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Which Beings Should Be Given Rights?

Peter Lloyd asks whether embryos can be hurt.

There are in circulation irreconcilable beliefs about which beings should be deemed to have moral rights, and what those rights should be. For instance, I believe that a pregnant woman should be allowed to abort her foetus if she so wishes, but others think this violates a foetal right to live and should be prohibited. People haggle over moral conflicts like this all the time, but how often is anyone persuaded to change their beliefs radically? Anti-abortionists and pro-choicers remain fixedly in their camps, no matter how many debates they engage in.

This is not so much because people are bloody-minded. Rather, there is no objective means of settling disputes over fundamental moral principles. There is no way that I can ‘prove’ that a woman has a right to have an abortion, any more than the anti-choicers can ‘prove’ the foetus has a right to live.

Nevertheless, a government must decide one way or the other when it legislates (or when it refrains from legislating) on morally contentious issues. Either it makes abortion illegal or it does not. If the people it governs hold irreconcilable beliefs, and if there is no objective solution of the dilemma, how should a government take decisions of this kind?

In this country, the law of morally contentious issues such as abortion is decided by allowing Members of Parliament to vote according to their consciences. Should it be decided in this way? If an MP represents a constituency who differ in their views of the respective rights of women and foetuses, should he (and it is usually a he) vote just according to his personal preference on the matter?

It is probably unavoidable that MPs’ consciences will play some part. But I would suggest that there is a limit on what they can validly decide about moral problems of the sort that we are considering here. I mean, problems of where we should draw the line between beings that have rights and those that do not. Abortion is a problem of this sort, as the dispute pivots on where in the embryo’s or foetus’s life we start to give it rights. Besides human embryos and foetuses, this class of beings includes animals and brain-damaged humans.

Put briefly, the position I wish to defend is that a government cannot validly ascribe intrinsic rights to entities that are incapable of conscious thought. My secondary conclusion is that a government should ascribe prima facie intrinsic rights to all beings having that capacity.

Legislatures should be Consequentialist

The underlying idea of a consequentialist system of moral values is that an act is wrong if it hurts somebody.

In secular democracies, most reasonable laws are obviously framed to encode that principle. There persists a traditional body of law that defines ‘victimless crimes’ which are often to do with religion (for example, the prohibition on selling books on Sunday) – but these are disappearing in the free world. (Sadly, there are still many theocracies and dictatorships where a lot of laws quite obviously do not stem from consequentialist thinking.)

A legislature is morally bound to take a consequentialist approach to ethics. This is not because it is the correct system of personal ethics, for no such system is correct in an objective sense. Rather, a legislature should be consequentialist simply because it is accountable to people whose fundamental moral principles are irreconcilable. If it is to be fair to such a community, then it cannot employ subjective principles that are rejected by part of the community. It must limit itself to pursuing the objective interests of the people it serves (where ‘objective interests’ should be taken in a fairly broad sense).

Members of a legislature may hold beliefs that are at odds with the consequentialist ethic. But, when they serve in a government, they must subordinate their personal preferences to the best interests of the public. (It is like being on a jury. You might think that the man in the dock is a cad and ought to be locked up – even if he is not guilty of the charge. But you are required instead to provide justice.) Members of Parliament have a moral duty to vote on abortion and issues like it according to public interest, and not according to what they personally would prefer.

So, is there an objective way of telling whether a particular piece of legislation on something like abortion is, or is not, in the public interest? To some extent, yes.

Ability to be Hurt as a Criterion for Having Rights

The term ‘hurt’ is not to be taken in a purely physical sense. For instance, working out in a gym can be painful, but the pain is consented to by the clients.

I mean the term ‘hurt’ in the broad sense of an injurious action that the recipient would consciously prefer to avoid. Whether or not a particular act is wrong therefore depends on whom it is done to.

We must contemplate a broad classification of all entities into those that are physiologically capable of conscious preferences, and the rest. A legislature should not ascribe any legal rights to the latter, since they are incapable of being ‘hurt’ in any morally significant sense within the consequentialist framework.

An important conclusion at once follows from this. If there is a dispute over the claimed rights of two kinds of being (say, mothers versus foetuses), and if only one lot of beings (the mums) are physiologically capable of conscious thought, then a legislature must decide in favour of the conscious group. This is because the other group (the foetuses) are incapable of being hurt in a morally significant sense.

This is the limit of what moral philosophy can say on the matter. It is up to the neuropsychologists to ascertain just where the boundary is drawn between these two classes of entities – those that can have conscious preferences and those that cannot. In particular, the neuropsychologist rather than the philosopher must tell us at what point the product of conception can sustain consciousness.

Which Entities Can Be Hurt?

Despite having no expertise in neuropsychology, I shall nonetheless speculate on where we should draw the line, that is, how we should differentiate hurtable from non-hurtable beings.

