- Akash Jegan, BSc. LLB (Hons.), Gujarat National Law University
Introduction
Abortion is the act of deliberately terminating one’s pregnancy before natural childbirth. The term ‘abortion’ itself has varying definitions across jurisdictions and therefore, for the purpose of this article, it will refer to the most basic form of the term as given above. The procedure has been and remains a source of considerable debate among the public, with extremely polarizing views on both sides. Some believe that abortion is tantamount to murder of the unborn child and that the act is not only morally wrong but should be criminalized with heavy penalties for all parties involved. Others emphasize the birth giver’s right to reproductive autonomy and believe that no one should be able to make decisions concerning an individual’s body but that individual themselves.
The “pro-choice” group also contends the status of a foetus as a human being that demands moral consideration. Therefore, before one delves into the “right to life vs right to bodily autonomy” debate, the issue of whether a foetus possesses the right to life in the first place must be addressed, which will be the primary focus of this article. This will be done by referring to the concept of ‘personhood’ and posing certain basic philosophical questions such as: Is a foetus a person? If yes, then when exactly does it become a person? Is it obligatory to value ‘potential’ human life? And so on.
What is Personhood?
Personhood can be explained by acknowledging the difference between the terms ‘human’ and ‘person’. Although they are often used interchangeably, they are fundamentally different. The term ‘human’ is biologically rooted and simply refers to something that consists of human DNA while the term ‘person’ is more of a linguistic or moral term referring to a being that is part of the moral community and thus, deserves moral consideration. An entity could be human but not a person and vice versa. For example, someone in a persistent vegetative state would still be human but not necessarily a person, and in several parts of the world including India, their life if terminated by shutting off the machines that were keeping their bodies alive would not be equated with murder. In contrast, certain animals have been granted ‘non-human personhood’ in the past which has allowed them legal protection from abuse and slaughter. This concept gains importance in the abortion conflict as it can help determine whether a foetus should be allowed a basic legal right to live.
Criteria for Personhood & the Status of Fetal Life
American writer and philosophy professor, Mary Anne Warren suggested the following criteria to ascertain an entity’s personhood, (otherwise known as the cognitive criterion) (i) consciousness, and specifically the capacity to feel pain, (ii) reasoning, (iii) self-motivated activity (iv) the capacity to communicate, by whatever means, messages of an indefinite variety of possible topics and (v) self-awareness. She opined that for a thing to be said to be a person, it must at least possess (i) & (ii) if not all of the above-given criteria. Since a foetus possessed none of these qualities, it cannot be considered to be a person and therefore can have no moral standing—making abortion acceptable. But this would exclude certain individuals who may have cognitive disabilities and are unable to reason or carry any sort of moral agency.
Another type of criteria that was proposed to resolve the said issue is known as the social criterion which posits that a thing is to be given moral consideration or recognized as a person whenever society or another person cares enough about said thing to consider it as a person. This seems fairly simple and intuitive and can certainly aid in resolving issues regarding animal rights but it leaves a lot to be desired, for example, this could exclude a perfectly well-functioning human if no other person happened to care about them.
Australian philosopher Peter Singer believes that the criterion to ascribe personhood should be based on whether the entity is sentient, i.e, in simpler terms—whether it is able to feel pain or pleasure. As it would be morally wrong to subject an entity to pain and suffering given that it is so capable of feeling it. This criterion does a good job of not limiting the status of personhood to only humans and is inclusive of all creatures with developed central nervous systems. In the case of a foetus, basic neuronal components required to transmit somatosensory information (bodily sensations) develop by mid-gestation, i.e., between 18 to 25 weeks. Although seeing that the functional capacity at that point remains absolutely minimal, a better, lower bound time period can be placed at 30 weeks as from thereon, one can observe increased EEG activity and somatosensory information is better processed in the maturing cerebral cortex. Thereby, making abortion acceptable if performed within 30 weeks from the time of conception.
Personhood at Conception?
Abortion opponents believe that personhood status must be ascribed to the foetus at the stage of conception, i.e., when a sperm cell and an ovum fuse together to form a zygote. As at this point, the resultant zygote is genetically distinct from either of its parents and thus, marks the beginning of a new life. It is important to note here that after conception the zygote transforms into an embryo which then gradually forms a blastocyst. The blastocyst is then implanted onto the uterine wall at which point the blastocyst starts to receive oxygen and nutrients from the parent and the birth-giver is considered to be pregnant. What’s not so well-known is that after conception, about two-thirds of all human embryos fail to develop successfully. This should be alarming for people who believe personhood must be ascribed at conception as this would mean that each attempt at having a child also would involve killing a few others at the same time.
Potentiality
This refers to the contention that as a foetus possesses the potential to become a person, it deserves to be protected. But is the ‘potential’ of something of any significance on its own? Potential Xs need not be treated as actual Xs—Manninen gives several examples of the same by comparing the rights possessed by a potential something to its actual counterpart. A prince does not possess the same rights a king does, in the same manner, a medical student does not possess the same rights as a doctor. It is true that a medical student may be allowed to perform certain actions afforded only to a doctor in a given situation but this is by virtue of their current status as a ‘medical student’ and not in consideration of their becoming a doctor sometime in the future.
One can argue that in the case of a foetus, if left uninterrupted, will eventually grow into a person but the same is not true of a prince or a medical student. A medical student may not necessarily complete their course and become a doctor due to either external compulsions or because they simply decided not to. But these ‘exceptions’ are just as applicable to the case of a foetus as it too is vulnerable to external complications and as well as inherent defects which would deter its transformation into becoming a person. Therefore, according the foetus a special place in this regard would be arbitrary and irrational.
Conclusion
Personhood as a concept allows us to tackle certain moral and ethical issues pertaining to abortion. Several attempts have been made to devise criteria to assign personhood. Limited by the current scientific knowledge, the strongest attempt yet seems to be one that emphasizes ‘sentience’ being the deciding factor. A foetus that is under the 30-week gestational period has not yet developed on a biological level to possess sentience and can at best only be considered as a ‘potential’ person. The potentiality of something does not imply that it possesses the same value as its actual counterpart. A potential person only has potential rights which would gain moral value only upon the entity’s actualization, leading us to conclude that it would simply not be logical to give moral consideration to a foetus. The debate need not extend to the point of weighing the rights of the mother against her ‘child’ as the latter has not yet come into existence from a philosophical perspective. Needless to say, recognizing a woman’s reproductive rights is absolutely paramount to achieving gender parity. Thereby, abortion when performed under given conditions is not only morally permissible from a consequentialist standpoint but is supported at a fundamental level.
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