According to Newsweek of June 2nd. 2003, the question of the rights of the unborn embryo is emerging again as a major concern in the U.S.A.. In trying to find ways of dealing with this question, people take two fundamentally different positions. One is that there is no commonly accepted form of reason on the basis of which shared conclusions could be reached. Therefore, legislators must simply find out what the majority will accept and frame law accordingly. If they get it wrong, they will not be elected or re-elected and that is all there is to it. But this would be to concede that no real public discourse is possible and that law-making in a democracy is fundamentally arbitrary and irrational. Many would find this unacceptable and opt for the second position.
This holds, that, because policies and law in these matters deal with questions which concern all, they must be based on a form of reason acceptable to all. Those that take this position would usually go on to explain that to qualify as reason in this sense, arguments must rest on generally available premises, as distinct from the convictions of particular groups. It is generally assumed that religiously based beliefs do not qualify as reason. Further, it is often taken for granted that Catholic views on these matters are based only on religious faith, and therefore have no claim to be taken seriously in the public debate. Accordingly, where the Catholic Church seeks to contribute to that debate and to influence decisions about law, this is interpreted as an unjustified attempt to impose its particular religious views on others.
It is interesting to note that it is often presumed that it is precisely "religious" beliefs which cannot be admitted to this public rational discourse, while various philosophies, even when their rational validity is strongly contested by other philosophers and whose foundations are also based on a kind of faith, secular if not religious, are given ready admittance. Utilitarianism is a good example.
Catholic spokespersons insist that their doctrine is not exclusively a matter of religion or faith, but is supported by reason in the form of the natural law. But this itself is frequently interpreted by its opponents as a moral theory based on religious authority. Therefore, they claim, the Catholic natural law position cannot be accepted as a contribution to the "reasoned" debate on the subject. This article will challenge that contention.
Catholic moral teaching, as it is understood by those who propound it, is founded on both revelation and reason.1 But the problem is that the type of reason proposed by Catholic spokespersons is not generally accepted as reason by other groups. How then may the Catholic case be presented in the public forum?
In our cultural and philosophical climate, it is unlikely that those who defend the Catholic position will be able to convince the community as a whole that there is a universal form of reason which all must accept and that this is expressed in the Catholic interpretation of the natural law. Therefore, I suggest, there is not much to be gained in the public debate by simply insisting that the Catholic position is based on reason and that therefore all should recognize it. However, there is another way of approaching the problem.
The first step is to examine the kind of "reason" invoked by those who deny the rights of the embryo and hold that abortion is justifiable by reason. Those who claim to be articulating their arguments in a forum of reason available to all, may be held to at least two requirements. First, their claims must be based on reasoned argument, and not merely on unsupported assumptions. Secondly their arguments must be internally coherent.2 These are demands of reason which cannot be denied without lapsing into arbitrariness and incoherence. Such defects would render a moral position incommunicable within a human society; it could not be become the basis of any moral consensus.
On the other hand, it can be shown that the Catholic positions on the question are not based merely on "irrational" religious assumptions; they have rational structure and content and are internally coherent. As such they can legitimately claim the attention of all persons who are committed to being reasonable and cannot be simply dismissed as based on irrational religious claims.
The basic point at issue between those who accept abortion and those who reject it, is the status of the embryo and, in particular, whether it should be acknowledged to be a person or not. It is by examining the kind of reasoning which is employed by either side in this controversy that we can discern what "reason" actually means in the debate.
The most obvious fact about the controversy is that the opposing sides are quite unable to agree. This is because each side starts from quite different presuppositions and it is these which determine the answers that are reached concerning the personhood of the embryo. The differing assumptions can be detected in the way in which the burden of proof is allocated in the argument.
The burden of proof refers to the way in which an argument is structured. For example, in the "Anglo-Saxon" legal systems, it is usually claimed that the burden of proof falls on the prosecution. The one accused must be presumed to be innocent unless the accuser can prove the contrary. There are other legal systems in which the opposite is the case. The burden of proof there falls on the defendant. He or she is presumed to be guilty unless the contrary can be proved. Since it is often difficult to present a knock-down, drag-out argument for one side in such a case, the outcome is largely determined by the way in which the burden of proof is assigned. This is true also in the arguments about abortion and in particular those about the status of the human embryo.
