Review Essay of Robert P. George and Christopher Tollefsen, Embryo: A Defense of Human Life: Part 2

William E. May
© 2009 Culture of Life Foundation.
Reproduced with Permission

In this Part, I summarize Chapters 5 though 8 and offer reflections and comments on this very important book.

Chapter 5: Moral Dualism (112-143), is concerned with the claim of those who agree that all human beings, including humans in the earliest stages of development, are animals, members of the species Homo Sapiens. But they deny that all human beings have dignity or a right to life, whereas persons do. All human beings come into existence as non-persons, some never become persons, and others cease being persons before their bodies die. Chapter 6 examines different versions of this claim: (1) the Development View with its many varieties that holds that personhood results from the development of certain properties and abilities; (2) the Attribution View that personhood is not developed but bestowed on a human being by others; and (3) three further claims used to suggest that a human being as such is not a subject of rights, namely (i) that based on an alleged symmetry between human beings at developmental stages prior to development of the brain and brain-dead human bodies; (ii) that based on the fact that embryos have no rights because people do not grieve over their death; (iii) that based on the high rate of embryo loss in early stages of pregnancy (112-115).

George and Tollefsen begin their analysis/rebuttal of the Development View by examining the position of Judith Jarvis Thomson who has argued for it without referring to any particular properties or abilities marking personhood by comparing the right to life with the right to vote. Just as children do not have the right to vote but acquire that right only if allowed to develop normally, so too embryos and fetuses do not have a right to life but will acquire that right only later in their existence. Her fundamental error is the failure to recognize that some, but not all, rights vary because of place, age, ability and other factors whereas basic human rights, such as the inviolable right of innocent human persons not to be intentionally killed by others, do not. Our authors point out that it is reasonable to hold that having moral status at all, as opposed to having the right to perform a specific action in a specific situation, follows from an entity's being the kind of being it is; they then summarize many arguments, advanced in Chapter 3 against dualism, to show that human beings from the very beginning of existence have the radical capacity or active potency to develop the various properties/abilities alleged to make an entity a "person," and advance a new one. This is based on the fact that the various "properties/abilities" regarded as markers of personhood admit of vast differences of degree; some "persons" have more and others less degrees of them and those at the higher end of the scale would have greater rights than those lower on the scale, and the rights of the higher would trump those of the lower in any cases of conflict. Moreover, if this is so it follows that what is really of value are the alleged properties/abilities and not the "persons" having them in differing degrees (115-123).

They then examine the Attribution View of personhood, which claims that human beings or other entities become persons when others attribute personhood to them. George and Tollefsen examine and rebut the positions of 2 representatives of this view, Ronald Green and Carson Strong. Green's reasoning defending this view seems to follow from a more general and radical view of the nature of knowledge and reality, especially biological reality. He holds that biological knowledge and understanding is not a "matter of discovering important events in the entity that must dictate our judgment." We can't tell when an entity came into existence. In order to do so we must make a decision, i.e., a choice. Green says we make our decision on the basis of our values. There are, in short, no "right answers" to questions of this kind. Thus Green's view actually removes a motive for studying biology or any science in order to find out "what something really is," because it denies that biology or any science can give us facts that will settle issues of this kind. Truth is a matter of what we decide. His view of moral status or worth is similar; there is no "fact of the matter" about whether an entity has moral status or worth and no facts can help us discover whether one has or not. It is all dependent on our choice as guided by our moral values. Green does not regard as important values such as "the sanctity of human life," but rather such things as reproductive freedom, the advancement of medicine, scientific progress etc. His value system has no moral absolutes but is "pluralistic" and consists in an appeal to the "costs" and "benefits" "we," i.e., people like himself, think most important. This is obviously a quite arbitrary position (124-128). Strong's variety of the attribution view proposes we find a "model" or paradigm case of a human being with rights and identify with that model and measure other humans by it. While infants in some ways are quite distinct from the model, it would be dangerous to deny them all respect so we can confer on them some moral standing and a kind of right to life because of their potentiality to become self aware. But when we come to newborns or late term fetuses the dissimilarities with the model increase and for embryos are so dissimilar that the good consequences of denying them moral status justifies not endowing them with it. George and Tollefsen find Strong's view also quite arbitrary (128-132).

