Abortion Rights and Parental Obligations

An Objectivist Account

The abortion discussion centers on personhood, the state of having rights recognized and respected. This is the focus because legal obligations only arise in the context of rights — whether the obligation is to refrain from coercively interfering in another’s pursuit of life and happiness, or to provide goods and services of some kind. In contrast, we can have no (legitimate) legal obligations to rocks and goldfish precisely because these are not the sorts of things which can have rights. So clarity on abortion rights and parental obligations requires understanding personhood as well as understanding the relationship between rights and obligations.

Throughout it is essential that we respect the fact that rights are inalienable absolutes which cannot come into conflict. Rights are principles identifying fundamental facts arising from the nature of humans and of the world. As Rand aptly put it, “Rights are conditions of existence required by man’s nature for his proper survival.” “A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.”² Moral principles in general are absolutes because they identify essential, metaphysically-given facts that must be respected and accommodated in the pursuit of human life.³ So there can be no clash and no valid “compromising,” “balancing,” or “trading off” of genuine rights — any more than there can be a clash or need to compromise between the principles that identify the movement of the falling apple and the movement of the planet it falls on. A rational account of human rights and abortion will never posit a conflict between or attempt the incoherence of “balancing” or otherwise compromising any agent’s absolute, inalienable rights.

I will begin by briefly reviewing the commonly proposed criteria for personhood, clearing the field of distractions. Then I will discuss the relationship of rights and obligations, highlighting a principle that dispels a certain “inevitable” clash of rights as illusory. Finally I will draw on elements introduced along the way to present a rational, scientific account of abortion rights and parental obligations.

Conception

A great many people contend that “life begins at conception” and that personhood should be recognized in fertilized human eggs.⁴ But it is plainly false that life begins at conception, as sperm and egg are each alive prior to combining at fertilization. Perhaps they mean that a unique human life begins at conception, as it is true that the fertilized egg is genetically human, unique, and alive.

However, in itself that is not significant to personhood: A cancerous tumor is genetically unique and has human DNA, but it is certainly not something which has rights — in fact, it is the sort of thing we strive to kill. And on the other hand, twins are not composed of genetically unique human tissue, yet they are clearly people with rights that must be recognized and protected. So being composed of genetically unique human tissue can itself have nothing whatever to do with the correct criteria for personhood.

But it is significant that a fertilized human egg has the power to become a human being who is fully formed and developed and a person living independently of its parents. That is, the fertilized egg is clearly a potential human being which, under the right circumstances, will become an actual human being who can be born and continue developing into adulthood.

Of course a potential is just that — a potential, not an actual. An acorn has the potential to become an oak tree, under the right circumstances. But a potential tree is not an actual tree: potential trees offer no shade, cannot be harvested for woodworking projects or bonfires, and so on. Similarly, a potential human being is not an actual human being: It can offer no love or conversation. It cannot eat, drink, or be merry. In fact, it is unable to do anything that we associate with people, in any degree or form. It is not the sort of thing that could need or exercise rights. So a rational account of rights and abortion will not allow any conflation of potential human beings with actual people whose rights can and should be recognized and respected.

While the point of fertilization cannot constitute the appearance of personhood, this does raise the significant question: just when does such a potential become actualized?

Viability

Viability is often proposed as the answer. It is defined as “potentially able to live outside the mother’s womb, albeit with artificial aid.”⁵ Viability, its advocates contend, is the point at which potential people having no rights become actual people with rights.

But notice that viability so construed shifts with advances in technology: It used to be quite near the point of natural birth. Then the 1970’s Supreme Court’s landmark Roe v. Wade decision noted that viability was near the beginning of the third trimester. It has been “receding relentlessly” since then and technological advances could in principle move it all the way to the point of fertilization with incubator replacing womb entirely.⁶ The absurdity of someday defining a single cell as a person indicates that something is deeply wrong with viability as a criterion.

The trouble stems from losing sight of the fact that our fundamental rights are rooted in and flow from the metaphysical facts of human nature — not from anything that might flow from, be defined in terms of, or depend in any way upon what our technology happens to make possible in any given era. Rights arise from the kind of things we are, not what technology enables for us; they are a recognition of the essential kinds of actions necessary for us to maintain our existence as humans, no matter our technological capabilities. The Court was no doubt working from at least an implicit understanding that the biological facts of the developing embryo are important, and the capacity to maintain one’s existence as an independent organism is clearly important to human nature and rights. But to then fixate on the narrow and technologically-bound idea of viability draws attention away from the essential facts about the entity’s nature that would give rise to personhood.

