Monday, November 09, 2009

Bone Marrow Transplants and Abortion

Posted by Sherry Colb

In my column this week, located here, I discuss a case in which plaintiffs challenge the constitutionality of a federal criminal law that prohibits the provision of compensation to bone marrow donors.  I consider the arguments for prohibiting markets in various zones of life and how the general arguments fare in the particular context of bone marrow donation.

In this post, I want to consider a very different question that transplantion cases always raise in my mind:  what would it take for me to become "pro-life"?  That is, under what circumstances would I be persuaded that the law would appropriately intervene forcibly in a woman's decision about whether or not to continue a pregnancy.

I would define "pro-life" for purposes of this reflection as agreeing with the proposition that at some stage of pregnancy (which might not be conception, even though the current pro-life movement in the United States has selected that stage), the right of the embryo or fetus to continue living trumps the right of the pregnant woman to stop being pregnant, that is, to remove the embryo or fetus from inside her body.  For a nonviable fetus, of course, removal will result in death, but the right of abortion is -- in my view -- primarily a right to bodily integrity rather than a right to kill the fetus (and therefore would not extend to a fetus in an incubator).

My first reaction to the question (which I have, on occasion, encountered) is to say that so long as the embryo or fetus is not sentient, I do not believe that its right to continue living should trump the pregnant woman's right to stop being pregnant.  We do not currently know precisely when a fetus begins to experience sensations, but at a point prior to that, I am convinced that a woman should have complete autonomy to decide how to proceed.

But what about after sentience?  At this point, I share the belief of many that abortion becomes morally difficult.  That is, an abortion in the first few weeks is qualitatively distinct from an abortion in the later stages of pregnancy.  Once a fetus is sentient, remaining pregnant becomes less like creating a new person and more like providing life-support to one that already exists.  In other words, to remain pregnant becomes like tissue donation, in which one's body is used to give life-saving assistance to another.

When the being inside a woman is sentient already, a legal requirement that she remain pregnant is, in my view, tolerable only if every person who needs blood or tissue donation has legally protected access to such materials too, just as the fetus does.  Stated differently, a fetus should not have the right to use a woman for life support unless everyone (not only women and not only pregnant women) are "on deck" to provide biologically invasive life-support if needed as well.

Such a world would mean that we would not need to have a debate about compensating bone marrow donors (or donors of organs after death).  Availability for such donation would be mandatory and uncompensated.  Whenever anyone needed blood, bone marrow, or another renewable bodily tissue, for example, the next biologically compatible person on the list (with an exclusion for the currently pregnant) would be contacted, screened, and made to donate.

Would such a society be a desirable one in which to live?  For many, the answer is obviously no.  If a person is healthy and happy, he probably prefers not to be "on call" in this way for sick people.  Indeed, it seems, many people oppose even the minimal "on call" feature of mandatory health insurance, in which the healthy must contribute to the pool of money available to care for those who are or do become sick.  A mandatory tissue donation system smacks of totalitarian socialism, in which what is yours presumptively belongs to the collective, and the collective can confiscate it at will and through violence, if necessary.

In such a society, it would seem to me acceptable (to the extent that any of it is acceptable) to require women to carry pregnancies to term after a fetus becomes sentient, if the woman's life or health is not in danger (just as only tissue but not organ donation is part of the system I describe above).  Such a system is, of course, utterly alien to our current law, which -- rather than compelling marrow donation -- impedes patients' access to willing donors who want to be compensated for their trouble.  The only context in which prohibitions against abortion would be something other than a denial of equality, then, would be a context in which everyone -- not just fertile women who become pregnant -- is a vehicle through which the collective preserves existing lives, by force, if necessary.


heathu said...