The arguments of those who would allow abortion, ethically and legally, can be shown to rest on the supposition that the human embryo is not to be accepted as a person, unless the contrary can be proved. The burden of proof thus falls on those who would defend the position of the embryo and in particular its right to life. On the other hand, those who reject abortion, ethically and legally, presume that the embryo is to be regarded as a person, unless the contrary can be proved. In this article, I will argue that we can detect the basic assumptions that underlie the different ways in which the burden of proof is established and subject them to a reasoned critique.
However, at this point, we need to pause in order to clarify the meaning on the word "person" in the context of these arguments. To recognize a being as a person entails both an ontological and a moral judgment. By an ontological judgment, I mean a judgment that the embryo possesses or does not possess certain qualities which characterize the way it is in the world and, more particularly, the way it is with respect to the human community. In short, it is a judgment that the embryo is a certain kind of being.
Our inquiries about the status of the human embryo can be directed by different kinds of interests. A scientist may investigate the embryo purely for the sake of increasing scientific information. The kind of objective knowledge about the condition of the embryo which a scientist seeks, may indeed be considered as simply good in itself. Knowledge is attractive to those endowed with inquiry minds. But the scientist may also be guided by an interest in healing a damaged embryo. The objective knowledge she attains may also be good in the sense of being useful in devising therapies.
But the interests which guide the search for knowledge about the embryo, in the context of the debates about abortion, are different. Here the interest is complex. The inquirer seeks to discover what kind of being the embryo is, that is, its ontological status, but she does not seek this knowledge simply because it is good in itself or useful. Such knowledge is sought because it is needed to form a moral judgment about the embryo, in particular, a judgment concerning what our relationships with the embryo ought to be.
The moral question cannot be answered without some consideration of the ontological status of the embryo. To form a moral judgment we need to know something about what the embryo actually is. In other words, we need to know something about the nature, the capacities and qualities of the embryo. But the more important question is why these features count. They count because they are the basis of our judgment as to whether the embryo is or is not to be considered a "person." We need to be able to answer this question if we have an interest in judging wether the embryo may be killed (aborted) or not.
Thus, it is not sufficient to have recourse to an ontological definitions of "person" such as that often invoked in Roman Catholic treatises on the meaning of person. This is, of course, the traditional definition which goes back to the philosopher Boethius in the sixth century. According to Boetheius a person is "an individual substance in a rational nature," which we can translate as, "a living individual with a rational human nature."3 However, an ontological definition, does not, of itself, provide a moral argument, that is reasons why the embryos life ought to be fostered and protected and why it ought not to be killed. But it is precisely this kind of argument that we are interested in. How then may we move from an ontological judgment about the embryo to a moral judgment?
To attempt to derive a moral requirement to protect the embryo (and not to kill it) simply from a description of its ontological status is to attempt what is logically impossible. A proponent of the pro-life position, does not derive this moral requirement from an abstract description, but from a description as taken into account by one who is already morally committed to fostering and protecting any being which concretely fulfills this description.
We do not simply move from an ontological judgment to a moral judgment about the status of the embryo; we can make such a move only if we already have certain moral commitments, and, indeed certain moral priorities. The pro-life community is already committed to protecting human life; it allocates the burden of proof for argument in a certain way, and discerns and evaluates the qualities of the embryo accordingly. The liberal community is already committed to protecting freedom, in this case the freedom of the woman concerned; it allocates the burden of proof accordingly and discerns and evaluates the qualities of the embryo accordingly.
Where the presuppositions of the pro-life position are accepted, the features enumerated above, count because they enable the embryo to engage in those forms of relationship which are constitutive of the human community and enable the other members of that community to enter into such relationships with it. The point is not simply that the embryo has a nature, such that it will be able to perform rational and moral acts in the future.4 Rather what is significant is that it has now the capacity to enter into the relationships which constitute human community.
Precisely because the embryo is a human embryo, it can be related to in a human way, something which would be impossible where it not human. Relating to it in a human way means acting towards it in such a way as to foster its development towards those later stages when it can enter fully into the web of human relationships which constitutes the community. This way of relating to it clearly excludes killing it. May we say that the embryo also has the capacity to actively relate to others, in addition to being related to by others? The embryo cannot, of course, relate to others, by conscious, intelligent choice. Nevertheless, it is not a merely passive object and responds to the initiation of relationships by others as an active subject. This capacity also ought be respected and fostered. (The assumption that only conscious capacities to relate count in moral judgment is an assumption by the liberal view that will be contested later.)
