out quite a good article by Zoe Williams in the Guardian).

    Also, the argument against abortion on the grounds that the 'irresponsible' use it as a means of contraception seems equally perverse. What's the alternative? Punishing irresponsibility with parenthood? Er…

    Brian writes:  It's reassuring that we should both have used the same arguments about the viability delusion.  Once stated, they seem obvious;  yet almost the entire debate in the media (television and radio discussions, newspaper and website articles) is conducted without even the most fervent pro-choicers questioning the assumption that abortion can't be allowed once the foetus has become 'viable'.  Even Zoe Williams, in the good, robust article of exactly a year ago which you helpfully mention, comes perilously close to accepting the viability criterion ("The truth is that no significant scientific development in foetal viability has occurred since the late-term law was brought down from 28 to 24 weeks in 1990").  Let's hope that Polly T's demolition of viability, plus the presumably rather less widely circulated arguments in your and my blogs, will begin to undermine this fallacy.

  3. I have no moral axe to grind and I certainly accept your argument about viability. I also accept your argument that an anti-abortion stance leads inexorably to an anti-contraception stance (and logically, if impracticably, leads to the conclusion that we should all be seeking to multiply the human race at every opportunity).  I’m not yet convinced, but am prepared to be persuaded, that aborting a one-day old foetus is not the moral equivalent of killing a one-day old child.  But even if there is no moral equivalence there, is there a moral difference between aborting a one-day old foetus and aborting a foetus one day before birth?

    I recall a discussion some time ago on Owen Barder’s blog about vegetarianism. I do not myself eat meat, but I concede that the logical ground is shaky. If we believe it is wrong to kill a sheep for our convenience, that is, to eat it, then why is it not wrong to kill a fly for our convenience, that is, because its buzzing annoys us? Owen’s response (he will perhaps correct me if I’m mistaken) was that a sheep is clearly a more sentient creature than a fly. Is it your argument that a one-day old child is clearly a more sentient manifestation of life than a one-day old foetus? If so, how do we know?

    Brian writes:  Interesting and difficult points!   I'm not a vegetarian myself, and I don't have a problem with either rearing or killing animals and fish for humans to eat them, which I suppose implies acceptance of a human claim to moral superiority over the rest of the animal kingdom.  I see no need to shirk that claim.  But I do accept a moral imperative not to impose unnecessary or pointless suffering on sentient animals and not to kill them without a proportionate reason, with the reason required to be the more compelling according to how sentient the animal or other living creature is.  I regard myself as entitled to kill a fly because flies spread disease and cause irritation to humans, but not entitled to kill a cat or a dog because it annoys me or might scratch or bite me.  As to the comparative sentience of a one-day-old foetus and a foetus one day before birth, I think that it is a scientifically established fact that the areas of the brain of the former which register pain or discomfort have not developed at one day, whereas those of a foetus on the verge of being born at full term obviously are fully, or almost fully, developed.  This certainly supports the case for performing an abortion, if at all, as early as possible in the development of the foetus, but it does not in my view justify banning late-stage abortions altogether, since the interests of the mother supersede or are inseparable from those of the foetus until birth, birth being the only defensible point at which the moral equations change.  It's in the interests of a civilised society that developed humans should not kill each other (with certain rare and arguable exceptions, such as in a just war, or euthanasia to end intolerable suffering):  but it's also in the interests of a civilised society that women should have control of their own bodies during pregnancy — and indeed after it. 

  4. Tim Weakley says:

    Brian,

    II wonder if your starting position is unassailable?  "I start from the position that what a pregnant woman chooses to do with her body and its foetus, up to the moment of the birth of what is then her baby, is her own business, and not anyone else's".  OK if the pregnancy was unintended – the vast majority of cases – but what If both parents had planned it?   Suppose  the pregnant woman says "I've changed my mind, I don't want this baby after all, it'll ruin my figure (or my career, or our finances, or our holiday plans)", should the father's opinion count at all?   I've often wondered about this.