Prof. Colb: You seem to oppose prohibitions on abortion for the same reason you would oppose mandatory bone-marrow screenings and transplantations: that conscripting unwilling people to use their bodies as vessels (either as a womb or as a tissue source) is morally odious and smacks of totalitarian socialism, even if it is to allow another person to keep living. Could a pro-life person respond that the government can, and does, conscript people’s bodies when they think the issue is important enough? I am thinking here of actual conscription, a.k.a. the draft. If the government thinks fighting a particular war is important enough, it can invoke the draft to conscript enough men (as is the law in our country, but the government could change that to include women as well). Likewise, if the government believes allowing sentient or viable fetuses the opportunity to live is important enough, the pro-life argument would go, the government has the power to do that, even if it is a significant imposition on the pregnant woman’s body. After all, basic training and fighting wars is a significant imposition on a man’s body and freedom, and could be at least as dangerous, if not more so, than a pregnancy.
I happen to be pro-choice for the same personal autonomy reasons alluded to in this post, but I also can’t help but think that getting an unwanted draft card in the mail is the closest thing to an unwanted pregnancy a man could face. I also think the draftee’s constitutional arguments against the states power to issue such a card are pretty weak.

egarber said...

Interesting. But wouldn't the direct equivalent be more like somebody choosing to donate life-sustaining tissue -- and then deciding against it before seeing it through? I'm thinking that since only pregnant women are in the sample for the abortion possibility, it seems overly-broad to make everybody subject to the parallel mandate.

egarber said...

To clarify what I mean, pregnancy is the result of a decision to engage in sex. It seems there needs to be some sort of equivalent qualifier for an at-large rule.

tjchiang said...

I'm not sure your analogy is apt, because it ignores the connection of parent to child. Your point, I take it, is that anti-abortion laws force women to provide life support to the fetus, but we don't force random strangers to provide equivalent life support to each other.

But we force parents to provide plenty of things to their children (food, shelter, education, economic support) that we do not require random strangers to provide to each other. And, as child support and child neglect laws demonstrate, such commitments are enforced by rather draconian measures.

Blogger said...

I'm not sure that most pro-choice advocates would agree that the abortion right is "primarily a right to bodily integrity rather than a right to kill the fetus." I take it that many are more concerned with the social difficulties that having a child raises than the biological burden of pregnancy. Although it is usually argued that there is a right to "end the pregnancy," if an embryo could be removed right after the moment of conception and incubated to term with no tissue donation necessary, I think many pro-choice advocates would still object on the grounds that women should have a choice to stop the embryo from becoming a mature human.

That is, even if there were no biological burden of pregnancy and no administrative burden of giving a child up for adoption, still many women would likely object to a requirement that their offspring be allowed to exist without their consent. For some, simply knowing that they have unwanted offspring may be a psychological burden.

Consider the following: A man decides to store his sperm in case he might decide to use it at some time in the future. It is stolen and used to impregnate a woman. Does the man have the right to abort the baby? Does it matter if the woman who became impregnated by his sperm was the one who stole it or knew it was stolen from him? Does it matter if the embryo were instead entirely conceived and grown outside the body with some new technology?

I raise this to illustrate that future technological advances may reveal “bodily integrity” as a red herring. Deeper than the question of whether or not a woman has the right to avoid the biological burdens of pregnancy is the harder one of whether that right stems from a right to terminate the life of would-be offspring.

Gary said...

I have wondered how the sides on the issue of abortion came to be. As you point out in your analogy to forced tissue donation, it could be viewed as a totalitarian socialist mandate that a woman must give herself for the benefit of another, and such personal sacrifice, or extreme taxation, could be reprehensible to the most conservative. Though anti-abortion people have commandeered the term “pro-life,” this in no way fits with their majority views in the exceptions for rape & incest, as indicated by surveys. If it is about life, certainly the father’s crimes should play no role.

Did the sides arise because of differences over women’s rights? Consider that, during slavery, it was illegal to kill one’s own slave. How would the sides have split over a question of whether an owner could force his slave to undergo an abortion against her will, assuming it was a safe medical procedure? Would property rights have been the substantial issue, with slave owners arguing that a fetus is not a life in the same way that a person is? Would the slavery opponents have argued that a fetus is a life, and a slave owner had no more right to abort it than to murder a slave? I don’t know the history of the abortion issue. Maybe it only became an issue after the medical procedure became safe enough to actually advocate for it. But projecting a hypothetical to a time when people were property, so that a woman’s rights to her body were legally an owner’s rights to her body, seems to present an interesting issue of whether pro-life was a justification or a reason for opposing abortion.