So while viability is certainly necessary to personhood, it cannot be sufficient and is not fundamental.

Birth

Many instead uphold birth as that critical point of personhood. Before birth, the fetus is contained within, attached to, and utterly dependent upon the mother for life support.⁷ After birth, the baby is separate and unattached, it (typically) has no reliance on life support because it is now using its own lungs and digestive system for air and nutrition, and while still quite needy it can be cared for by someone other than the mother.⁸

Notice first that while quite dramatic and important, this event does not itself constitute a metaphysically significant change in the basic nature of the organism. That successful births happen over a range of days is testament to the fact that the fetus is not suddenly transformed into something altogether biologically new with different capacities. Rather, being born means adjusting whether and how its existing faculties are used. For example, once outside the mother there are significant adjustments in how a human being’s circulatory system is routed as it begins using its own lungs to breathe.⁹ Being born means a change in location and operation, not any change in basic nature.

Birth also marks the end of a profound and intimate relationship of dependence on the mother. But note that this is primarily a change in degree and form of dependence, as newborns cannot survive without the right attention. So this cannot itself constitute a change in basic nature either. In fact, a relationship of utter dependence arriving or vanishing altogether is not determinate of any change in our basic nature, which is why being in a coma or attached to a life-support system are not in themselves relevant to the existence of rights. Consider the traffic accident victim in the hospital whose rights are uniformly and continuously recognized before, during, and after reliance on life support.

And as with the case of viability, instructive absurdities arise with the prospect of future technology replacing womb altogether: with no “birth” other than an owner deciding at some time to separate the entity from life support technology, this position would allow for denying rights in a fully-grown adult even as he demands to be released. This again indicates that something is deeply wrong in this criterion. In fixating on the event of birth with its relational changes of a physical separation from and shift in level of dependence on the mother, advocates of this position appear to have likewise lost sight of the fact that rights flow from the fundamental nature of the entity itself. Indeed, this very fact is flatly denied in maintaining that rights appear with birth: an induced or cesarean delivery on Monday would mean full recognition of a person with rights who cannot be morally or legally killed Tuesday — yet a late-term abortion scheduled for that Tuesday would mean killing the very same entity without any rights violation whatever.

Advocates of this position are correct to focus on the capacity for biological independence as important to personhood, and that capacity is clearly demonstrated in birth, so birth is certainly sufficient for personhood. But the event itself is not fundamental. Rather than wrongly focusing on shifting relationships to mother — or on shifting capabilities due to technology, as with viability — we must keep our attention squarely focused on the developing nature of the entity itself to determine whether and when it has rights.

Maturity

To round out our tour of criteria, note the uncontroversial point that we do recognize rights in fully-developed and -functioning human beings — that indeed, this is at the very heart of what rights are for. It is most obvious at maturity that humans require freedom to identify and pursue the values necessary to sustain their lives.¹⁰

The fact to highlight here is how being fully-developed and -functioning is likewise not a criterion for personhood: We recognize and protect rights in those who are not functioning humans currently exercising their distinctively human faculties; people do not lose their fundamental rights by merely becoming unconscious, disabled, or profoundly dependent as in the life-support example above. And similarly, we recognize the basic rights of those whose faculties are not fully developed. Waiting for full development before recognizing rights would mean that newborn babies must be excluded from recognition as people because many of their distinctively human faculties are not yet fully present, specifically neural ones (synapses “start forming during week 17 [of pregnancy] and multiply rapidly around week 28, continuing at a rapid pace up until 3–4 months after birth”¹¹). More to the issue, even young children would be excluded from recognition as they have not yet developed the most important and distinctively human faculty of all, the one that makes rights both possible and necessary in the first place: rationality, the basic tool of human survival.¹² Our capacity for conceptual cognition and moral agency (volition) does not arrive until years after birth.¹³

So being fully developed and fully functioning are not necessary for personhood. Before turning to what is required, we need to first clarify the relationship of rights and obligations.

Rights and Obligations

Rights are a recognition of peoples’ individual sovereignty and the fundamental harmony of interests that exists among rational agents. They codify the fact that we humans can and should live together in a non-sacrificial manner with no masters and no slaves — that we have absolutely no unchosen duty to serve as the means to others’ pursuit of life and happiness. Respecting rights demands the negative obligation of refraining from coercive interference in others’ pursuit of life and happiness.¹⁴ So a valid account of rights and abortion cannot posit unchosen positive obligations or duties for anyone, to anyone — whether the parties are adult, child, or unborn.