    Otherwise I agree with you entirely!   Incidentally, the anti-abortion argument, sometimes advanced, that life begins at conception, is bogus.  The spermatozoon and ovum are alive before they meet, and they are the offspring by fission of other living cells, and so on back for over three billion years.  They can't survive outside the body except in a special medium, but this is true of all sorts of other, live, human cells.

    Brian writes: I accept that the pregnant woman has an obligation in certain circumstances to take the father's views into account before deciding for or against an abortion, although how much weight she ought to give to his views depends very much on her relations with the father, the extent of his willingness to share the responsibilities of bringing up the child if it's born, the intentions underlying the act of intercourse which produced the foetus, and so forth.  But even where the father's position is flawlessly conscientious, I would still argue that the final decision must be the woman's, because of the disproportionate burden that she carries throughout pregnancy and child-rearing, and the virtual identity during pregnancy of foetus with mother's body. 

  5. Phil says:

    In case you haven't seen this – Ben Goldacre ('Bad Science') has dug into the "more surviving earlier" figures and found them wanting. Ben's own version of the article is here.

    Brian writes:  Thank you for drawing attention to this extremely interesting article.  I thought when I originally read it that it was a pity for Ben Goldacre to torpedo the anti-abortionists' pseudo-science on the timing of viability and survivability without at the same time pointing out that anyway viability was, and is, irrelevant to the issue.  But I see that this point is eloquently made in a number of the comments appended to the article on his website. 

  6. Brian,

    Of course the viability argument must be binned.

    It won't be long before an artificial womb is built. Then a foetus, with only a couple of cells, could be transferred there to grow  until "birth". It will then be argued that viability starts at conception. Bang goes the woman's right.

    Peter Singer points out a delicious absurdity.

    Suppose a woman who is 26 weeks pregnant is living in Melbourne, a city with excellent intensive care units for premature babies, but she then travels to a remote part of the desert west of Alice Springs, three days from the nearest airstrip. Are we to believe that the foetus inside her was a living human being when she was in Melbourne, but not when she was in the desert? What happened to it then? Did it die? Did it cease to be human?

    t

    Brian writes:   You and Peter Singer make an excellent point — one that I tried to make in passing in my original post, above, when I wrote (with emphasis added here):

    There's anyway an obvious inconsistency in laying down a moral principle about the point at which an action ceases to be morally neutral and becomes morally unacceptable, if that point is constantly changing with the development of new scientific and medical techniques and if it comes at a different time in a pregnancy according to the location and circumstances of the mother.

    Brian

  7. Rob says:

    Although I'm not sure whether I think the viability argument works – it seems obvious to me that viability is not enough by itself, since I'm not sure that we could defend generally a principle that no matter what we ought to bring things to their potential, and something like that'd have to be doing the work I think – I do think what you explicitly say against it here must be wrong. After all, what's really doing the work in your view is the very strong presumption in favour of the rights of the mother. If you start from the position that "what a pregnant woman chooses to do with her body and its foetus, up to the moment of the birth of what is then her baby, is her own business, and not anyone else's", then of course the viability argument has no weight, but that's because it is an argument about what duties we might owe the foetus, and your position is that no-one has any duties to the foetus. That presumably would rest either on the thought that you have an absolute right to bodily integrity, regardless of the interests of anything else, which would be very strange – even if we ruled out my use of my body against other humans, it would imply I could do what I liked to other animals, which would be odd – or that the foetus has no moral standing at all, which would make it difficult to explain what we thought explained people's sadness at miscarriages and indeed abortions, and why there are term limits on abortions at all. Despite that, you claim there are two reasons for rejecting the viability argument. First, that it would make it impossible to harm any potential human being. But we can quite coherently talk about degrees of potentiality. For example, obviously, Arsenal have a much greater potential of beating Manchester United than a pub side, but even the pub side presumably has some potential of beating Manchester United. Potential is not then a binary concept, and we may distinguish various developmental stages, so your regress argument fails. The second is that it would make the standard too contingent on levels of scientific progress. But we think, presumably, that the shape of our duties to people in comas changes with the advance of technology. It cannot be the case that treating coma patients as they were treated in, say, medieval times now would be as acceptable as it was then. So the principle that advances in our capacity to care for particular beings should make no difference to our duties to care for them must be false. None of this, of course, bears on the factual claim that foetuses can now survive earlier, which I know next nothing about, or, as I said, settles whether that ought to make any difference.

