Unlike Judith Thomson, Mary Ann Warren believes that the central question in the abortion debate is the status of the fetus: is it a person in the moral sense or is it not? As Warren sees it, Thomson's approach -- granting the fetus's status as a person -- can only produce the most limited right to an abortion. However, Warren believes that abortion on demand is justified, and she argues that the fetus is not a full human person.
She point out that there is a possibility of a certain confusion. Some people phrase the question in an unfortunate way and ask if the fetus is human. This confuses a biological question with a moral question. Biologically, the fetus is human. But that doesn't make it a full-fledged member of the moral community. So Warren asks: what are the characteristics that give a being membership in the moral community -- that make the being a person in the moral sense? She offers an interesting way of approaching this question.
Before we turn to the details, let's step back and look at the general picture. Warren is claiming two things. One is that being human in the biological sense is not necessary for being a human person. This was the point I urged in class by the examples of the ultra-sophisticated chimpanzee. Or consider science fiction. Mr. Spock may not be human in the biological sense, but he is a person in the moral sense: he is entitled to the same rights and considerations as persons of the sort we are familiar with. So being a person does not imply being a member of the species homo sapiens; biological humanity is not necessary for moral personhood.
Other considerations suggest that it is also not sufficient. Think about humans who are born with no cerebral cortex -- who are utterly incapable of anything we call thought. It is surely open to question whether they have rights of the sort we associate with persons.
In any case, Warren doesn't leave things at this level. She offers an interesting approach to gaining clarity about the concept of a person. She asks us to suppose that we encountered a totally alien creature -- perhaps a creature from somewhere else in the universe. We would have to ask ourselves: how should we treat this creature? What moral status should we give it? Is it entitled to the same sort of moral consideration that we are entitled to? To answer, we need to ask what it is about other people that seems most important morally. And she gives a list of relevant factors, including:
Do we need everything on the list? No. We might allow a creature to count as a person if it satisfied, for example, only (1), (2) and (3). But what of the case of the fetus?
In the early stages of pregnancy, the fetus would not possess a single one of the characteristics on this list. And even late in the pregnancy, the fetus would only fit criterion (1). But chickens and snakes fit that criterion, and very few of us think they are full-fledged moral individuals.
Arguments that the fetus is a person often proceed by pointing out the ways in which fetuses resemble fully-developed humans. But Warren would insist: not just any resemblance will do. For example, the fact that a fetus comes to look more and more like a paradigmatic person as pregnancy proceeds is irrelevant. The relevant considerations are, more or less, the ones noted on the list above. And from that point of view, we must conclude that, in her words, "in the relevant respects, a fetus, even a fully developed one, is considerably less person-like than the average fish."
Warren draws a conclusion from this. "[I]f the right to life of the fetus is to be based upon its resemblance to a person, then it cannot be said to have any more right to life than, let us say, , a newborn guppy... and... a right of that magnitude could never override a woman's right to obtain an abortion at any stage of her pregnancy."
This argument may seem to have considerable force. But we need to pause.
First, there is an interesting and important difference between us and the guppies. Guppies never do develop most of the characteristics on the list. Almost all of us do. And the point is this: for all Warren's list shows, we could some being as a person so long as it has or will come to have the features listed on Warren's list. In other words, for all Warren as shown so far, any being who will have (other things being equal) consciousness, the power to communicate, purpose, rationality, etc. already is entitled to full moral consideration. Warren is right: the things on her list are relevant to personhood. But in just what way they are relevant is quite possibly more complicated than she suggests.
Warren would probably object. She would say: a being who will be able to talk and feel and think ... is a potential person. But if we simply confuse potential people with actual people we are thick in the middle of confusion. Is it really plausible that a week-old fetus is a person just because it will some day be a walking, talking, thinking thing? I'll admit: I don't think so myself. Someone might try to rebut this worry. Consider a normal adult, deeply asleep. While unconscious, you might argue, she lacks all of the characteristics on the list . But she is most assuredly a person. Why? We might say that she has the potential for these things. Does this show that potential is good enough for personhood?