That is, all positive obligations arise by choice in a rights-respecting society. We are not sacrificial animals; socially, we are best characterized as contractual animals with the capacity for living productively by reason and dealing with others by persuasion and trade. Thus we can and routinely do choose to accept obligations to others in the course of pursuing the tremendous values possible to those living in a proper, rights-respecting society.¹⁵ It is important to note that undertaking obligations does not mean any limitation or ceding of one’s inalienable rights; indeed, adopting positive obligations is an expression and affirmation of rights. And one can violate another’s rights by failing in one’s (necessarily voluntary) positive obligations.

Consider that people can explicitly adopt responsibility for helping others, as with police and firefighters: in a free society of course these people have no automatic duty to protect or rescue anyone. But once they agree to do so, it becomes a rights violation to then arbitrarily withhold protection and rescue efforts as needed to their clients. (Unless doing their jobs would mean sacrificing their own lives, of course. While accepting such a job could entail agreeing to engage in extraordinarily risky activity, it cannot require outright suicide.)

And people can also implicitly adopt responsibility for caring for others: If Bob decides to take Mary for a ride out to sea, he does not have the right to then order her off his boat to her death.¹⁶ That would be murder because Bob chose to bring Mary — another person — into a state of vital dependence on him. Mary’s rights would be violated by then arbitrarily removing his support and thrusting her into mortal danger rather than delivering her safely from the dependent condition he created. (And note that such withdrawal of support would be a rights violation no matter whether she was threatened by his explicit design, depraved indifference, or mere recklessness.) Bob is responsible for Mary’s welfare until the dependence he invited has ended.

This provides a key principle for navigating the tangle of abortion rights and parental obligations.

Fetal Rights and Maternal Obligations

Recall that rights are rooted in the essential nature of the entity itself, that there is no metaphysically-significant change in the nature of the newborn at birth, and that we recognize its basic human rights at every point thereafter. This indicates that the point of personhood is reached some time before birth. But does this introduce an inherent clash of rights between mother and fetus? Are we faced with any call to compromise, “balance,” or “trade off” rights between them? No. On this account, all people retain all of their rights, completely intact. A mother can have no duties or claims forced upon her in a rights-respecting society; people can only be bound by obligations they choose to create.

The principle from the boat ride identifies how maternal obligations arise as fetal rights obtain: in choosing to let her pregnancy proceed to the point of personhood, the mother thereby adopts responsibility for the person she brings into a condition of vital dependence. Like the boat captain, she is not free to then arbitrarily kill or neglect her charge; that would be a clear violation of a person’s rights. She has chosen to shoulder the responsibility of supporting the fetus to independence, and this is a serious obligation she can and should be held to.¹⁷

Nonetheless, as with the case of firefighters and police, even an obligation this serious and risk-laden cannot demand suicide. The right to self-defense must be recognized for a mother whose life is threatened by a developing fetus. And it is important to see that such a circumstance is not unique to pregnancy: this is no different in principle from a boat passenger turning into a mortal threat to the captain, whether by purposeful design or random disease. The captain has the right to self-defense and may rightly eliminate the threat which came to him.

In general, every mortal “clash” between an unborn person and its mother must be approached in the same manner as we approach any such conflict involving people and their rights: under the banner of the government’s legal system. Its purpose is to resolve the endless challenging questions around just what constitutes a rights violation or threat, and just what is and is not a permissible response to such — all by reference to broad legal principles that address much more than pregnancy and childbirth.¹⁸

Reproductive Rights and Parental Obligations

Now recall that the point of personhood must be some time after fertilization. This means that requiring a woman to carry a fertilized egg to term in a misguided effort to protect its nonexistent “right to life” would be a gross violation of her rights, imposing bodily risk and a substantial, perhaps even crushing burden on her life.¹⁹ A pregnant woman must be left entirely free — as a matter of right — to consider and choose whether to continue or terminate her pregnancy; until the embryo reaches the point of personhood her actions cannot constitute a rights violation, and she can have no legal obligations regarding it.

This is the window in which the woman should work with the man to establish his parental obligations, if any, and this is accomplished by a natural application of basic rights and contract: If she desires parenthood but he signals he does not, she is still free to continue with the pregnancy and assume the attendant obligations alone — for she has no right to hold him to a parental commitment he did not accept. If he desires parenthood but she does not, she is nonetheless free to take steps to end the pregnancy — for he has no right to hold her to a parental commitment she does not accept. If both desire parenthood, they can and should establish a contract to that effect so she can allow the pregnancy to proceed to personhood, secure in the knowledge that their shared parental obligations are established and can be enforced.²⁰

Lives are complicated affairs and there is of course no end of difficult cases and circumstances to be dealt with. The point is not to detail them here, but to indicate how this approach allows them to be addressed in a fully rights-respecting way by application of the same mechanisms and broad principles used in the rest of life and law.

