Foetal Personhood

Something a little different and non-Mozilla-related for the weekend; a short essay examining when you can abort a foetus, and the connection or otherwise with whether it is a person. It comes with a handy diagrammatic representation of the current state of the law in the UK.

Comments welcomed.

21 thoughts on “Foetal Personhood

  1. Probably personhood shouldn’t be looked at as something binary that is or isn’t. But as something that develops. The more personhood has developed the bigger should the legal protection be and the more compelling should the reasons for abortion be.

  2. Are the two states in the diagram that ask about abnormalities really separate states? They look very similar to me, and combining would simplify the diagram a lot. Is the difference that the “in good faith” bit only applies to fetuses older than 24 weeks? Or is there a difference in how severe the abnormality has to be?

    Is it frequent for abortion to be considered more dangerous to the mother and existing children than carrying out the pregnancy?

  3. The way the law changes based on the fate of premature babies may have an interesting side-effect: encouraging people who are opposed to abortion to spend their lives improving medical technology.

    What will happen to the law once medical technology allows an embryo to survive in some kind of artificial womb only 1 or 2 weeks after conception?

  4. In the US at least there are other laws which come come into play on the decision of personhood of the fetus (the difference in the US spelling of the word through me off when I first saw the title of your article). For example, the fetus can be be legally aborted by a mother, but if she is murdered while pregnant it can be considered a double homicide. 1 count for the Mother 1 count for the fetus, which under ever other law the fetus doesn’t hold that status as a person.

  5. a suggested: Probably personhood shouldn’t be looked at as something binary that is or isn’t. But as something that develops. The more personhood has developed the bigger should the legal protection be and the more compelling should the reasons for abortion be.

    Two thoughts/observations:

    Firstly, that’s not a principle the rest of the law recognises. If I murder a child, or someone who is mentally ill, or hydrocephalic, I don’t believe I’d get a lighter sentence than murdering a fully sentient adult.

    Secondly, what would then say that personhood would be complete by the time the child exited the womb? After all, a newborn child is utterly helpless. If the parents only then found out he had a severe disability, couldn’t they bump him off?

    Jesse asked: Are the two states in the diagram that ask about abnormalities really separate states? They look very similar to me, and combining would simplify the diagram a lot. Is the difference that the “in good faith” bit only applies to fetuses older than 24 weeks? Or is there a difference in how severe the abnormality has to be?

    I think there is a difference; my source lists them as different tests and I believe they refer to different bits of the law. But I could be wrong.

    Is it frequent for abortion to be considered more dangerous to the mother and existing children than carrying out the pregnancy?

    (I assume you are asking about the bottom centre box.) Physically, no. Mentally, yes – the vast majority of the 184,000 abortions in the UK every year are carried out by answering Yes to this question.

    What will happen to the law once medical technology allows an embryo to survive in some kind of artificial womb only 1 or 2 weeks after conception?

    Good question. The “personhood develops over time” argument runs into trouble here, because you get all sorts of arbitrary justifications about where the save/no save line should be.

    Christopher: I understand the US legal situation is quite different; some states take the “Never A Person” view from the essay, and permit an “abortion” even if one toe of the foetus is still inside the birth canal. But I know less about US law, so I’m going to stick to UK law for now.

  6. >>For example, the fetus can be be legally aborted by a mother, but if she is murdered while pregnant it can be considered a double homicide.

    >Christopher: I understand the US legal situation is quite different; some states take the “Never A Person” view from the essay, and permit an “abortion” even if one toe of the foetus is still inside the birth canal. But I know less about US law, so I’m going to stick to UK law for now.

    Does the UK have a similar situation with their murder laws? It is a double homicide if a pregnant mother is murdered?

  7. “But we see that in the chart given above, and therefore in the law it represents, personhood is revocable. That is, it’s possible for a particular foetus to be classed as killable, then as not killable, then later as killable again.” (emphasis mine)

    There’s no time component in your chart so I don’t see how you draw that conclusion unless you are talking about applying the chart at different times.

    “This could happen if, for example, a follow-up scan is performed at 26 weeks and a previously-unknown disability is discovered.”

