Abortion & Personhood*
March 12, 2002
prepared by Dr. Barbara Barrowman
There is evidence that abortion has been practiced
throughout human history (recipe for ‘abortion potion’ in Chinese text ~2600
Cent. BC) forbade abortions
Plato and Aristotle (4th
Cent. BC) endorsed it as a means of population control
In Western world, the debate on abortion has been
conducted predominantly in a religious context
of Abortion Law in Canada
1869 – Criminal law passed prohibiting abortion, max. penalty life imprisonment
1892 – First Criminal Code – criminalized not
only abortion, but also sale, distribution and advertisement of contraception
1969 – Decriminalization of contraception
– Introduction of the “therapeutic
Code s. 251 (1969-1988)
“251. (1) Every one who, with intent to procure the
miscarriage of a female person, … uses any means for
the purpose of carrying out his intention is guilty of an indictable offence
and is liable to imprisonment for life.” (p. 320)
It was also illegal for a woman to have an abortion,
although the penalty was less (up to 2 years)
s.251 did allow for an
exception for ‘therapeutic abortions’
– Roughly, this means
‘medically required abortions’
Abortions under s. 251
remained a crime (for abortion provider and pregnant woman) unless:
– Carried out in an accredited or
– Approved in advance by majority of 3
member “therapeutic abortion committee”
– The continuation of pregnancy was
likely to endanger life or health of pregnant woman
– See pp. 320-1 for full text of s.
Morgentaler (S.C.C. 1988)
§ 5-2 decision, Court
struck down s. 251 as being contrary to the Charter
Every one has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance
with principles of fundamental justice. (p. 322)
Variety of reasons given in majority judgments
some were “technical”
some were “substantive”
for dissent, see pp.
s. 251 “clearly interferes
with a woman’s bodily integrity in both a physical and emotional sense.”
S. 251 “therefore, is
required by the Charter to comport with the principles of fundamental justice.”
Majority held it did not. The structure of the law created various
Delays (psychological stress, increased danger)
Lack of TAC in some areas
Vagueness of term “health” (includes psychological
health?) (see pp. 322-6)
Could not be saved under section 1 of the Charter
Primarily contained in Justice Wilson’s ruling (see
Not all in the majority based their decision on
‘substantive’ reasons. All did acknowledge technical problems.
Wilson: what s.251 does is “asset that the woman’s
capacity to reproduce is not to be subject to her own control…. she is truly
being treated as [only] a means [to an end] … Can there be anything that
comports less with human dignity and self-respect?” (p. 331)
W. recognized a state interest in protecting the fetus
but took a developmental view of this (i.e., based on stage)
Morgentaler did not rule out a
new law on abortion, nor take a clear stance on the moral status of the fetus.
Bill C-43 (1990) would have recriminalized
abortion except where woman’s doctor took view that her health (including
psychological health) was likely to be threatened
Passed by House of Commons, defeated by Senate 44-43
Since then, no further attempt at federal legislation
There are local policies in place restricting access
to abortion (e.g., Health Care Corp. of St. John’s)
Post-Morgentaler – Paternal Rights?
1989 – 3 cases (Manitoba, Ontario, Quebec) in which
injunctions to prevent abortions were sought by men alleging paternity
Daigle v. Tremblay (S.C.C.)
injunction struck down -
potential father did not have right to prevent abortion
– fetus not a “human
being” under Quebec Charter,
fetus must be born alive
to enjoy legal rights
Post-Morgentaler – “Maternal-Fetal Conflicts”
Applications for judicial interference with pregnant
women in the alleged interest of the fetus
A number of these cases, most
involving maternal substance abuse/addiction, made their way through the courts
in the 1980’s and 90’s, with differing results
This issue culminated in D.F.G. case (S.C.C.
Winnipeg Child and Family Services v. D.F.G.