Sherry F. Colb said...

Great comments and questions from everyone! I will try to say something brief about each point, although a "comment" is inherently too limited to respond in full.
heathu makes an important observation about the military draft -- I agree that drafting people into the military and combat imposes on bodily integrity as dramatically as compelled pregnancy. I would note, however, that we have not had a draft here in a while and that if there had been a draft in place, opposition to the Iraq War would likely have been immediate and overwhelming. The draft, in other words -- though theoretically possible -- is no longer a reality in this country and probably won't be again until there is an existential threat to the survival of the country. On the point about the importance of protecting fetuses, I think the many people in need of transplants could argue convincingly that they are just as entitled to the government's coercive aid as are fetuses and that it is arbitrary to single out the latter as the pro-life movement would like to do.
egarber raises the "sex as consent" argument for prohibiting abortion. I find the argument unconvincing, because unlike the donor who wants his marrow back, people frequently have sex without wanting to conceive and do not think of sex as an agreement to carry a pregnancy to term. There is always the possibility of abstaining from sex (or sterilizing oneself), but such measures strike me as an extreme imposition to place on women who want to avoid compelled pregnancy. I think most people would feel put upon if they had to be on call for marrow donations, even if they could become celibate to avoid conscription.
on tjchiang's point, I don't think I am ignoring the parent/child connection. I'm suggesting that we do not require parents of born children to make biological donations to them. We require only financial support. Therefore, it is odd to make an exception to the anti-good-samaritan principal (when it comes to bodily impositions, as opposed to financial impositions) for parents of fetuses.
on Blogger's point, I think you're right that many people would object to a right to abortion that rested exclusively on bodily integrity grounds because they -- mena and women alike -- would want to have a right to prevent a particular child from coming into being. I describe this right in my G.W. piece (just published) as the "Offspring Selection Interest" (or "OSI"), and I would not dispute such a right so long as the fetus does not have moral status (a status that I would associate with the beginning of sentience). However, once the fetus becomes a moral person, it is not obvious why the parent should have any greater right to kill that fetus (once it is not invading her body) than she would have to kill a six-month-old baby that she would rather not have. It seems to me that at that point, when she is no longer "preventing" a moral being from coming into existence but is instead "terminating" a moral being that already exists, she must rely on what I call the "bodily integrity interest" or "BII" for removing the fetus from inside her body. Stated differently, the moment that the fetus has the status of a moral person, the OSI expires. When technology makes pregnancy an incubator (rather than female) phenomenon, I argue in my G.W. piece that we will be forced to decide when moral personhood begins, because there will be no more BII on which to rely, just as you suggest.

Sherry F. Colb said...

Oh! I forgot to respond to Gary's point -- sorry Gary! Your question about how these positions on abortion arose is a very interesting one. An author of a recent book, entitled "The Means of Reproduction: Sex, Power, and the Future of the World", Michelle Goldberg, shows that opposition to women's rights has played an extremely important role in giving rise to the anti-abortion movement in the United States and throughout the world. She points out, for example, that in countries where birth control and abortion have been associated with population control instead of women's autonomy, there has been relatively little opposition to abortion. (She gives India as one example).

Blogger said...

Thanks, Prof. Colb, for the thoughtful response. I haven't read your GW article, but it sounds like the OSI vs. BII distinction is a helpful addition to this discussion.

And yes, the question of "moral status" or personhood is unavoidably the root of the difficulty, as much as commentators want to try to get around it and find other dispositive interests (if I recall correctly, Dworkin and MacKinnon have tried). Alas, we always come back to the elementary question: when does personhood begin? Unfortunately, reasonable people advance plausible theories that diverge widely: from conception (much of the pro-life movement) through infancy (e.g. Peter Singer).