    Brian writes:  Phew!  This calls for a considered response, which I shall put in a new Comment.  Watch this space. Later:  Now please see http://www.barder.com/ephems/719#comment-55241.

  8. John Miles says:

    I couldn't help being interested in your remarks about the way we treat our of animals.

    You say we have a duty to try to treat them in a more or less civilised way, "and not to kill them without a proportionate reason."

    Is it OK to treat our farm animals the way we do simply to enjoy the pleasure of eating them?

    So far as I can see, no member of our society needs meat to survive or for their health.

    Brian writes:  Unnecessary hardship inflicted on animals or birds which are being reared for human consumption, and the infliction of avoidable suffering in the process of killing them for that purpose, are certainly indefensible, especially when it's obviously perfectly possible (although more expensive) to rear them in quite pleasant conditions and then to kill them painlessly.  But I personally see no moral objection to the actual rearing and then killing of animals and birds for them to be eaten by humans.  The killing and eating of one species by another seems to be part of the natural order, and has a long pedigree, although I admit that that doesn't make it right (cancer is also part of the natural order).  I also acknowledge that humans don't need to eat meat for their health or survival, but I'm happy to justify rearing and killing animals and birds for the pleasure of their consumption by humans (although I recognise that there are many people who don't).  It's worth remembering that if it were not for the human habit of eating meat and poultry, the great majority of the animals and birds which we devour would not have existed at all, and would thus have missed out on the pleasures and rewards of their existence while it lasted, assuming they were not condemned to a wretched existence in indefensible battery conditions.

  9. Brian says:

    This is my promised reply to the challenging comment, above, by Rob Jubb.

    Brian:  Rob, I think the best way for me to respond to your comments is to take them one at a time.  The quotations are from your own comment above.  I am not a professional philosopher and have no training in that dark art, as will be apparent from what follows:  and I am impervious to any supernatural or priestly guidance.  So I tend to take a view of the practicalities and follow my instincts rather than the theoretical basis of what I see as right and wrong.  But I'll do my best!  Your comments begin:

    RJ:  Although I’m not sure whether I think the viability argument works – it seems obvious to me that viability is not enough by itself, since I’m not sure that we could defend generally a principle that no matter what we ought to bring things to their potential, and something like that’d have to be doing the work I think – I do think what you explicitly say against it here must be wrong.

    Brian:  I agree that the viability test implicitly depends on an asserted principle that "no matter what, we ought to bring things to their potential" and that that principle is pretty clearly invalid.  

    RJ:  After all, what’s really doing the work in your view is the very strong presumption in favour of the rights of the mother.

    Brian:  I have deliberately avoided using the language of 'rights'.  I argue that the pregnant woman alone should be able to decide on the future of her foetus, partly because the foetus is an integral part of the woman's body and not of anyone else's, and partly because no-one else can be anything like so powerfully affected by the decision on the foetus's future, emotionally, physically, practically, financially, in terms of future family life, relationships and career, not just at the time but potentially for the rest of her life.  For any other person – doctor, scientist, priest, philosophy don, blogger — to claim an entitlement to override the pregnant woman's wishes as to the future of the foetus, e.g. by preventing her from aborting it after some arbitrary point in her pregnancy if that is what she wishes, is frankly impertinent at best and arrogant at worst.  Moreover, I hold that nobody apart from the mother can have any moral obligations in respect of the foetus, for the reasons set out below.  However, I acknowledge that it's possible to express these ideas in terms of 'rights'.

    RJ:  If you start from the position that “what a pregnant woman chooses to do with her body and its foetus, up to the moment of the birth of what is then her baby, is her own business, and not anyone else’s”, then of course the viability argument has no weight, but that’s because it is an argument about what duties we might owe the foetus, and your position is that no-one has any duties to the foetus.

