by Sherry F. Colb
In my Verdict column this week, I discuss the abortion bill currently under consideration in Ohio, which would ban abortion motivated by the Down Syndrome status of the fetus. In the column, I discuss four different kinds of abortion restrictions, where this particular bill fits into the typology, and some of the arguments in favor of and against a restriction of this sort. I ultimately conclude that women should have the right to terminate a pregnancy for any reason at all, because of both the bodily integrity interest at stake and the status of the pre-sentient fetus (one that cannot yet have subjective experiences such as pain and pleasure) as a potential but not an actual person. In this post, I want to speak directly to an argument that pro-life advocates sometimes make and would likely make in response to my column: a human embryo (or fetus) is made up of human rather than giraffe or orangutan DNA; a human embryo is a separate organism rather than a part of another organism's body; a human embryo is therefore a human being from the moment of conception.
Much ink has been spilled on the question of when life begins. Those who take the pro-life view that life begins at conception argue that there is no better line of demarcation than conception, the moment when a separate human organism comes into being. This argument has at least one noteworthy problem. The notions that a one-celled human zygote is a "person," entitled to "human rights" and that it is--in its present state--the equal of a newborn human baby are highly counterintuitive. None of the special reasons that most of us would give for granting "human rights" to a person (or animal rights to an animal) would appear to apply at all to a zygote.
A zygote is incapable of having any of the feelings that distinguish a human being from, say, a tomato. Assuming (as the evidence appears overwhelmingly to support) that tomatoes and other plants have no feelings (of pain, pleasure, satisfaction, etc.), their inability to feel anything is an important reason for not extending rights to plants. It would make no sense to say that you may not inflict torture or captivity on a plant, since a plant would be unable to experience "torture" (lacking the capacity to feel pain), and a plant would not know that it is in a captive environment, and it could not, in any event, run around or otherwise enjoy the freedom of an open and unrestricted environment. It lacks the basic foundation for rights: sentience. This is why people who believe in the rights of sentient beings are comfortable consuming plants while avoiding the consumption of animals and their involuntarily induced and extracted bodily secretions.
To some degree, the question of when human life begins is unanswerable on its own. For what purpose are we asking? If we are asking when the odds dramatically increase of there ultimately being a newborn baby at the end of the process, then the answer would depend very much on whether a zygote is conceived inside a person or whether it is conceived, as many currently are, in a petri dish in a laboratory. If the latter takes place, then the odds of the zygote growing into a baby depend, among other things, on whether it is selected for implantation into a willing host. If nature is left to "its own devices," in the case of a laboratory-fertilized egg, then the resulting zygote and embryo will eventually disintegrate and die before it becomes anything resembling a "person."
If, however, one is asking a question about the morality of terminating the life--and thus about the moral status of the life in question--then it would seem completely irrelevant whether the zygote or embryo is located inside a woman or whether it is located in a test-tube inside a laboratory. Either way, we either do or do not have a "person," regardless of what the "odds" are of survival and further development without human intervention. Likewise, when we have an uncontroversial moral person, such as a three-year-old child, the status of that person as healthy or as very ill and likely to die soon has no bearing on whether the child currently is or is not a person: he or she unquestionably is.
Biology accordingly cannot definitively answer a moral question until the criteria for answering the moral question have been identified. What makes a "person" (whether that person is a human person or a moral person of a different species, in virtue of the traits that are morally relevant) entitled to rights against violence, killing, and exploitation? I would argue (and have argued in my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans) that the answer is sentience, the capacity to have subjective experiences such as pain and pleasure. Until an entity gains that capacity, the entity has no welfare, no interests, and accordingly no moral entitlement to be free of harm or to continue existing.
Under the sentience criterion, "life"--a life that is entitled to protection against termination--has not yet begun at the point that an egg is fertilized. Fertilization of an egg is part of a process through which a morally cognizable life comes into existence, but it is not the completion of that process. I would hasten to add that one need not wait until birth for the process to be complete. Like fertilization, birth is an arbitrary point at which to identify the entity (now a baby) as having moral entitlements: little changes about a baby between the time when labor begins and the time (hours or, in some instances, days later) when he emerges from his mother's body, that would alter his moral status. If abortion is nonetheless permissible even after sentience, it is not because the fetus is "not yet a person" (though this was the law under Roe v. Wade); it is because a pregnant woman has an interest in restoring her bodily integrity against internal occupation, even when the occupier is a full person, vested with rights.
Thus, a late abortion (including one taking place directly before labor begins) poses a far more difficult moral challenge for the pregnant woman and for people generally considering the issue of abortion than does an early one. The weakness of the moral claim that "life [as in a moral entitlement to continued existing] begins at conception" helps explain why that is. And it suggests that someone who sincerely wishes to prevent the most morally troubling abortions will support legislation that removes obstacles from the path of women who wish to terminate early in pregnancy (especially obstacles like waiting periods that delay the abortion). Like limiting access to contraception, then, many of the measures taken by those who oppose abortion have an ironic tendency to increase the odds of the most morally questionable instances of this procedure. Of course, there is no irony if one truly believes that a zygote is the moral equal of a late-term fetus or newborn baby. If one is concerned about the morality of abortion, then, it is important to identify why and to support measures that best accord with one's examined views.