Both the Developmental and Attribution Views are arbitrary in assessing which human beings are worthy of full moral respect and considered persons and suffer from contradictions internal to them.

George and Tollefsen then take up arguments rejecting the personhood of embryonic human beings based on (i) the presence of a brain, (ii) the failure to grieve over the death of embryos, and (iii) the great amount of embryos "wasted" during early stages of pregnancy. (i) contends that since a person dies when his/her brain dies, a human embryo cannot be given the full moral respect persons have until a brain develops. The fundamental flaw of this argument is that "brain death" does not mean that a whole human organism is alive and that a person is dead but rather that the whole human organism is dead; the living human organism simply does not survive the brain's death; the irreversible cessation of the functioning of the entire brain is rather a sign that that organism is dead. The argument also overlooks the fact that although an embryo has not developed its brain, it has the active potency to do so; moreover, an embryo is clearly exercising self-directed integral organic functioning, a unitary organism and one identifiably a member of the human species. Argument (ii) is in part based on ignorance of the facts established by embryo science showing that at fertilization a distinct new human being comes into existence; parents aware of these facts do grieve over the early deaths of their unborn children; those aware of these facts who are indifferent to such loss are frequently reductionists who misdescribe embryos as clumps of cells or tissue masses, etc. Emotional responses toward early miscarriages usually results from what one thinks, rightly or wrongly, about the humanity of human embryos and such responses of themselves prove nothing. Argument (iii) is in no way probative. Embryo science, for example, shows that many unsuccessful pregnancies are caused by severe chromosomal defects, many of such kind that a true embryo was never formed but rather a disordered growth of some kind. Moreover, we need to remember that prior to modern medicine, infant mortality was very high and still is in many places. If (iii) were sound it would follow that such infants also could not be fully human and infanticide could be justly practiced (133-138).

Chapter 6: New Objections to the Humanity of the Early Embryo, (144-173) and Chapter 7, Further Challenges (174-201) investigate and refute the views of those who deny that the human embryo is an embryonic human being. George and Tollefsen point out, at the beginning of Chapter 7, that "this challenge is relatively recent. Twenty years ago there were philosophers who tried to establish that human embryos are not persons, but few denied the claim, supported by a solid consensus of human embryological authorities, that the human embryo is a human being. Such denials were more typically made in obviously political settings and newspaper editorials, where human embryos and even late-term fetuses were spoken of as 'potential human life.' It is perhaps somewhat suspicious that this new claim about 'potential human life' has more or less coincided with the rise in interest in experimentation on early human embryos" (174).

Chapter 6 disposed of one new challenge by showing that the human embryo at its earliest stages possesses a biologically unified life, the denial of which is crucial to two claims it considered together, namely, that (1) an embryo does not have such a biologically unified life, and (2) that the phenomenon of monozygotic twinning shows that it does not have such a life. It likewise rebutted the claim made by (3) Ronald Bailey that embryos are no more persons than the somatic cells making up an adult human's body, a similar claim by (4) Lee Silver, and (5) Silver's further claim that the early embryo has only "vegetative ," then "sentient" life and goes through ontological changes in its nature.

Regarding (1) George and Tollefsen declare: "it belongs to their paradigmatic understanding of what it means to be an organism of a particular species, and of what it means to be a person, and that both organisms and persons are wholes, entities sufficiently unified that they can reasonably be considered to be one particular thing" (147). They then recapitulate the philosophical arguments and evidence from embryo science already advanced that clearly demonstrate that the human embryo, in its earliest stages, is indeed a living organism of the species Homo Sapiens (pp. 151-158). (2) The same arguments and evidence also show that the phenomenon of monozygotic twinning in no way falsifies the truth that the embryo, prior to development of the primitive streak, is a unique individual: "The clearest evidence that the embryo in the first two weeks is not a mere mass of cells but a unitary organism is this: if the individual cells within the embryo before twinning were independent of the others, there would be no reason that each could not regularly develop on its own. Instead, these allegedly independent, noncommunicating cells regularly function together to develop into a single, more mature member of the human species…Thus prior to an extrinsic division of the cells of the embryo, these cells together do constitute a single organism" (156-157; see note 14 on 228-229 on scientifically based reasons why twinning does not falsify the truth that an individual human being was in existence prior to that phenomenon).