    Brian:  The point surely is that 'no-one has any duties to the foetus' because there is nothing about the foetus that gives it a claim on others. Who else is so much more intimately and permanently affected by the decision on the foetus's future than the mother as to assert a superior claim to decide on the future of both mother and foetus, the two being inseparable?   It's legitimate, but not really relevant to foetuses, to argue that society has a general 'duty' towards people of any age — new-born babies, children and adults; and that one of many such duties is society's obligation to protect them from being killed, except in certain defined circumstances (e.g. in a just war, to end intolerable suffering, to pre-empt an act of terrorism where killing is the only way to save other people's lives, and so forth);  but it's illegitimate to extrapolate from that general social duty towards developed human beings a similar duty on the part of society towards a woman's foetus still in the womb, other than society's duty to the woman herself (which, incidentally, includes a duty to protect her freedom of decision and action in matters which concern only herself and can inflict no harm on other people, foetuses not being people).  A foetus at any stage of its gestation can't be equated in this context with a person, of any age from birth onwards.  They are obviously materially different, not least in the defining relationship between a woman and the contents of her womb.  To repeat: there's nothing about a foetus that gives it a moral claim on others in the way that people do, a foetus not being a person.

    RJ:  That presumably would rest either on the thought that you have an absolute right to bodily integrity, regardless of the interests of anything else, which would be very strange – even if we ruled out my use of my body against other humans, it would imply I could do what I liked to other animals, which would be odd – or that the foetus has no moral standing at all…

    Brian:  I accept that my position depends on one or other of two arguments: either the foetus has no claim on us or, if it does, it is less than the mother’s claim on her own body.  It's also correct that the two arguments are logically incompatible with each other.  I take the first position, i.e. that the foetus has no claim on us;  but I go on to argue that even if you disagree with the first argument and hold that the foetus does have a claim on us, it is self-evidently less than the mother’s claim on her own body.      

    The language of rights seems to me to raise more questions in the context of abortion than it answers;  it begs too many questions about the origin and status of the supposed rights.  It's better to look at the undisputed facts of pregnancy, birth and abortion, and to work out an approach to them which is fair to the person most intimately and far-reachingly concerned, i.e. the pregnant woman, and which maximises her freedom to make her own decisions about her own body and her own future.  If the foetus has a claim at all, which I don't believe it has, the mother's response to it must surely out-rank anyone else's.  To put it another way, a woman’s interests in her own body are sufficient to outweigh other people’s interests in her body.

    RJ:  …or that the foetus has no moral standing at all, which would make it difficult to explain what we thought explained people’s sadness at miscarriages and indeed abortions, and why there are term limits on abortions at all.

    Brian:  I don't see the relevance here of the undoubted fact that people are sad at miscarriages (because very often the miscarriage disappoints hopes and expectations of the joyous event of having a baby) and often also sad over abortions, for very similar reasons.  I don't think that you can deduce that the foetus has moral standing from the fact that some people are made sad by miscarriages.  I am made sad by the destruction of all sorts of things that don’t have any 'rights' or moral status (e.g. trees).   No-one is arguing that abortion is inherently desirable or that most women, in most circumstances, will choose abortion lightly or with anything other than reluctance. Nevertheless abortion, at any time during gestation, may sometimes be the less undesirable of two generally undesirable courses (or the least of several), and only the pregnant woman can make that judgement in each individual case.  But in any case the overriding point is that the foetus does not have any “rights”, “moral standing”, “interests” etc., because it is not a person.  So far as I can see, you offer no reason for taking the view that the foetus has any claim on us.

    RJ:  Despite that, you claim there are two reasons for rejecting the viability argument. First, that it would make it impossible to harm any potential human being. But we can quite coherently talk about degrees of potentiality. For example, obviously, Arsenal have a much greater potential of beating Manchester United than a pub side, but even the pub side presumably has some potential of beating Manchester United. Potential is not then a binary concept, and we may distinguish various developmental stages, so your regress argument fails.

