After-Birth Abortion, Giubilini and Minerva, Justification and Critique

The topic at hand is after-birth abortion – the termination of a new or recently born human life.  I will first reconstruct the argument in favor of after-birth abortion as put forth by Alberto Giubilini and Francesca Minerva (G&M) in their 2012 paper.1 I will then argue that G&M do not make a convincing case for after-birth abortion. My primary issue will be with their notion of personhood. Secondarily I suggest that there is an important differentiating factor between fetuses and infants that G&M overlook.

G&M’s thesis is that after-birth abortion should be permissible “in all cases where abortion is, including cases where the newborn is not disabled” (G&M, p1). They support this thesis with two claims which are to be taken together: 1) that fetuses and newborns are morally equivalent and 2) that the potential for personhood is irrelevant.

In support of claim 1, G&M argue that neither fetuses or newborns are persons “in the sense of ‘subject of a moral right to life’” (G&M, p2). This is because they define a person as someone who “is capable of attributing to [their] own existence some basic value such that being deprived of this existence represents a loss to [them]” (G&M, p2). G&M also mention being able to formulate aims such that frustration of those aims amounts to a harm — though it is not immediately clear whether this is an expansion of their definition of personhood or a clarification that should be taken as primary in place of the previous definition, which is markedly different (G&M, p2). G&M here implicitly argue that pursuit of pleasure and avoidance of pain do not amount to aims, because they acknowledge that newborns have a pain/pleasure response but that the capability to make aims is something to be considered separately.

In support of claim 2, G&M argue that the termination of a being with potential for personhood cannot be harmed because they as yet do not fit the criteria for personhood put forth in claim 1. In the case that a potential person is prevented from becoming an actual person, “there is neither an actual nor a future person who can be harmed, which means there is no harm at all” (G&M, p3). They further claim that the interests of actual people override the interests of “merely potential” people. This claim is utilized in an argument against the infant’s right to develop — until the infant reaches such a stage as it can be considered a person of full moral status, the right of the parent(s) to pursue their own well-being triumphs absolutely.

The first criticism that comes to mind is that G&M have an overly narrow conception of personhood; there are three concerns that arise out of this. First, there are many severely depressed adults who are incapable of attributing basic value to their lives or forming meaningful aims. In fact, the anhedonic aspect of major depression, at its nadir, shrinks their capacities below the simple pain/pleasure response of which G&M consider a newborn to be capable. These majorly depressed people are not even “at least in the condition to value the different situation [they] would have found herself in if [they] had not been harmed” (G&M, p2). Yet intuitively we do not want personhood to be so fragile and revocable. Second, the mentally handicapped and severely disabled present a few different concerns. Third, if G&M stand by their initial definition of self-awareness and self-valuing to be the standard for personhood, such that being deprived of this existence represents a loss to the individual, then it requires a high level of sophisticated cognition which people may not be capable of until well into the childhood years.

G&M can answer the first concern by saying that this pathology does not represent the person’s normal state; assuming they have not been depressed from the moment they developed personhood, they are obviously being harmed by the development of mental illness. Because they are obviously being harmed, they must obviously be persons in the morally relevant sense. However, no parallel exists with the case of potential persons — so the potential persons remain non-persons. G&M might also say that being numerically identical with someone who had personhood and is still alive (and not in a persistent vegetative state, etc) is enough to confer full or partial personhood; this would confer personhood on those who become mentally disabled late in life. However, the basis for these answers are not to be found in their original argument.

To address the next critique, G&M might assert that except in very exceptionally marginal cases of profound mental retardation, most mentally handicapped individuals seem to be able to form rudimentary aims which would be frustrated by interference; people with Down’s syndrome can express desire and function with structure and care. So perhaps they would have a correspondingly rudimentary personhood that confers, at least, some right to life. Even with this charitable interpretation of aims, however, it still seems that handicapped individuals do not satisfy the deep self awareness requirement that preceded the aims requirement.

Finally, regarding the question of development of self awareness in children and the disabled, G&M may simply punt the issue down to neuroscientists, as they did in their conclusion.  However, this seems to be a glaring hole in the paper, if not a deliberate omission. While I, like G&M, do not know how settled the science of developmental neuroscience is, would G&M be willing to double down on their definition of personhood if it should come to be that the sense of self and valuing of one’s own existence isn’t well-developed until late childhood? It seems almost irresponsible to include no information pertinent such a cornerstone of their argument. Camosy raises this objection, or a nearly identical one, in his 2012 paper.2

We may also assert to G&M that it can still be immoral to kill non-persons without good reason. G&M seem to equate non-personhood with non-being; rather, they outright say that killing a fetus or an infant is merely the prevention of a person from being made. But even non-person animals seem to have a right to not be inflicted with unwarranted pain, or the right not to be killed when other options are available, even if those options are less convenient. We do not find it acceptable to simply beat or shoot benign stray dogs, for example. In the case of the fetus, one may appeal to the immorality of a woman being forced to sustain another person with her body. But in the case of infanticide, there is no forced sustenance. Indeed, in the case of a human infant, they are not only a living non-person with a right to not be unduly harmed, they are living non-persons with the unique potential to become full human persons. This does not confer less value to their life as non-persons, but more. After birth, we must contend with the possibility that living non-persons do have a right to live that supersedes our authority to kill them, or at least imposes a duty on us to seek other means of relieving the burden of raising a newborn.  To be fair, G&M do tangentially address this concern in the section of their paper titled “Adoption as an alternative to after-birth abortion?” But they have nothing to say with regard to the infant’s right to not have undue harm inflicted upon them; this may be because they maintain the notion of an absolute equivalence between infants and fetuses, which ignores the critical difference of the infant living outside the mother’s body.

G&M raise what is for contemporary western society a controversial and radical thesis. However, they failed to supply the absolutely ironclad arguments one expects from such a radical thesis. Their narrow view of personhood leaves many possibly without a right to life, and their absolute equivocation of fetus with infant is dubious.

References

  1. Giubilini A, Minerva F. After-birth abortion: why should the baby live? J Med Ethics 2013;39:261–3.
  2. Camosy C. Concern for our vulnerable prenatal and neonatal children: a brief reply to Giubilini and Minerva. : J Med Ethics 2013;39:296–298.

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