Claims (3) and (4) are then disposed of. Bailey argued on the basis of an analogy between embryos and somatic cells in light of the possibility of cloning, claiming that every cell in the human body has as much potential for development as the human embryo and that therefore the human embryo has no more inherent dignity or higher status than a somatic cell. He ignores completely the difference between the "potential" of somatic cells and embryos. The former have merely the passive potency to become a human being and its becoming one requires the action of an extrinsic cause (just as hydrogen and oxygen have the passive potency to become water but cannot do so on their own but require the action of an extrinsic cause) whereas the human embryo has the active potency dynamically to develop him/herself to further stages of maturity - fetus, newborn, 3 year old, teen ager, adult etc. (160-161.) Silver claimed that embryonic stem cells can develop into an actual person and thus are equivalent to embryos, and that therefore embryos are not persons but simply potential persons. His argument fails because it is not true, as he asserts, that "embryonic stem cells can develop into an actual person." Embryonic stem cells are functionally parts of a complete organism, the human embryo, and are not themselves organisms with the active potency dynamically to develop him/herself to further stages of maturity. Embryonic stem cells do not have this active potency (162-163). (5) Silver's other claim is that embryos must pass through different ontological changes before becoming human beings; they must first possess vegetative life, then sentient life, etc. Thus the answer to the question, "when does life begin?" depends on what kind of life one is talking about. He claims that sentient life cannot begin until higher brain functioning is present; since there is no higher brain functioning in early embryos they cannot have sentient life and are thus not human beings because human beings are sentient. "Silver, however, confuses the distinction between 'sentient life' and 'vegetative life' (the life of an animal versus the life of a plant), with the distinction between the life of a whole organism and the life of the tissues and cells that are functionally parts of an organism" (e.g., when a person dies because he has been shot through the head, many of his cells continue to live, but the whole organism has died). Thus the question is not "when does sentient functioning begin"? but "when does the life of this particular human being begin?" (166-168).

Chapter 7 addresses two further challenges to the claim that the early human embryo is a complete human being in an early stage of life. These are (1) Sandel's that just as acorns are not oaks, so embryos are not human beings, and (2) Paul Hugh's contention that human embryos generated by genital intercourse are human beings, those brought into existence by cloning are not. The Chapter then examines and rebuts the somewhat similar claims (3) of Gene Outka and (4) of Ronald Green that even granting much of what the defenders of human embryos hold, including their ethics of killing, necessitates the conclusion that all destructive experimentation on human embryos is morally wrong.

Sandel (1) admits that we value human beings because of the kind of beings that they are, and his analogy works in part because he thinks that acorns are different in kind from oak trees, or, for that matter from sapling oaks. First of all, he ignores the fact that acorns share the same nature as sapling and mature oak tries; that is, they are the same kind of entities. Thus the proper analogate of an oak tree is a mature human adult. Human embryos are valued as persons and as having moral dignity because they are the kind of beings they are - human beings, members of the human species; acorns, saplings, and mature oak trees are not valued for what they are but rather for accidental properties such as size. If we valued human beings in a way analogous to the way we value members of the oak family, there would be no reason to grieve over the death or killing of infants or even mature human beings who were "defective" in that they do not have some accidental properties. Thus his analogy leads us to think of the profound difference between the basis on which we value oak trees and that on which we value human beings, and this runs counter to his own acknowledgment that we value human beings because of what they are. Basically, Sandel's claim that embryos and human beings are different kinds of beings as are acorns and oaks holds only if one thinks exclusively of accidental properties such as size. This ignores the way a biological taxonomy works, namely, by determining what kind of entity a living organism is by discovering what the mature adult of a species does because all members of that species have species-predictable activities for which the earliest members of that species have the active potency or natural capacity to develop (176-184).