    Brian:  Your football analogy is a kind of pun, depending on two quite different senses of the word 'potential'; and it's therefore unhelpful.  The word you are looking for when you talk about football teams is “probability”, not “potential”. In the context of abortion, the concept of an entity which has the 'potential' of developing into a human being is absolute, not relative:  the entity (whether fertilised egg, one-week-old foetus, or late-term foetus) either has that potential, as it obviously does, or it hasn't.  It can't become more potentially human in the course of its development.  It's like being pregnant: either you are, or you aren't:  in the words of the truism, you can't be a little bit pregnant, nor can you become more pregnant towards the end of the period of gestation than you were at the beginning of it. 

    The logical consequence of the argument for banning late-term abortions, whatever the criterion for defining lateness of term, on the grounds that it is wrong to destroy a potential human being, is that a foetus should not be destroyed in any circumstances at any stage of gestation, from the fertilisation of the egg onwards.  Indeed, it's logically permissible to take it even further back:  a room containing a freezer full of frozen sperm, some frozen human eggs and a Petri dish has “potential” for human life:  why does “potential” start at fertilisation?  A nightclub full of randy young people of both sexes contains a large number of “potential” human beings – but nobody (least of all the Catholic Church) thinks that the night-clubbers have a moral duty to bring them to life.   The argument that there is a 'potential human being' present at least from the moment of fertilisation is precisely the position of (e.g.) the Roman Catholic church, which is why it is currently pressing for a reduction in the period during which abortion is allowed:  it hopes for an eventual ban on any abortion at any stage of gestation.  The basis for this is the (I believe invalid) assertion that a foetus can and must be morally equated with a developed, post-natal human being. 

    RJ:  The second is that it would make the standard too contingent on levels of scientific progress. But we think, presumably, that the shape of our duties to people in comas changes with the advance of technology. It cannot be the case that treating coma patients as they were treated in, say, medieval times now would be as acceptable as it was then. So the principle that advances in our capacity to care for particular beings should make no difference to our duties to care for them must be false.

    Brian:  I don't dispute what you say here, only the conclusion that you want to draw from it.  Clearly our duties depend on the available options: it makes no sense to say that we have a duty to save someone if there is no way available for us to do so. So you are right to say that our capacity to care for someone makes a difference to our duties to care for them.  But that is not the same thing as saying that the person's moral status has changed: all it changes is how we should or might respond to that moral status. The viability argument is not "We used to have to accept the death of 24-week-old foetuses because we had no way to save them, but as technology has improved we don't have to accept their death."  That would make some sense.  The viability argument is: “Because this is an entity that could now be brought to life, whereas previously it couldn't, it has a different moral status and that means that you now have a duty towards it."  Thus the assertion is that our ability to save its life (were it removed from the womb) means that we should not remove it from the womb.  And it remains to be demonstrated that the second part of that proposition follows from the first.  Viability has no bearing on the moral status of the foetus, or lack of it (although it might, as you suggest, have a bearing on what we should do about that moral status if we grant that it has one).  What is the supposed connection between our ability to save a foetus born prematurely at (say) 20 weeks – i.e. its viability — and the value we attach to its moral status?  Does its achievement of potential viability if it were to be removed from the womb reveal some previously unnoticed, or previously absent, quality in the foetus?

    Leaving aside the moral or philosophical objections to the concept of viability as the definition of the point at which abortion should no longer be permissible, there are additional, practical problems with the concept. Viability is such a fluid concept that it can't, in practical terms, bear the weight of serving as such a determinant.  It's fluid not only because it is constantly being changed by scientific progress, although it is, but also because it's vague and ambiguous (viable for how long?  Is a prematurely born baby who is so badly disabled as to be incapable of leading an independent life or of enjoying any significant quality of life, nevertheless in some sense 'viable'?);  and it varies wildly between one pregnancy and another, according to whether the mother is in a place – country or part of a country – where she has access to advanced medical care, in which case the foetus might well turn out to be viable in the most basic sense of the word, or is she so remote from sophisticated medical care (in a remote mountain village in Ethiopia, say, or on holiday in the Shetlands and miles from a hospital or doctor) that her identical foetus would have little or no chance of survival?  As Humpty Dumpty might well say, 'viable' means whatever you say it means.  It's no basis on which to build a moral and legal edifice whose consequences for tens of thousands of women are so momentous, quite apart from the logical and philosophical objections to its use in that way.