Probably not. Consider a different example. I don't just have the potential to speak English (though I am not speaking as I write.) I have the full-blown capacity, even though I'm not exercising the capacity at this moment. In fact, even when I'm asleep, I have the capacity. It's just that it is inactive when I'm not awake. This helps explain why I don't lose my rights when I'm asleep. And it also makes clear that potential is weaker than capacity.
Now fetuses don't have the capacity for, e.g., complex communication. But they have the potential for this capacity. Is that enough to give them full rights? Warren concedes (or pretends to, at least) that a potential person may have a right to life of some measure. What she goes on to ask is just how strong this right to life actually is. In a pattern that is now familiar, she uses a thought experiment. She asks you to suppose that you are captured by alien creatures who have the ability to clone cells from your body and make genetically identical copies of you. Their intention is to dismember you and use the parts to make copies. You are supposed to know that that procedure will be painless, effective, and that your clones will be well-treated. You, of course, will no longer exist.
Are you obliged to submit to the procedure? The answer is obviously no. Even though each of your body's cells is a potential person, and even though there are hundreds of thousands of potential people at stake here, their collective rights to life don't outweigh the right to life that you, as an actual person, possess.
Of course there is an obvious problem with this example. You have been captured. All of this is happening against your will. This means that, while the case may be like the case of a pregnancy due to rape, it is not at all analogous to a normal pregnancy. Warren doesn't address this head-on, but she does modify the case in ways that seem relevant. Suppose the aliens were merely going to take a few cells of your skin and clone them. Suppose that the procedure involved only minimal inconvenience. She insists -- and surely she is right -- that you still aren't obliged to cooperate. In fact, we can go further. You aren't obliged to cooperate even if the aliens are merely asking you to consent rather than forcing you to comply. And according to Warren, this shows that the right to life of these potential people amounts virtually to nothing at all. She infers, consequently, that so long as the fetus is a mere potential person, its right to life -- assuming it has one at all -- could never outweigh the mother's right to an abortion.
Now the idea that our cells might be cloned is not so far-fetched. We already know how to clone certain organisms. It is plausibly just a matter of time until we could do the same for human cells. Still, one wonders just what this shows; there are potentials and potentials.
As things now stand, there probably is actually existing technology that could clone a cell from my body -- remember Dolly the Sheep. Are all my cells now potential persons? In one sense that would be an odd thing to say. My cells are parts of an actual person. That is the primary fact about them; the fact that they could be made into other persons seems beside the point. Indeed, the actual person who is made up of a batch of cells had better take precedence over the cells themselves, or else we run a serious risk of vicious regress: my cells are valuable because they are each potential persons, each of which potential persons would be made up of more potential persons...
Perhaps, in one way, this is is Warren's point. A part of me may, in some dim sense, be a potential person. But my actual personhood is (or had better be) primary if our moral valuing of personhood is to get properly anchored. On the other hand, once I snip off a hangnail, it is no longer a part of the body that makes up me. Am I obliged to rush it down to the cloning machine (assuming one gets invented tomorrow)?
The answer still seems to be no. Why? Many possible reasons. One is essentially Warren's: potential personhood counts for almost nothing. Another reason is that if we started creating persons willy-nilly, we would create a catastrophe for all persons in the process. Making babies the old-fashioned way puts definite limits on how many we can make, and even though those limits may not be enough to prevent a population crisis, one can see that the unchecked creation of persons would be almost as morally unacceptable as their wanton destruction.
A little more significantly, it also seems fair to say that a fertilized ovum is a potential person in a stronger sense than a cell that might be cloned. Here are two reasons. First, the potential is seriously on its way to being fully realized. It is not mere potential; it is, so to speak, activated potential. Even if some mad scientist has already invented a human cloning device, my hangnail cells are potential people in a much weaker sense than a fertilized ovum (let alone a fetus) is. Further, although a cell might be cloned, and might thereby become an organism, this is not the normal, "natural" fate of, say a skin cell. A skin cell is not the sort of thing that has personhood as its "natural" end; a fertilized ovum is; becoming a full-blown organism is the natural fate of a fertilized ovum.