Attaining Personhood

Finally turning to personhood itself, recall that a human being need not be fully developed to be a person (indeed, it cannot be fully developed while in the womb). Nonetheless, a person must necessarily be an actual human being and not a mere potential. The point we seek to identify is where the entity becomes an essentially formed human being — a living human organism with essential organs and a nervous system, operating at least at some basic level to maintain its own existence as an organism.²¹ This captures the basis of the capacity for biological independence explicitly demonstrated in birth, and names what is implicitly recognized in the idea of viability when it is not bound tightly to technology. Importantly, this keeps our attention where it belongs: on the basic nature of the developing entity.

A glance at prenatal development makes it clear that this point cannot be in the first trimester, because the embryonic stages of development conclude only as “All essential organs have at least begun formation.”²² Indeed, early on, human embryos are largely indistinguishable from those of other mammals, with higher evolutionary features appearing later (like the cerebrum, the most sophisticated part of our brain, which develops last).²³ Later, in the fetal stages of development, weeks 25–28 feature rapid brain growth and the nervous system finally developing enough to control some body functions. At this point the respiratory system, while still immature, has also developed to the point where gas exchange is possible.²⁴ So the developmental point of personhood appears to be near the beginning of the third trimester, and this point’s candidacy is perhaps urged by the still later appearance in week 31 of “Thalamic brain connections, which mediate sensory input [and] form.”²⁵ Of course this is only a layman’s estimate; determining just when this stage of development is attained is a biological question that must be answered by scientists, not by philosophers.²⁶

It is interesting that, if the start of the third trimester indeed marks the developmental point for attainment of personhood, this would result in my arguing for an outcome which roughly agrees with the Supreme Court’s 1973 Roe v. Wade bottom line that a woman may abort her pregnancy for any reason until the fetus reaches viability (which the Court took to be at about seven months or 28 weeks), while abortion after viability must be available when needed to protect the woman’s life or health.²⁷ Unfortunately as explained above, the point the Court argued for was characterized using the technologically-bound concept of viability, thus clouding the essential issue of personhood. And their position was based on a “right to privacy” and entailed a balancing of rights against “state interests” rather than being an expression and defense of basic human rights as inalienable absolutes.²⁸ This has confused the discussion of rights and obligations, and hobbled our legal system’s pursuit of just and uniform treatment of the myriad issues around and beyond pregnancy and parenthood.

Conclusion

Prior to the point of being an essentially formed human being — of actually being a human being — an embryo can have no rights to be recognized or violated. So the pregnant woman must be left legally free as a matter of right to choose whether to carry an embryo to the point of personhood. After that point, the fetus is a human being with the attendant basic human rights, and these must be safeguarded in a rights-respecting society. This entails no clash or compromise of rights because parental obligations arise as fetal rights obtain: in choosing to bring another person into a condition of vital dependence on her, a mother elects to shoulder the responsibility of (non-suicidally) supporting that person to independence — a responsibility to which the father can likewise elect to be bound via contract.

Thus we have an integrated approach to fetal rights, reproductive rights, maternal obligation, and parental obligation. Importantly, this is an account that demands full and consistent recognition of the basic human rights of all as absolutes, never to be compromised or abridged.


(Please see this article’s companion Q&A for further discussion.)