The moral requirement itself emerges from the conjunction of a recognition of the capacities of the other being to enter relationships and an already existing, general commitment on our part, namely to enter into and promote those relationships of which we and other beings are capable, so as to foster the development and welfare of those beings and, with that, our own development as moral beings. Those who are committed to the Christian tradition acknowledge such a basic, prior commitment, which they express in terms of loving their neighbour.
Most would agree that one of the most important things we ought to do in the world is to promote the well being of the human community. This would entail fostering the welfare of the individual members of that community and protecting them from injury and death. Thus, the key question is, whether the human embryo is to count as a member of that community or not. Those who accept the pro-life position, argue that it ought to be accepted as a member: those who refuse to recognize the rights of the embryo deny this.
The basic question then is, ought the human embryo be accepted as a member of the human moral community or not? The word "moral" is added here to recall to mind that the concern here is not merely the ontological nature of the embryo, but its membership (or non-membership) of a net-work of obligations and rights.
What is the structure of the argument by which the embryos membership or non-membership of the human community is decided? At this point we return to a consideration of the different ways in which the burden of proof is to be allocated. Those who deny the rights of the embryo and allow it to be aborted, base their argument on the assumption that the human embryo is not a member of the human community, unless the contrary can be proved. Since it is not a member of that community, it does not have the same rights as those who are members (like ourselves) and may be killed. In other words, it is to be presumed to be "guilty" of not being a member of that community, unless this can be proved.
On the other side, those who support the rights of the embryo assume that the embryo is a member of the human community, unless the contrary can be proved. Since it is a member of that community, it has the same rights as the other members, including the right not to be killed.
Arguments here are usually expressed in terms of whether or not the embryo has "consciousness" or not. There are variations on this; some ask whether the human embryo has something called "sentience." But we can make sense of such arguments only if we read them as, in fact, claiming that, without consciousness, the embryo is not sufficiently like us to qualify as a member of the human moral community. If it is not a member of that community, then the presumption is that it does not enjoy members rights, among which is the right not to be killed.
The argument that I have outlined above, that is, the argument based on the two factors of the embryos capacity to be related to and to relate, together with our prior commitment to relate to such beings, is not the same kind of argument as that which seeks to prove that the embryo is or is not sufficiently like us. Whether it is like us or not is a secondary consideration; what is significant is that we can enter into relationships with it. When we base our attitudes to others on whether they are sufficiently like us, we are on the road to discrimination against them.
However, it is the basic difference in allocating the burden of proof, rather than the particular arguments, that decides the outcome of the cases presented by each side. Three points therefore need to be established; first, that the arguments from either side do indeed entail such a distribution of the burden of proof; second, that this distribution determines the outcomes of the arguments, and third, that one form of distribution is to be preferred to the other.
The actual arguments, both those against the personhood of the embryo and those in favour of it, will work only within the respective presuppositions of those who propose the arguments, that is, in reference to the way in which they place the burden of proof. Thus the real dispute is about where the burden of proof should be placed. One side presumes that the embryo is not a person, that is not a member of the human moral community; the other side presumes that it is. On the one side we have a presumption of exclusion, on the other, a presumption of inclusion.
The structure of the two types of arguments can be presented as follows:
1. The human embryo is not to be considered as a person, unless the contrary can be proved.
But the contrary cannot be proved.
Therefore, the human embryo is not to be considered a person. The burden of proof is on those who challenge the first premise. They must prove positively that the embryo is a person.
2. The human embryo is to be considered as a person, unless the contrary can be proved.
But the contrary cannot be proved.
Therefore, the human embryo is to be considered a person.
The burden of proof here, again, is on those who deny the first premise. What must be proved is that the embryo is not a person. The key issue in the arguments is where the burden of proof is set. The arguments, either for the embryos being a person, or against this, are not conclusive when considered in themselves, apart from the assumptions about where the burden of proof lies. The reason why neither side in the debate can convince the other, is that their respective arguments never meet each other, because of their different presuppositions concerning the burden of proof.