    “one should be able to determine an entity’s personhood by examining it” (emphasis mine)

    I’m making assumptions here about what you mean by revoked but I would have thought it wasn’t a case of personhood being revoked – “was a person but aren’t any more” – as it is of being annulled – “never were a person” (I know those two words are sometimes synonyms but I’m drawing a distinction). If your determination is based on evidence from an examination, if another examination provides different evidence doesn’t the determination have to change?

    (You might like Philip K Dick’s short story The Pre-Persons)

  8. Let me first expand on Jesse Ruderman’s comment: tying abortion law to medical advances in sustaining fetuses outside the womb is a slippery slope that runs afoul of the “intrinsic” character of personhood (as defined in the article).

    Consider if you will, what is the difference between a person and a body? If a person is missing an arm, are they any less of a ‘person’? An eye? A kidney? You’ll see that you can remove almost all the parts of the body (and in coming years it may be easy enough to replace them all with mechanical approximations) without making the individual any less of a person… that is, until you get to the brain.

    If you consider the tragic case of Terri Schiavo (http://en.wikipedia.org/wiki/Terri_Schiavo), its fairly obvious that she stopped being a ‘person’ in 1990: “The long period without oxygen led to profound brain injury (“anoxic-ischemic encephalopathy” noted at autopsy), severely damaging those parts of the brain concerned with cognition, perception, and awareness.” Her body was finally allowed to die fifteen years later…

    So IMHO if you’re looking for a rational point at which to define when a fetus becomes a ‘person’, you’ll need to begin to look at fetal brain development; as per http://www.abc.net.au/science/news/stories/2005/1444852.htm

    “Consciousness is created by brain connections between the thalamus and the cerebral cortex, and those do not begin to develop before the 23rd week and possibly not before the 30th week of gestation. […] “Conscious perception of pain does not begin before the third trimester,” the researchers write.”

    This would indicate to me that abortions should be legal *at least* to the end of the second trimester.

  9. Any time you try to reconcile the peculiarities of the law in a precedent-driven common-law system with straightforward logic, you will find contradictions. The law (in both the UK and the US) is not driven by systematic logic.

  10. “”a suggested: Probably personhood shouldn’t be looked at as something binary that is or isn’t. But as something that develops. The more personhood has developed the bigger should the legal protection be and the more compelling should the reasons for abortion be. “”

    Gerv: Two thoughts/observations:

    Firstly, that’s not a principle the rest of the law recognises. If I murder a child, or someone who is mentally ill, or hydrocephalic, I don’t believe I’d get a lighter sentence than murdering a fully sentient adult.”

    I think that’s precisely a principle the law recognises. That’s why there are so many rules about abortion. And that’s also why a doctor often won’t get sentenced when stopping life support for a person with a constantly deteriorating brain disease. It’s exactly what the law struggles with. That personhood isn’t binary is the cause for many discussions and also lawsuits where in the end one has to decide that yes, under these circumstances this decision is correct or no, it isn’t.

    Gerv: Secondly, what would then say that personhood would be complete by the time the child exited the womb? After all, a newborn child is utterly helpless. If the parents only then found out he had a severe disability, couldn’t they bump him off?”

    Nothing would say that. That’s something different cultures handle(d) differently. Sometimes young children that weren’t deemed fit enough were killed. That case is nowadays much rarer. But even today parents and doctors sometimes have to decide whether to stop the life and suffering of a young child or whether to try to squeeze yet another hour of life out of a wretched body. Those decisions aren’t easy and they don’t get easier with some arbitrary binary personhood definition.

    I’d even go so far and say that for un- and newborns personhood isn’t something totally intrinsic. I’d say it’s something that also depends very much on the mother and to a much lesser degree also on the father. That’s why (as Christopher noted) you can be convicted of homicide of a unborn when the mother still could legally abort her baby.

  11. @Christopher: The problem with the US laws on abortion is that they’re not consistent from state to state. Some states allow abortion up until birth, some only allow the first 3 months. And whether a fetus is determined as a person i.e. in cases of murder also vary from state-to-state, and who’s prosecuting it.

  12. �When it comes to people, the law says that you can’t kill them except for the reasons listed above.�

    Isn�t that true for all laws? They are just a fairly arbitrary list of things what you can and can�t do. I mean, who determines what is criminal and what is not? Why is e.g. smoking cannabis a criminal offense. I don�t know, it�s just �in the rules� (in most countries, fortunately not in mine).