Ms. G. 5 months pregnant with 4th child,
addicted to glue sniffing, 2 previous children disabled and wards of state
CFS made application for order to detain and treat
until birth of child
Order initially granted, reversed on appeal
In meantime Ms. G. successfully stopped sniffing, gave
birth to apparently normal child
S.C.C. agreed to hear appeal anyway, given importance
of general issue
Child and Family Services v. D.F.G. (S.C.C. 1997)
held that courts do not have power to detain pregnant woman for purpose
of preventing harm to her unborn child
– fetus not a “legal person” in Canadian
– concern re “where to draw the line” if such
orders could be granted
to legislatures if they want to change this
per 1,000 Canadian Women (1998)
included in text version]
per 100 Live Births (1998)
included in text version]
An Argument Against Abortion
P1: It is (generally) wrong to kill a human
P2: Fetuses are
P3: Abortion involves killing a fetus.
C: Abortion is (generally) wrong.
– Note: We will be using the word ‘fetus’ very
loosely (i.e., so that it covers all stages of development)
What’s Wrong with the Argument?
– i.e., it uses a word in two distinct ways, without
P1 = It is
(generally) wrong to kill a human being
– P1 is clearly true only if we have in mind a normative
sense of the word 'human‘
– i.e., a sense meaning something like
‘full member of the moral community’.
– The term person is often used to describe this
P2 = Fetuses are human beings
– P2 is clearly true only if we have in mind a
biological (i.e., descriptive) sense of the word ‘human’
– i.e., a sense meaning something like ‘genetically
What’s Wrong with the Argument?
In order to make P1 obviously true we have to use the word
‘human’ in such a way that it makes P2 questionable.
In order to make P2 clearly true, we have to use the
word ‘human’ in such a way that it makes P1 questionable.
– See Sumner for more detail (especially, p. 354)
What we need is a clearer understanding of the
normative sense of the word ‘human’
We need an account of what a person is
‘normal’ adult human beings
Fetuses, infants, children
Robots, artificial intelligence, computers
Mentally disabled, severely physically disabled
Consider the Idea of Personhood? (pp. 286-7)
Significance for abortion debate
Is a human being a person at conception or only at a
New technology means new possible persons
(respirators, kidney machines, pacemakers, artificial limbs, etc.)
New reproductive technology
(DNA manipulation, cloning, etc.)
intelligence and robotics
Consider the Idea of Personhood? (Continued)
Organs from ‘living’ donors (i.e., humans who are not
persons) have a much better chance of not being rejected than from organs from
Accounts of death as the end of personhood
Brain death vs. ‘complete’ death
Can human beings lose their personhood? (i.e., those in a coma, severely brain-damaged individuals,
Alzheimer sufferers, etc.)
– More next week
Consider the Idea of Personhood? (Continued)
and Political Significance
Personhood has a long history, although not under this
i.e., only citizens could vote in ancient Rome
Certain kinds of rights belong only to persons
Women were not recognized as legal persons in Canada
“The Persons Case”
Children’s Rights? Animal rights?
– Are children
persons? Are animals persons?
Possible Accounts of
1. Biological Account
2. Sentience Account
4. Relational Account
5. Soul Account
Person = human being (homo
This makes personhood observable
– Science can tell us
what is a human being and what is not i.e. a human fetus
is a member of the species homo sapiens
Although we must first settle what we mean by ‘human
being’ – genetically human, physically resembling a ‘normal’ adult human,
etc. (See Sumner, pp. 351-353)
with the Biological Account
Why should membership in a species be morally
Peter Singer compares “speciesism”
with “racism” & “sexism”.
It involves arbitrarily drawing the lines of
personhood to exclude a group that deserves moral consideration.
Would killing Martians be OK just because they are not
– What makes us
Sentience Account (or Bare Consciousness)
Person = sentient being
Beings that are capable of feeling (i.e., experiencing
pleasure and/or pain) are persons
Peter Singer again:
“The minimal characteristic which is needed to give
the embryo a claim to consideration is sentience, or the capacity to feel
pleasure or pain. Until the embryo
reaches that point, there is nothing we can do ... which causes harm to it.”
with the Sentience Account
can we tell that a being is sentient?