With the help of this framework, illustrating how the two opposed arguments function, I will now analyse first the liberal and then the pro-life position, with particular reference to the Roman Catholic position. The meaning of the word "liberal" in the present context means a certain way of arguing, based on certain presuppositions which I will now explain.
The liberal view, adopts the first type of argument, that is, it presumes that the embryo is not a person. This is not always stated explicitly in the relevant texts, but it is implicit, for example in the argument of Justice Blackmun, of the U.S.A. Supreme Court, in the Roe v. Wade case of 1973 which, in effect, allowed abortion in the U.S.A. The question the court dealt with was whether or not the state has a compelling reason to prohibit abortion. It was decided that such a prohibition would violate the womans right to privacy.5 Note that by interpreting the issue as one affecting only the womans privacy, any consideration of the embryos being a person, with rights, is excluded from the outset. This is a private matter for the individual woman; the embryo does not enter into consideration. The community may and ought intervene so as to protect her rights: the embryo has no rights to protect.
At this point, I am concerned with the form of the argument. It is evident that it is presumed that the woman has rights and that the embryo does not. The burden of proof is then placed on those who defend the embryo. But once this form of argument is accepted, since no apodictic, conclusive arguments are available which can prove that the embryo is a person, the argument will inevitably be won by the liberal view. The argument is decided from the moment the burden of proof is laid on those who would defend the embryos right to life.
I have claimed that this position presumes the embryo is not a person. It might be objected that those who hold this view do not simply presuppose it, but prove it by argument.
I would contest this. The arguments that are usually presented in support of the liberal view are not really arguments, but summary statements of unstated presuppositions. I will now seek to support this assertion.
The arguments are usually based on two points, consciousness and interests. According to the first, to be a person means to have consciousness, or at least the capacity for consciousness. Consciousness is a word taken from the writings of John Locke. Commentators have been unable to decide on what precisely Locke meant by it, but it is still nevertheless used in this argument.6 The human embryo, it is said, does not have consciousness. Therefore it is not a person. We can note the assumption: to be a person, an entity must have consciousness. Thus, in brief, where there is no consciousness, there is no person and so there are no rights.
The second argument is from "interests". Ronald Dworkin argues that what gives a being moral status, is its capacity to have "interests".7 An interest is indicated by the presence of a psychological condition, for example the feeling of disappointment and frustration. Such conditions are unlikely to be present prior to the point of cortical formation.8 Therefore, before this point, the embryo has no interest in surviving. Therefore killing that embryo is not against its interests. There may be other reasons why an embryo should not be killed, for example, it may be the object of very strong positive feelings on the part of its parents, who would suffer greatly if were killed. But, according to this view, there are no reasons, inherent in the being of the embryo itself, why it should not be eliminated. Thus, where there are no interests there is no person. It follows, according to this kind of argument, that since the embryo does not have interests it is not a person.
Note that both arguments are designed to defeat the counter argument which aims to establish that the embryo is a person. They do not prove anything positive. Indeed, they work only when they are put forward in an argument that is structured on the assumption that the embryo is not to be considered a person, unless the contrary can be proved. Their function is to show that the contrary has not been proved. Thus, what we need to examine is the foundation for this basic assumption.
Why is it that a being who does not have consciousness is to be considered not a person? We are often told that this is so because what "we" normally mean by the word "person" is a being endowed with consciousness. This does not provide a very convincing foundation. If this were all there were to the argument, it would mean that the criteria for personhood rest on the presumed assumptions of unreflected and untested common opinion. There is, however, a kind of argument here, and it takes the form: the embryo is not to be considered a person, and so a member of the moral community, simply because it, not having consciousness, is not sufficiently like us, who do have consciousness. Or, as in the second argument, it is asserted that the embryo does not have interests in the way we have interests, and therefore is not sufficiently like us to merit the title of person. It does not, therefore, have a right to life, and may be destroyed. But an argument which would justify eliminating another being, merely on the grounds that it is not sufficiently like us, is simply unfounded discrimination.