McHugh (2), while admitting that human embryos generated by sexual intercourse are human beings, thinks that "clonotes" (generated by cloning or somatic cell nuclear transfer [SCNT]) are not and that therefore one can morally experiment on and kill "clonotes" but not human embryos. The problem here is that the "products" of both are biologically indistinguishable; both are human embryos, the second a "cloned embryo." The embryonic Dolly did not, as McHugh claims, have merely the potential to become a sheep, but was a sheep from the very beginning, a living replica of the sheep from which she was cloned. Thus McHugh's claim fails miserably (184-189).

Before taking up views (3) and (4) George and Tollefsen point out that proponents of their own natural law ethical theory acknowledge circumstances in which lethal force can be used even if this results in the death of innocent persons. But why do they hold this? They insist that two conditions be fulfilled: first, the person against whom such force can be used is an aggressor attacking the life (ves) of others and must be stopped; second, the lethal effect, the death of the aggressor, is itself not intended but is foreseen as an unintended effect of the action that is intended to be necessary and sufficient to ward off the attack. Can thinking of this kind be applied to justify lethal experimentation on human embryos, even if one grants that they are human beings and merit full respect? Outka (3) proposes that the "nothing-is-lost" principle be used to permit lethal force when two conditions are met: one, that the innocent person will die in any case; two, that other innocent life will be saved. He then applies this to the embryos left over and abandoned after being manufactured by in vitro fertilization; lethal experimentation on them is justified because they will die no matter what one does and other innocent people can have their lives saved by development of new therapies such research promises. Outka calls the killing that is justified "direct killing," i.e., he does not hold, as do proponents of the natural law theory, that the lethal effect be "unintended." Outka gives a lifeboat situation in which all will die unless the boat is made lighter and one person is chosen, by random let us say, to be thrown overboard. He calls this killing direct. But does the one who throws him overboard intend to kill him? Or does he not simply foresee that he will die and chooses to save as many as possible. But Outka rejects as a form of Nazism killing a comatose person or a prisoner on death row in order to get their vital organs to save the lives of others, and these are surely forms of "direct killing." If so, what grounds are there for not applying the "nothing-is-lost" principle to such cases? The answer is that Outka really does not regard human embryos ontologically and morally as having full moral standing; he explicitly affirms that before individualization and implantation the entity does not have the moral standing of a fetus, nor is a fetus worthy of the same protection as is the woman pregnant with it. For him equal protectability holds only after the fetus is capable of independent existence outside the womb. Outka thus claims that frozen and abandoned human embryos are condemned to "perpetual potentiality," and that there are more affinities between fetal cadavers and such embryos. His argument suffers the same flaw as those already criticized in earlier chapters claiming that embryos are only potentially human beings (189-195).

Green (4) claims that destroying human embryos in scientific research need not be intentional killing. Green, be it noted, does not think that human embryos are human beings at all; whether an entity is a human being or not is determined by the choices people make, not by facts of science or nature. Green thinks that there are very good reasons both for creating human embryos for lethal research (as Outka does not) and for lethal experimentation on "spare embryos" left over from IVF. Yet he offered an argument that he thought might persuade those convinced of the embryo's humanity and personhood that it is permissible to engage in destructive research. He argues that embryo destruction is independent of human embryonic stem cell research and therapy (hESC). Surplus embryos are routinely created in infertility medicine, and thousands eventually become "spare" embryos. Green asks whether those who use hESC lines employ those who destroy the embryos needed to those cells and says that they do not unless they explicitly authorize creating embryos to be destroyed. Nor does using an hESC line indirectly encourage others to authorize such destruction, nor does it indirectly encourage a practice legitimizing destruction of human embryos in the future because the massive creation and destruction of spare embryos will continue with no need to create others. Green even contends that the researchers themselves do not directly destroy the embryos; what they do is dissolve the trophoblast and expose the inner cell mass. Doing this does not cause the death of the embryo; the decision to discard them does that. Such is Green's claim. George and Tollefsen think that the only thing making it plausible is the previous conclusion that the human embryo is not (as Green actually holds) a human being or person with a right to life. Even if one could make the case that the surgical procedure of dissolving the trophoblast is what is intended and the death of the embryo an unintended effect, the destruction is not justified because it would violate the norm of fairness - "even if the removal of the vital organs from a homeless vagabond for the sake of saving many was not an instance of direct killing…it is manifestly unfair to demand of him the sacrifice of his organs, or his life, for people to whom he has no obligations and from whom he will receive no benefits." Green's efforts to justify destructive research on human embryos fail (195-201).