And then there is the view that, where reasonable people disagree, humanity should be presumed "just in case." For example, the argument goes, when the Valladolid debate between Juan Gines de Sepulveda (arguing for the inferiority of the indigenous peoples of the New World) and Bartolome de las Casas (arguing for their full personhood) ended in a stalemate, the presumption of humanity should have been given to the Indians because the risk of error in their favor would cause much less harm than the risk of erroneously concluding that they were sub-human.

Some vegans may advance a similar argument as well, basing their veganism on a desire not to harm animals just in case animals might have moral worth -- without being convinced that they do.

Sam Rickless said...

Just a thought in defense of egarber on the consent issue. You say:

"People frequently have sex without wanting to conceive and do not think of sex as an agreement to carry a pregnancy to term. There is always the possibility of abstaining from sex (or sterilizing oneself), but such measures strike me as an extreme imposition to place on women who want to avoid compelled pregnancy."

This is all true, but I wonder how probative it is. Suppose you know that if you walk through door A you will be attached to a famous violinist who needs your kidneys to filter his blood for nine months. You can easily avoid walking through door A. If you walk through door A voluntarily, then it seems to me that you have (tacitly) agreed to stay attached to the violinist for nine months (barring some unforeseen consequence, such as a serious threat to your life/health). To me there is a strong analogy between this case and the case of someone having sex *without effective and easily obtainable contraceptives* with full knowledge of the likelihood of pregnancy resulting from voluntary intercourse. Whether one "wants to conceive" or whether one "thinks of sex as an agreement to carry the pregnancy to term" is not relevant. What matters is the fact that one has chosen an easily avoidable course of action with full knowledge of its likely consequences. Of course, it's important here that the consequences be (easily) avoidable. But it isn't true that the only way of avoiding pregnancy is through abstinence or sterilization. Many contraceptive devices are 96-99% effective and readily available. [I am here ignoring complications, such as relative poverty compared to the cost of contraceptives, or medical hazards associated with effective contraceptives.]

tjchiang said...

Sherry, I don't mean to suggest my point as a rebuttal, but rather a qualification of your post. Your post mentions that you would support abortion restrictions only if perfect strangers were compelled to provide bone marrow transplants. What I suggest is that your logic only gets you to the point where, if we compelled fathers to give their daughters a bone marrow transplant to save her life, then it would be equally apt to force mothers to provide life support for their fetuses.

As you say, we have not reached that point yet. We force parents to provide financial support, but not tissue transplants. But it is a lot easier to imagine compelling parents to provide tissue transplants to their children than compelling random strangers to do it.

Bob Hockett said...

Fascinating and wonderfully thoughtful post and comments, Sherry and All. One quick question that's sort of connected to Sam's:

I've often wondered, in connection with the conscription argument as I first encountered it in the old Judy J Thomson article, whether ready avoidability of pregnancy wouldn't in some cases underwrite a sort of "induced reliance" argument applicable to *both* parents of the fetus (who I'll assume for present purposes is sentient). In other words, wouldn't it be less problematic to say that both parents have brought about reliance by a fetus upon tissue donation, and thus are more owing of such donation to the fetus than other people would be to "strangers" in need of bone marrow? If so, then perhaps a quite critical part of the argument for choice is in fact the unequal treatment brought by an abortion-restrictive regime that places the entire onus of "compensation" to the fetus upon the woman. (And if there would be literally no physical way to make the man "pay" his share, then the regime would be inavertibly gender-unequal, and in that sense inavertibly damnable?)

I should perhaps add that I've sometimes wondered whether we don't in fact owe one another our tissues in some circumstances in which some of us faultlessly come up short. And that fact itself, combined with a strange sort of egalitarian obsession that I seem to labor under, might partly account for my tendency here to home in on the differential treatment portion of the story.

What think you?

Thanks again!,


Paul Scott said...

I don't think it is fair to say that "reasonable" people disagree and include in that reasonableness conception. Scientifically, it is patently clear that the egg immediately after insemination is not sentient. The lack of sentience continues, at a minimum, until the point of formation of a brain and central nervous system. This is, mind you, very early in the pregnancy - occurring around the 10th week. But the belief that a moral being is created at conception is a religious assertion, not a reasonable one.

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