    I mean, we kill animals *en masse* for food for god�s sake, to eat them. Explain that with ethics and principles alone. I sure can�t.

    As for abortion, I think that aside from if a foetus is a �person� or not (or rather: when it /becomes/ a �person�) it is also important to consider what impact the birth has on the life of the mother. For men it�s easy to talk, as they can just walk away if they can�t handle it. For women, it means massive changes in their life, which may come at very inconvenient times (and let�s not get into the subject of teen pregnancy).

    It may have happened while being totally drunk after going out, but it sure is a small mistake with huge consequences. For a woman if after one wild night you suddenly discover that your career chances got ruined (or at the least your life just became a hell of a lot more complicated without you consciously chosing for that), that�s a big problem.

    And remember, having an abortion is never an easy thing that you can just do at a whim as some kind of lame alternative for birth control (by the way, the church isn�t doing women a big favour by saying they can�t use it). Both physically and mentally the procedure itself and the have a huge impact, and in any case the woman is the victim (and the man can walk away). But I really think that it is good for mistakes which can have such big consequences, that there is a way to fix them.

    Basically, what I think is that before a certain stage in the development of the foetus, I think it is worthwhile to consider the impact that having a child has on a woman. I am not saying that this should be an easy choice, there must be obstacles like required counseling sessions and time to think it over (which is I think how abortion is regulated in the Netherlands). Above that stage, which would e.g. be when the foetus starts to �think� (hell if I know when that is :)), I think it�s fair to say that the mother has had time enough to consider the impact of having a child, and it can no longer be morally justified to abort the child.

    Controversial piece ahead: if it is moral to kill animals for food, surely we can help those women by killing their foetus, which the way I see it is no different from killing an animal (it�s just despisable to think that animals are somehow �lesser� than humans, they are not). We simply live in a society where killing is a legal activity (either for food or revenge or oil or whatever), and disallowing abortion because it is terminating �a being� could just not be justified from that perspective. If we should be worried about that and want to change our society into something that treasures life, then I think abortion is rather the last thing we should look at, instead of the first.

    I hope you find my comment interesting :).

    ~Grauw

    p.s. if you wish to use neutral terms like �foetus� instead of �unborn child�, I�d say instead of the more loaded and positionary term �kill� you could also just use �abortion�, which is the generally accepted term for the practice isn�t it. Otherwise, don�t bother to try to be neutral at all :).

  13. “Secondly, what would then say that personhood would be complete by the time the child exited the womb? After all, a newborn child is utterly helpless. If the parents only then found out he had a severe disability, couldn’t they bump him off?”

    The time-limit for abortion that is generally used does not lie at the time the baby exits the womb, so this argument doesn�t make sense.

    “> What will happen to the law once medical technology allows an embryo to survive in some kind of artificial womb only 1 or 2 weeks after conception?
    Good question. The “personhood develops over time” argument runs into trouble here, because you get all sorts of arbitrary justifications about where the save/no save line should be.”

    I do agree that coupling abortion date to medical technology of sustaining a life just doesn�t make any sense at all (I�m pretty sure that limit originates from the discussion of when doctors should try to save an prematurely born child, which is a very different subject). However, I do not see how that does in any way bring the “personhood develops over time” argument into trouble.

    Sure, determining until what stage in the �personhood development� process abortion can be justified is difficult, but absolutely not arbitrary. In the end, it�s a tradeoff between the life of the unborn child as it is at that point in time, and the (qualify of) �life� of the mother. I think to take the point where foetuses start to think, which is what somewhat makes us humans unique (although I don�t think the thinking process of a foetus, or even a born baby for that matter, is much different from an animal), is a sensible place. Before that it�s just a lump of meat with some chromosomes in it.

    ~Grauw

  14. Why should personhood be irrevocable? It seems to me that if there are two people humans with the same mental state, they should be treated equally, even if one has been that way since (pre-)birth and one became that way only recently.

  15. Sorry it’s taken me a while to get to this :-)

    Christopher asked: Does the UK have a similar situation with their murder laws? It is a double homicide if a pregnant mother is murdered?

    I don’t know for certain, but I think not.