The Conclusion (201-217) first re-affirms three basic claims: 1. Human embryos are human beings; 2. All human beings are persons; 3. Because they are persons, all human beings are the subjects of absolute human rights, among them the right not to be intentionally killed (201). George and Tollefsen then address 3 complex issues that they identify as The Political Question, The Technological Question, and The Cultural Question.

The crucial Political Question, given that destructive research on early human life is a form of wrongful killing, is what should be the appropriate response on the part of the state. After disposing of various apologias offered to justify state participation in such research, the authors present a dilemma to political liberals who refuse to rule out of court considering the merits of the authors' position on this issue and others like it: either refuse, without argument, to address the merits of our arguments or come to grips with those arguments. Only the latter approach is reasonable and an unbiased mind must accept the cogency of those arguments. Since the state and state laws exist to protect, promote its citizens well-being the following Political Proposal is made: "The United States should acknowledge, in law, the obligation to protect embryonic human life by prohibiting all embryo-destructive research. As a necessary means to this, the United States must maintain its current prohibition on federal funding for such research, and states should adopt similar measures prohibiting taxpayer-funded embryo-destructive research" (203-210).

Addressing the Technological Question George and Tollefsen propose ethically alternative ways of conducting scientific research that promises therapies for some fearful diseases etc. They note that despite claims made regarding the rewards of research demanding the destruction of human embryos, it is by no means certain that these will ever be reached. After reviewing scientific proposals that are ethically sound they make the following Technological Proposal: "The United States should significantly increase federal funding for research into adult, amniotic, and placental cells. Moreover, scientists should pursue, and the state should support, research into the dedifferentiation of somatic cells, altered nuclear transfer, and techniques to distinguish dead from living cryopreserved embryos" (210-215).

There is finally the Cultural Question, which is likewise a moral one, posed by the fact that thousands of human embryos are condemned to perpetual cryopreservation or destruction. What to do with them if one holds that they are innocent human beings with a right to life and right not to be intentionally killed? The authors make the following Cultural Proposal: "The United States should legally regulate the production of human embryos in IVF procedures to ensure that couples create no more embryos than they could reasonably expect to bring to term. To address the fate of the millions of embryos currently trapped in cryopreservation, adoption agencies should coordinate with assisted reproductive clinics and hospitals to offer the opportunity to couples to adopt embryos whose biological parents are unable or unwilling to bring them to term" (215-217).

Reflections on the Significance of Embryo: A Defense of Human Life

This book is indeed a treasure trove of cogent arguments persuasively presented to show that human embryos are indeed human beings, persons, who are endowed with certain inviolable human rights, including the right not to be intentionally killed. They have examined in depth various arguments advanced to support these claims: first, that human embryos are either not human beings at all, or are not persons (who alone can possess rights); second, that they do not have the same moral status as other persons whose development has reached maturity and are not in some way severely handicapped in exercising the activities associated with persons, even if one grants that they are both human beings and persons; and third, an assortment of other claims seeking to justify destructive research on human embryos. It seems to me that they have given due consideration to every challenge to their claims and give sound reasons and evidence for rejecting those challenges.