Appeal to what is natural is very tricky business, as we can see by thinking about the case of homosexuality. In some sense, we might concede, homosexual intercourse is not "natural." But the moral implications of this are not clear. Still, we can make a limited point: because of the differences we have noted between a skin cell and a fertilized ovum, it is at least not clear that Warren's analogy is a good one.
Potential, then, is a complicated notion -- more complicated than Warren seems to allow. It's not really so clear that Warren has made her case. One trouble with potential is that the closer it comes to being realized, the more weight we incline to give it. There is -- for most of us -- a world of difference betwen the shadowy potential of a hangnail and the serious, highly-developed potential of the newborn, whatever Warren may try to tell us.
Warren's essay concludes with a postscript on infanticide, and this makes the problem with her analysis even clearer. She notes that many people have an objection to her argument: since a new-born child is not significantly more person-like than a fetus, the same argument that justifies abortion would appear to justify infanticide. Warren recognizes, implicitly at least, that if her argument really has this implication then it has serious problems.
She responds as follows: infanticide is indeed not murder, since murder involves killing a person. But that doesn't mean that infanticide is permissible. First, even if the parents of a baby don't want it, it is very likely that someone will want the child, and destroying it would deprive those people of much pleasure. Second, as a society, we prefer to spend money on orphanages than to see infants destroyed. These two facts, Warren claims, make it wrong in the normal case to kill an infant.
But now Warren notes that a new problem arises: if this argument shows that infanticide is wrong, it might seem to show that abortion is wrong as well, since there are many people who would prefer that the woman not abort, and are even willing to care for the infant if necessary.
Warren insists that there is a difference. "So long as the fetus is unborn, its preservation, contrary to the wishes of the pregnant woman, violates her right to freedom, happiness and self-determination... The minute the infant is born, however, its preservation no longer violates any of its mother's rights, even if she wants it destroyed, because she is free to put it up for adoption."
This seems to me a dubious argument, whatever one may think of its conclusion. Let me develop a bit further the analogy I offered in class. Suppose I am a gifted artist. I paint a beautiful painting that many people would be delighted to own. The painting becomes well-known and world-renowned. But I still own it, and I decide I want to destroy it. Now it certainly could be argued that I am being mean-spirited if I burn it rather than let anyone else have it. Surely, however, I have every right to do just that. It is, after all, my painting. I have the same right to do with it as I please that I have to do as I want with any other piece of my own property. Being mean-spirited is a moral failing, we may grant. But most of us, I suspect, don't think we should force people to be generous with particular pieces of their own property.
But now come to the case of the woman who has given birth. The child is hers if it's anyone's, and since it isn't a person, it would seem to have the status of property. But if that is so, how does it differ from the painting? The mother might be selfish or mean-spirited if she chooses to destroy the baby rather than put it up for adoption. But we don't normally think the law has any business stopping people from being selfish or mean-spirited.
What is the point? The point is that Warren hasn't captured our sense that it would be deeply wrong to kill the newborn baby -- wrong enough that it is appropriate to imprison people who do this sort of thing. In fact, she hasn't shown that the mother has no right to kill the baby. After all, the artist has the right to destroy his own paintings, even if others fervently wish he wouldn't -- even if it is nothing but selfish for him to do so.
I think the typical reaction to Warren's argument is that she gets the cart before the horse. Warren makes the wrongness of infanticide, such as it is on her account, depend on the fact that people would prefer it not to happen. She says it is wrong to kill infants because most people prefer that infants be provided for. But most people have this preference because they think infanticide is wrong.
© copyright Allen Stairs, 1997
Web surfer's caveat: These are course notes, intended to augment classroom discussion of the issues and readings. They should be read as such and are not intended for general distribution or publication.