    Flenser said: There’s no time component in your chart so I don’t see how you draw that conclusion unless you are talking about applying the chart at different times.

    I was. I think it’s reasonable to say their personhood was revoked, because what happens in practice is that a level of protection which had been afforded them by law was absent, then present (after 24 weeks) then became absent again. The fact that they perhaps didn’t “deserve” that protection doesn’t mean they didn’t have it.

    I’ll look up the short story you mention :-)

    Limulus said: If you consider the tragic case of Terri Schiavo (http://en.wikipedia.org/wiki/Terri_Schiavo), its fairly obvious that she stopped being a ‘person’ in 1990…

    Why is that obvious? As I argue in the piece, I think personhood is irrevocable. If it’s not, and you take it away from Terri Schiavo, why can you not take it away from disabled newborn babies, or hydrocephalics, or Islamic terrorists? Who gets to judge how brain damaged is brain damaged enough, and what sorts of brain damage qualify?

    Jonadab: fair observation.

    anonymous said: Nothing would say that. That’s something different cultures handle(d) differently. Sometimes young children that weren’t deemed fit enough were killed. That case is nowadays much rarer.

    But presumably, if you are endorsing the principle that cultures get to decide how to handle the issue, then you must be endorsing all the possible conclusions – including the one where children who aren’t deemed fit enough are killed? After all, you can’t support the principle of cultural choice but then not support the choices.

    Grauw‘s first comment makes (perhaps unintentionally) the excellent point that, without a higher power which defines right and wrong, all law is merely arbitrary opinion. One country has the opinion that smoking cannabis is wrong, another that it’s OK inside particular shops. One person thinks animals are on a level with humans; another thinks humans are superior. Who’s to say?

    He also notes that having a culture which prevents abortion while going abroad to kill people for oil is inconsistent; he’s right about that too.

    Grauw continues: I think to take the point where foetuses start to think, which is what somewhat makes us humans unique, is a sensible place. Before that it�s just a lump of meat with some chromosomes in it.

    So the brain-damaged are also “lumps of meat with some chromosomes in”, even if at one point they were fully-functioning human beings? How smart does one have to be to escape the Grauw Eugenics Cull?

  16. As for abortion…it is also important to consider what impact the birth has on the life of the mother. For men it’s easy to talk, as they can just walk away if they can’t handle it. For women, it means massive changes in their life, which may come at very inconvenient times (and let’s not get into the subject of teen pregnancy).

    You have something of an argument if adoption isn’t an option. If it is (and I know of nowhere where it isn’t), then that’s the decision that a woman in such a situation must make. It’s still an inconvenience, but that should have entered the equation when the first step happened. This should not be a decision based purely on the mother’s personal convenience, and if you would make it that way, you shouldn’t have made the original decision the way you did. (I admit this reasoning does not deal with pregnancies due to rape.)

    (By the way, I’m totally not opposed to compensating mothers who give babies up for adoption. I think nine months of inconvenience and pain should be worth some money if you’re doing the right thing and not the easy thing, although it would take care to write the law such that it isn’t a buy-a-baby scheme.)

    It may have happened while being totally drunk after going out, but it sure is a small mistake with huge consequences. For a woman if after one wild night you suddenly discover that your career chances got ruined (or at the least your life just became a hell of a lot more complicated without you consciously chosing for that), that’s a big problem.

    It’s also a big problem if you get in a car crash while being totally drunk after going out, but in that case there’s no easy way out; you can’t pay off the cop to not report it or the judge to not punish it. Sometimes small mistakes result in big problems; the way to deal with those big problems isn’t to take the easy way out but rather to do the right thing and accept the consequences as best as you can.

  17. “”anonymous said: Nothing would say that. That’s something different cultures handle(d) differently. Sometimes young children that weren’t deemed fit enough were killed. That case is nowadays much rarer. “”

    “But presumably, if you are endorsing the principle that cultures get to decide how to handle the issue, then you must be endorsing all the possible conclusions – including the one where children who aren’t deemed fit enough are killed? After all, you can’t support the principle of cultural choice but then not support the choices.”

    That’s an observation. Not something anyone has to endorse. It’s a mere fact: Other cultures value live at different stages differently. Whatever you come up with for when something is deemed worthy of living will have cultural and also some arbitrary aspects to it. You’ve pulled the “out-of-the-womb” moment as defining point of time out of thin air.