There is no objective way of telling whether another being is conscious, or – if so – what the contents of its conscious mind are. Each of us knows that he or she is conscious. We assume that other human beings have similar conscious minds, because we all have physically similar brains and behaviour traits. We may assume the higher mammals are conscious on similar grounds. As we go further down the evolutionary tree, the presence of consciousness becomes less likely. I strongly suspect that bluebottles have no conscious thought, and therefore feel no remorse when swatting the ones that buzz around my living room.

Just as brainier animals are more likely to be capable of conscious preferences, so we may assume that more advanced stages of the human product of conception are more likely to have that capacity. We can safely assume that the singlecelled human zygote is (like the amoeba) incapable of conscious preference. So it cannot be ‘hurt’ in a morally significant sense (at least, not on a consequentialist view, which is what a legislature should take).

As a human product of conception grows, it eventually acquires the ability to have conscious preferences. Only then does a legislature have any business to ascribe rights to it. In contrast, the early embryo should be regarded as any other lump of tissue, and in itself accorded no protection.

So, where is this magic moment at which the baby suddenly acquires a moral right to live? I doubt very much that there is a precise answer to that question. The best that can be done is to identify particular stages at which we are either sure that it has a capacity for consciousness, or sure that it has not. I would propose that the 28th week of gestation, just before the cerebral cortex has begun to form, is a point at which we can safely say that the foetus cannot sustain conscious thought. (I suspect that it still cannot do it at full term, as the brain’s neurons do not yet have insulating myelin sheaths and so cannot function as they do in adulthood.)

This leads to the conclusion that a legislature is acting wrongly in prohibiting abortion before 28 weeks.

Public Policy versusPrivate Morality

My remarks have been concerned with public policy. Individual people, in contrast, inevitably hold the moral beliefs that their consciences tell them are right. Some people choose to believe that killing an embryo is morally wrong, but this belief is not amenable to proof or disproof. (To be sure, arguments that are sometimes advanced to support such beliefs are amenable to criticism of their logic. I mean, for instance, some antiabortionists say an ovum acquires a right to live at fertilization because it is then a potential person. This is fallacious because an unfertilized ovum is also a potential person, yet is accorded no rights. Logic-chopping of this sort achieves little or nothing.) Anti-abortionists find abortion morally repugnant because their consciences point that way, and arguments for their beliefs are just a rationalisation for gut feelings. Ditto their opponents.

The practical moral question is not, “Is abortion wrong?”, but, “Should a government prohibit victimless acts?”. That is all the moral philosopher has to answer; the rest of the work is for the neuropsychologist.

Is the Converse True?

I have said that beings which are incapable of conscious preferences have no rights. Is the converse true? If a being can sustain conscious preferences, should it automatically acquire prima facie moral rights? Yes, because the business of a government is to look after the interests of the governed. If beings have conscious preferences, then they are capable of being hurt, and hence they have interests that the government has a duty to protect. Of course, I am not proposing absolute rights. There might sometimes be good reasons for over-riding those prima facie rights.

The Right to Live

On the view I have taken, a government should not assign a right to live to something that cannot consciously prefer to live.

In this scheme, there is no scope for gradation. Either a being can consciously desire to live, or it cannot. Correspondingly, it either deserves a prima facie right to live, or it does not. There is no room for different sentient beings to have different priorities in the right to live.

This goes against a belief which is current in paediatric circles, that deformed children have a weaker right to live than healthy ones. On the view I am proposing, the health of a child or foetus is irrelevant to whether it should be accorded a right to live. The criterion is simply whether it is capable of preferring to be alive.

The health of the child may nonetheless legitimately affect a decision to end its life. If it has been established that the foetus or neonate is incapable of consciousness, and therefore has no intrinsic right to live, then it may be proper to allow the mother to decide to end its life for mercy’s sake.

Other Border-Line Beings

My remarks have been on unborn humans, but they also apply to brain-damaged humans, and to animals. On the view I have advanced, a human whose brain is so badly damaged that it can never again sustain consciousness has no rights; and, similarly, an animal whose nervous system is not developed enough to be conscious has no rights. If we should ever encounter beings from other planets, or robots that rationally claim rights, we ought to judge them by the same criterion.

Concluding Remarks

I have suggested that it is unnecessary to resolve the central moral dilemmas in such issues as abortion. For practical purposes, we do not need to agree whether killing human foetuses is right or wrong. Instead, if we can agree that the proper role of a legislature is to be consequentialist in its deliberations, then we can conclude that a government should not prohibit abortion (at least, not abortion of the early foetus).

This conclusion does not belittle the question of whether abortion is right or wrong. But it leaves that important question for individuals to answer according to their own beliefs.

© Peter Lloyd 1991

Peter Lloyd is a computer programmer in the University of Oxford, and an amateur philosopher.

Instead of a mugshot, Peter Lloyd sent in this:

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