Notes

  1. Originally written in July 2009 to capture and reflect on my developing understanding. Minor updates in October 2014 (mostly in formatting and footnotes). My thanks to David Lanning for many challenging and clarifying discussions about personhood and abortion.
  2. Ayn Rand, “Man’s Rights,” in Capitalism: The Unknown Ideal (Signet 1986). Essay also available online at http://bit.ly/1yHpF3n.
  3. Dr. Tara Smith, Ayn Rand’s Normative Ethics: The Virtuous Egoist (Cambridge University Press 2007), p.241
  4. PollingReport.com, “Abortion and Birth Control,” available online at http://bit.ly/1F4FO4o. Personhood at conception appears to be an exclusively religious position (see the discussion at http://bit.ly/1qCOw0h).
  5. Supreme Court of the United States, Roe v. Wade (1973). Available online at http://bit.ly/11uRqOO
  6. Wikipedia, “Pregnancy: Duration,” available online at http://bit.ly/1wbAKFs
  7. Some additionally characterize the developing entity as a part or extension of the mother’s body. But it is no more a part or extension than, say, a tapeworm would be; biologically it is a distinct organism, parasitically growing within and dependent upon its host. [todo: refs]
  8. Information on birth drawn from U.S. National Library of Medicine, “Changes in the Newborn at Birth,” available online at http://1.usa.gov/ZwjZcY.
  9. University of Michigan Medical School, “Fetal Changes and Circulation at Birth,” available online at http://bit.ly/1F4KiIv. Also see Wikipedia, “Fetus: Circulatory system,” available online at http://bit.ly/1qCRJwS.
  10. todo: work out ref from Dr. Tara Smith, Moral Rights and Political Freedoms (Rowman & Littlefield, 1995).
  11. Judy Illes, Neuroethics: Defining the Issues in Theory, Practice, and Policy (Oxford University Press 2006). p.142 Retrieved 6/8/2009
  12. Dr. Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (Plume 1993). pp.354–355
  13. todo: work out ref from… - National Institutes for Health, “Speech and Language Developmental Milestones” - Mayo Foundation for Medical Education and Research, “Child development chart: Preschool milestones” - Zero to Three, “Brain Development: Frequently Asked Questions
  14. Ayn Rand, “Man’s Rights,” in Capitalism: The Unknown Ideal (Signet 1986). Essay also available online at http://bit.ly/1yHpF3n.
  15. Even (legitimate) obligations we associate with accident have a critical dependence on choice. For example, the obligation to pay for damage in a car accident flows from being responsible for the harm; we identify it as essentially a product of chosen actions like recklessness, as opposed to unchosen actions which would render the actor blameless (like those resulting from, say, a brain aneurysm).
  16. Only the analysis around this boat-ride parallel is mine — I think I first heard the analogy used byDiana Hsieh in a conversation many years ago.
  17. This also clarifies the source of the essential mission of parenthood: raising a child to full independence — i.e., to a person capable of living by our species’ distinctive means of survival (conceptual thought, rationality), pursuing and producing the values needed to survive and flourish as a human. Additionally, it highlights the basis of and basic standard for any government intervention in the rearing of children: a parent sabotaging the ability of a child to ever achieve such independence.
  18. In a proper, rights-respecting society, one delegates the use of force, placing it under the objective processes and instruments of the government. Even in the case of an emergency where there is no time for the government to deal with an immediate threat (like fending off a mugger with deadly force, or an emergency late-term abortion), one must justify the use of force against a person after the fact and face criminal punishment if it was not warranted. See Ayn Rand, “The Nature of Government” in The Virtue of Selfishness (Signet 1964). Essay also available online at http://bit.ly/1yHpF3n
  19. There is a long list of medical, legal, personal and social problems that result from defining personhood as appearing at the point of conception. For a detailed discussion, see “Amendment 48 Is Anti-Life: Why It Matters That a Fertilized Egg Is Not a Person” by Ari Armstrong and Diana Hsieh, available online at http://bit.ly/1yHsSQm
  20. Standard contracts exist for this, such as marriage contracts. People also routinely negotiate arrangements for child-support and custody after the fact.
  21. I owe the basic idea of “essentially formed” here to Dr. Leonard Peikoff. In a lecture coupled with the publication of his book Objectivism: The Philosophy of Ayn Rand, he was asked about when a potential human being becomes an actual human being and briefly discussed a point like this before birth. [Leonard Peikoff, 1991–1992, “Advanced Seminars on Objectivism: The Philosophy of Ayn Rand,” Lecture 14 Disk 1, 34:00. See a transcript at http://bit.ly/ZwkqEm.]
  22. Wikipedia, “Prenatal Development,” available online at http://bit.ly/1sufPg9.
  23. todo: work out ref from… - Stephen Jay Gould, Ontogeny and Phylogeny (Cambridge, Mass: Belknap Press). p.206. - Wikipedia, “Mammalian embryogenesis” - Nova, “Morphing Embryos” - Wikipedia, “Prenatal development: Embryonic period
  24. U.S. National Library of Medicine, “Fetal Development,” available online at http://1.usa.gov/1kiYRdY
  25. Wikipedia, “Prenatal Development: Week 31,” available online at http://bit.ly/1wMTATm
  26. Relying on the division of intellectual labor to identify, with ever greater precision as science progresses, when a fetus becomes a person by the standard of an “essentially formed human being” does not flirt with the mistake we saw earlier regarding viability. That position defined the standard itself as something inessential that shifts with progress in technology, to an absurd expression of that inessential.
  27. Supreme Court of the United States, Roe v. Wade (1973). Available online at http://bit.ly/11uRqOO
  28. Note that by not calling for the prohibition of abortion after viability except when needed to protect the woman’s life, the Court indicates that it does not in fact regard this as marking the appearance of absolute rights which must be recognized and defended.