    “Grauw’s first comment makes (perhaps unintentionally) the excellent point that, without a higher power which defines right and wrong, all law is merely arbitrary opinion. One country has the opinion that smoking cannabis is wrong, another that it’s OK inside particular shops. One person thinks animals are on a level with humans; another thinks humans are superior. Who’s to say?”

    Exactly. All our decisions are based upon “merely arbitrary opinion”. Including our opinions about “higher powers which define right or wrong”. There’s no easy way out with handing over responsibility to some arbitrary deity. It’s us the human beings that have the responsibility and burden to decide about life or death in some circumstances. What is right or wrong is a never ending discussion that has to be held over and over again.

    “”Grauw continues: I think to take the point where foetuses start to think, which is what somewhat makes us humans unique, is a sensible place. Before that it’s just a lump of meat with some chromosomes in it. “”

    “So the brain-damaged are also “lumps of meat with some chromosomes in”, even if at one point they were fully-functioning human beings? How smart does one have to be to escape the Grauw Eugenics Cull?”

    So, what you’re arguing is that as long as you have remnants of formerly “fully-functioning human beings” you should go and try to bring them back to existence? Cloning all the dead from all cemeteries all over the country? Crying eugenics whenever the fact of life that is death won’t make anyone without a working brain come back to life. Even if they once were “fully-functioning human beings”.

    “Who gets to judge how brain damaged is brain damaged enough, and what sorts of brain damage qualify?”

    Obviously _we_ have to judge this. We as a society, as human beings. We always had to and we always will have to. And to make this a bit less abstract: I’d be happy to live in a society where it would be possible to end life support for patients like Terri Schiavo, where there’s no chance of her ever recovering, ever feeling joy again. I’d be happy if Islamic terrorists wouldn’t be killed but imprisoned as long as they pose a threat. I’d be happy if in the case of a newborn child with brain damage doctors and parents would look very careful at the condition and would try to determine whether or whether not there’s a reasonable chance that the child will ever be able to experience some happiness. In my personal perfect world most children with brain defects would be kept alive. But that’s my personal opinion. Society as a whole might take different decisions. As long as they aren’t taken light heartedly and as long as responsibility for those decisions isn’t delegated away to some deity I’m fine.

  18. So the brain-damaged are also “lumps of meat with some chromosomes in”, even if at one point they were fully-functioning human beings? How smart does one have to be to escape the Grauw Eugenics Cull?

    Well, it’s maybe not such a nice way of putting it, but yes. Think of Terri Schiavo, I think it was pretty terrible that they kept her body in a limbo state for so long, that was just selfish.

    And I think that ‘brain activity or no brain activity’ is not really such a harsh condition for my Eugenics Cull :). Given that our society massively kills animals which are just living their lives, I think my cull is rather lenient, too :).

    You have something of an argument if adoption isn’t an option. If it is (and I know of nowhere where it isn’t), then that’s the decision that a woman in such a situation must make. It’s still an inconvenience, but that should have entered the equation when the first step happened. This should not be a decision based purely on the mother’s personal convenience, and if you would make it that way, you shouldn’t have made the original decision the way you did.

    But that’s my point; it’s easy for men like you to say such things, but people make mistakes, and it’s such a huge change. Not just a matter of ‘convenience’ (seriously, do you realise what you’re talking about? don’t give me that crap), but rather ‘turning your whole life around’. I think those women deserve a second chance and must have the choice of an abortion (if it’s not too late).

    Also, if men masturbate, their semen dies as well. In fact, even when having sex, it’s still a big killing ground :). So should that also become a criminal offense? Why would a foetus be considered a ‘person’, but male semen not? It’s all just lumps of cells. If you want to talk in terms of ‘personhood’, fine, I can get into that line of thought. But just like you say that taking the point of brain development as a turning point is arbitrary, I think you are making a similar arbitrary distinction here (actually, even more because I don’t see a solid reasoning behind it in terms of what makes a person).

    It’s also a big problem if you get in a car crash while being totally drunk after going out, but in that case there’s no easy way out; you can’t pay off the cop to not report it or the judge to not punish it. Sometimes small mistakes result in big problems; the way to deal with those big problems isn’t to take the easy way out but rather to do the right thing and accept the consequences as best as you can.