I want to make a few suggestions.

"Rights" vs. "Liberties"

First of all, it seems to me that their defense of human life, particularly in its embryonic stage, could be strengthened if they distinguished, as John Finnis does in his great book Natural Law and Natural Rights between a "right" and a "liberty."1 Finnis emphasizes that in order to distinguish a right in the strict sense, or what can be called a "claim right" from a liberty or a "liberty right," it is necessary to speak of a three-term relationship between two persons (or groups of persons) and an act of a specific type. Paraphrasing Finnis, we can put matters this way and speak of a claim-right as follows:

To illustrate: Innocent human persons (=A) have a right in the sense of a claim right to life if and only if innocent human persons (=A) have a right that all other persons (=B) have a duty to innocent human persons (=A) to forbear intentionally killing them (=x). In other words, the right of innocent human persons to life, if genuine, means that all other persons have an obligation or duty not to kill them intentionally. Applying this to unborn children, we can say: Human embryos have a strict right or claim right to life if an only if embryos (=A) have a right that their mothers and other persons (=B) have a duty to embryos to forbear aborting them, i.e., intentionally killing them (=x). And, as George and Tollefsen have demonstrated, this right is genuine because all persons, including mothers, have a strict obligation or duty to forbear intentionally killing innocent human persons, and abortion is the intentional killing of an innocent human person. Note that with respect to a right in the strict sense, a claim right, the action in question is required, not of the right-holder, but of other persons. With reference to the right to life, the action required is first and foremost an act of forbearance (of refusal to kill intentionally) required of all who must respect this right. With respect to abortion, the action in question is not an action of the unborn, but an action of others (mothers, etc.) and is again an act of forbearance, of refusing intentionally to kill the unborn by aborting them.

If we express the alleged "liberty" of a woman or others to destroy embryonic human beings not as a two-term relationship between a person (a woman or research scientist) and a thing (an abortion), but in a three-term relationship between two persons and a specifiable action, we see that the alleged right is really a "liberty" claimed by women or research scientists. It can be put generally as follows:

B (=a person, group of persons, etc.) has a liberty relative to A (=a person, a group of persons, etc.) to x (=some specifiable act), if and only if A has no claim right that B should not x.

Translating this talk about an alleged "liberty" of women and research scientists to intentionally destroy embryos we can say: A woman or research scientist or anyone (=B) has a liberty relative to the human embryo (=A) intentionally to destroy it (=x) if and only if the human embryo (=A) has no claim right that the woman or research scientist or anyone (=B) should not abort it (=x). But, as our authors have demonstrated, the human embryo has the claim right that his or her mother (and others) forbear from destroying it. Consequently, the liberty (and not right) claimed by women and research scientists to destroy human embryos is a spurious and not authentic liberty.

The "Active" Potency or "Radical Capacity" vs. "Passive Potency" or "Developed" Capacity Distinction

This distinction is most important and is relevant to many of the criticisms the authors level against those who wish to engage in destructive research on human embryos. Still it may be a difficult distinction to grasp; therefore, it seems to me that the authors could help others understand it by use of some good examples. Here is one: members of the species "eagle" have the radical capacity or active potentiality, rooted in their being the kind of beings they are, to soar loftily in the air; eaglets who have not as yet developed this capacity and adult eagles whose wings have been broken, are not able to exercise this capacity, but the fact that this capacity is not presently exercisable does not mean that it is not a radical capacity or active potentiality rooted in the nature of all members of the species "eagle" and not merely potential in a passive sense.

I hope that these minor suggestions may be of some value.


1 John Finnis, Natural Law and Natural Rights (Oxford/New York: Oxford University Press, at the Clarendon Press, 1980), pp. 199-205 "An Analysis of Rights Talk." [Back]

A (=a person or group of persons, or all persons if we are speaking of basic human and inalienable rights of human persons) has a right (a "claim right") that B (=another person group of persons or all persons) should x (=some specifiable act), if and only if B has a duty to A to x.