    RJ:  None of this, of course, bears on the factual claim that foetuses can now survive earlier, which I know next nothing about, or, as I said, settles whether that ought to make any difference. 

    Brian:  Exactly.  The fact that foetuses – or rather certain foetuses at certain times and in certain circumstances and places – can now survive earlier ought to have no bearing whatever on the freedom of women to choose abortion if and when they judge that abortion is the course of action most likely to minimise suffering.  We should not be looking to scientists or doctors for guidance (or 'evidence', as our politicians like to call it in their self-exculpatory way) on the circumstances in which abortion should be lawful or prohibited.  They have no better claim to an authoritative opinion on the matter than anyone else.

    More generally, the question of what ‘is’ ('can we save the foetus?') has no bearing on the ‘ought’ question ('we ought to save the foetus'), unless we assert a connection in the form “If we can save the foetus then we ought not to abort it.”  It is that connective statement which, when you think about it, simply doesn't hold water.

  10. John Miles says:

    I grant you meat production might well be acceptable if the animals involved were always allowed to live reasonably normal lives and were always killed humanely.

    But that would make meat so expensive that only a very few, very rich people could afford to buy it.

    What do you suppose actually goes on in our farms and abattoirs today?

    Haven't most farm animals been "condemned to a wretched existence in indefensible battery conditions?"

    Brian writes:  I don't disagree, but this is only very distantly relevant to the issues of abortion and the viability test. 

  11. John Miles says:

    True.

  12. Rob says:

    Brian, thanks for the above. Unfortunately, I don't really have time to do more than respond very briefly, for which I apologise; the comment deserves more consideration than that which I give it here. First, I just disagree with you about potential; it's not a pun. Even if it were, what you say would seem to show that more or less everything has the potential to be more or less everything else. That seems to expand the concept of potential well beyond its normal use. A binary concept of potential then seems to need a threshold; I don't have the potential to become a tree, for example, even if it is physically possible that molecules that now make up me could become part of a tree. That would also rule out the regress argument. The other thing I'd like to mention is the fetus having no moral standing. If, qua fetus, that is, before birth, fetuses have no moral standing, it becomes difficult to understand how new-born babies have moral standing either. Although I don't know this, it seems likely to me that a premature baby – say one born at thirty weeks – is significantly less developmentally sophisticated than a thirty five or forty week old fetus. If someone has the right to destroy the fetus, then presumably someone has the right to destroy the newborn, since presumably what determines moral standing is the developmental status, unless you really think that the mother's right to do as she pleases with her body obliterates any moral standing of the fetus. But if you think that, then you should think that the mother has the right to smother the newborn – or, if you're going to cleave to a human vs. non-human distinction, with the fetus being non-human, any other non-human animals she so pleases – with her body as well, since that is doing as she pleases with her body too.

    Brian writes:  Rob, thanks for this.  I believe (as you'd expect) that there are good answers to both your points;  but like you I don't think it's a sensible use of my or your time to pursue the argument any further here.  Let me just say in clarification of my position that I simply hold that only a person has the kind of moral standing that is at issue here, that a human is a person at birth and afterwards, but that a foetus is not, being in effect part of the mother's body until birth (or, of course, until any other form of removal from the womb), and that any other criterion for person status such as degree of development or sophistication, like 'viability', is unsustainable.   But anyway I think this exchange has been helpful in clarifying some of the difficult ethical and philosophical issues raised by the question of abortion and that it's been an object lesson in disagreement without discourtesy: for which I'm grateful.

  1. 29 October, 2007

    […] Editor wrote an interesting post today on Abortion: foetus viability is a poisoned red herringHere’s a quick excerpt […]

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