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.