    Arf, bullshit. First of all, those cases are just not comparable. Second, if there is a better alternative, there is no need to force people to take the hard way out. I’m sure if for car crashes there was an alternative way out to magically revive the victims, that would be the preferred way over the ‘tough luck’ approach. Chosing for the bad way, just because in other cases there is really no easy way out? What kind of reasoning is that. The case of abortion is different because the woman did not commit a crime in the first place, and because the ‘easy way out’ is actually feasible.

    I think this way of thinking is just kind of lame, and absolutely cruel to the women involved by forcing them to do something against their will because of some kind of ‘belief’ that is difficult to rationalise. In a sense, you could consider similar to rape, forcing them to do something against their will (that is, giving birth an unwanted child), and from the perspective of women rights highly objectible.

    Anyway, if people are against abortion, fine, if they get into such a situation they can make their own choice. Just don’t force your beliefs upon everyone.

    ~Grauw

  19. But that’s my point; it’s easy for men like you to say such things

    It’s only that way if you make it that way. Personally, I think fatherhood is definitely no less serious than motherhood, and the consequences of either really shouldn’t be that different (caring for the child, recognizing that it will entail daily [and nightly for the initial years] sacrifices, finding/keeping a job to pay for the best schooling and upbringing possible, being a good role model, instruction in the right morals, etc.). The ability of the father to “cut and run”, as it were, does not mean he is entitled to do so, just as the existence of abortion does not mean the mother (or father, if he were the one wanting it) is entitled to it. You look poorly upon the father (note: explicitly not man) when he cuts and runs — why shouldn’t the same hold for the mother?

  20. Very interesting essay, Gerv. I agree with you in many ways; I think there is a real problem with the way the current law differentiates between “healthy” foetuses and those with prenatally detectable abnormalities. You might also be interested to know that Jewish law on abortion uses the self-defence paradigm to permit abortion when there is a threat to the life of the mother.

    I actually don’t think the law is attempting to define foetal personhood, or at least, as you argue, it defaults to assuming that a foetus is not a person. That makes it at least logically consistent that there are circumstances where abortion is justified but murder wouldn’t be. That assumption doesn’t mean you don’t need any abortion laws at all; most agree that animals are not people but there are still laws restricting how you can treat them.

    Self-promotion: I wrote blog post on the abortion topic recently, some of which is relevant to this discussion.

  21. I wrote: “Limulus said: If you consider the tragic case of Terri Schiavo (http://en.wikipedia.org/wiki/Terri_Schiavo), its fairly obvious that she stopped being a ‘person’ in 1990…”

    Gerv replied: “Why is that obvious?”

    Because large portions of her brain, including the parts that make us ‘persons’, died; see for example http://www.amptoons.com/blog/images/schiavo_ct_scan.jpg

    As per http://www.rangelmd.com/2003/10/terri-schiavo-case.html

    “The most metabolically active area of the brain and the first to be damaged when the supply of oxygen is interrupted for more than a few minutes is called the cebreal cortex. This is a thin layer of brain matter that is responsible for most of the higher brain functions including memory, sensory perception, planning, motivation, personality, and conscious thought. It is this layer that makes us who we are and it is this layer that has been almost completely destroyed in Terri Schiavo.”

    Gerv continued: “As I argue in the piece, I think personhood is irrevocable. If it’s not, and you take it away from Terri Schiavo,”

    You are defining a person as a ‘living body’; that IMHO is severely lacking and the sort of definition that could classify an embryo (8 weeks gestation and less) as a person (http://en.wikipedia.org/wiki/Image:Tubal_Pregnancy_with_embryo.jpg is clearly not a ‘person’). What makes a person a person is a working brain (people can actually suffer quite severe brain damage but so long as critical areas are still present they should clearly be considered a person; consider http://en.wikipedia.org/wiki/Ahad_Israfil)

    I don’t think that’s a hard concept to grasp unless you are also trying to reconcile it with, say, the theological concept of a soul.

    Gerv also wrote: “Who gets to judge how brain damaged is brain damaged enough, and what sorts of brain damage qualify?”

    At the risk of sounding sarcastic, perhaps doctors specializing in the brain? :)