The argument, however, may rest on more elaborate considerations. The term "person" as used by those who deny this title to the embryo, seems to reflect certain presuppositions which may be found in the writings of John Locke. For Locke, "person" that is our name for the self, "is a forensic term, appropriating actions and their merit; and so belongs only to intelligent agents, capable of a law, and happiness and misery,"9 Locke wrote previously in the same work: "In this personal identity is founded all the right and justice of reward and punishment; happiness and misery being that for which every one is concerned for himself, and not mattering what becomes of any substance, not joined to, or affected with that consciousness."10 As Taylor remarks: "Locke's person is the moral agent who takes responsibility for his acts in the light of future retribution."11
Since the human embryo is not capable of assuming such responsibility, it cannot be a person, in the sense described. Furthermore, according to Lockes theory, the individual becomes a member of that community by entering into a contract. But to be able to make a contract, one must obviously be conscious. But since a embryo does not have consciousness, it cannot be a member of the human community, and therefore it does not have the rights that such members enjoy, in particular the right to life.
Similarly, the second argument appears to presume that society and its structures exist to protect the individual interests of its members. Therefore, an entity which does not have interests does not enter into that sphere protected by society.
We can now examine these arguments. Lockes notion of the person as an individual who is an intelligent agent, responsible for its actions, is in itself perfectly acceptable. It is quite in order to give words a particular meaning, provided one declares this meaning to ones opponents in debate. According to such usage, the embryo, is, of course not a person. But even if we accept that the embryo is not a person, in this sense, it does not follow that the embryo is not a member of the moral community, and cannot have claims on the other members of that community. Nor, does it follow, of course, that not being a person in this sense, it may be killed.
The conclusion, namely that the embryo is not a member of the moral community, and has no rights, even that to life, does not follow even from the contractual theory itself. Locke himself accepted that there must exist some kind of morality prior to the contract, and that there were natural rights inherent in the state of nature, prior to the contract.12 We can add, that if there were no morality prior to the contract, then the contract itself could have no moral binding force. Furthermore, a contract cannot itself created the foundation on which its validity rests.
Even if we accept that human society is based on a contract, and that this contract requires consciousness on the part of those making the contract, it does not follow that only those who have consciousness can be protected by the morality which must exist prior to the contract. Nor does it prove that only those who actually have consciousness could be recognized by the contract itself as members of the society, having a right to life. Nor, again, does it follow that only those who actually have interests merit protection by society.
To prove the liberal case, it would be necessary to prove two things: first, that the pre-contractual morality could not protect the pre-conscious embryo, and second, that the kind of contract which was made by conscious beings, could not protect that embryo. The pre-contractual morality is, of course, hypothetical, just as is the original contract itself. What would have to be proved, on the presuppositions that have been made, would be that it is logically impossible for the contract, which is required by this theory, to also include obligations to non-conscious embryos.
But why must it be excluded a-priori that the contracting parties could have reasonable grounds for constructing the agreement in such a way as to protect the embryo? Why would it be necessarily unreasonable for those who make the contract, to recognize the pre-conscious embryo as a member of the community, and so to accord it rights? No proof is provided for these assumptions. One could argue thus only if it were further presumed that those hypothetical contract makers would necessarily reason in the same way as those who want to deny the personhood and the rights of the embryo. But why should the latter way of reasoning be the universal norm for all reasoning? Again, no proof is offered to support such an assumption.
John Rawls, in his well known work A Theory of Justice, sought to show what the ideal contract makers would include in the contract by which society was established.13 Specifically, he argued that a just social and political system should be so structured as to protect those who might end up at the lower levels of the hierarchy of society. This is a feature of Rawlss theory which makes it attractive to those who are committed to equality in society.
Must it be presumed that the pre-conscious embryo is not to be included among those who ought be so protected, on the grounds that an actual embryo does not have the capacity to engage in the kind of reasoning which the hypothetical contractors used to establish their pattern of society? I would argue that this does not follow from Rawls theory itself. All that follows is that a pre-conscious being cannot make the contract which forms the community. It in no way proves that this pre-conscious being cannot be protected by the terms of the contract.
It might be further argued as follows. Those who make the hypothetical contract structure it in such a way that those who would otherwise end up at the bottom of the heap in the order of freedom and opportunities, will be adequately provided for. They do this precisely because each one must reckon with the possibility that it may be she or he who would end up in this position. Their reasoning is based on pure self-interest. But none of the participants in the contract making, whatever other mishaps may occur, are going to return to the state of being an embryo. Therefore, self-interested reason would not require them to protect the status of the embryo.
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What is the status of this "reason"?
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