– Will observable behaviour, brain
scans, etc. do the job?
the theory too loose about what it counts as a person?
– If we consider animals as capable of
feeling pleasure and/or pain then animals are persons too
Medical Association, 1991
“A human fetus becomes a
person ... when the foetal nervous system has developed to the point where it
has the basic capacity for sapient cognitive awareness irrespective of level of
sophistication.” (CMA, Committee on Ethics, p. 290)
Cognitive awareness? Is this different from bare consciousness?
Fetal personhood (fetus at 20 weeks = person)
Frances Rosenberg: argues against the CMA claiming
that a fetus is not a person until born (pp. 300-1)
Until the fetus is born,
there is only one person.” (300)
Similar view to relational account
Person = self-aware being
Persons must be aware of themselves as continuing
subjects of experience
conscience is a mental state
of appreciating what is right or wrong, i.e. the little ‘devil’ and the little
‘angel’ on your shoulders
Not all animals would qualify on this account (but
some might, e.g., chimpanzees)
with the Self-consciousness Account
How do we determine if something has
Daniel Dennett: language (i.e. narrative) is required
to determine personhood
Dennett excludes animals, fetuses,
infants, and small children as persons
What about those who have amnesia – are they different
If someone loses awareness of herself as a continuing
subject has she lost her personhood?
4. Relational Account
Person = something able to engage in human
Persons are social creatures (i.e. members of a
Account is associated with feminist philosophy
Susan Sherwin: “Fetuses are
not persons because they have not developed sufficiently social relationships
to be persons in any morally significant sense... Newborns, although just
beginning their development into persons, are immediately subject to social
relationships.” (p. 341)
with the Relational Account
about those who are autistic or those who suffer from schizophrenia?
– They are often unable to form
certain sorts of social relationships.
rudimentary social relationship between mother and fetus?
5. Soul Account
= being with a soul
a very important view
to many religious traditions
Problems with the Soul
How can we test what has a soul and what does not?
Do tables and chairs have souls? Do plants?
Do animals? Do humans?
Would clones have souls?
Do all living things have souls? If so does this mean that a tree is a person
Does this approach rely unreasonably on faith?
violinist has a fatal kidney ailment
You alone have the right blood type, etc. to help
You wake up to
discover the violinist has been ‘attached’ to you without your consent. He is
now ‘using’ your kidneys.
He will die due
to kidney failure if he is disconnected now.
He can be safely
unhooked in several months
You will suffer no long term effects but will
obviously be greatly inconvenienced over the next few months.
Are you ethically obliged not to disconnect yourself
from the violinist?
Personhood as Important as People Think?
Some things may matter morally without being persons (e.g.,
We’ll consider two arguments (one pro-choice, one
anti-abortion) that don’t rest on claims about personhood
Judith Jarvis Thomson “A Defense of Abortion”
Don Marquis “Why Abortion is Immoral”
Both are available on reserve
Suppose the fetus is a
A possible argument:
P1: A person has a right to life.
P2: A person has a right to control what
happens to her body.
P3: In a case in which a woman wants an
abortion, one of the above rights will be violated no matter what, either the
woman’s right to control her body or the fetus’ right
P4: If someone's
right will be violated either way, morality requires that we should violate
whichever is the least important right.
P5: The right to life always outweighs the
right to control one's body.
C: Abortion is wrong.
Thomson: The Violinist
From a famous article by Judith Jarvis Thomson
– A world-famous violinist has been attached to you
without your consent.
– He will die due to kidney failure if he is
– He can be safely unhooked in nine months.
of the Violinist Example
Claim: It would be nice of you to
remain hooked up, but, morally speaking, you don't have
to stay hooked up.
– So what?
Point: Another person’s right to life
doesn't always trump the right to control your body.
– i.e., P5 is wrong
If she’s right,
then even if the fetus is a person, it doesn’t follow
that abortion is necessarily wrong.
The Remaining Question
Even if you
accept Thomson’s claims about the Violinist Example, this doesn’t lead to a
clear position on abortion.
Clearest application is to cases in which the pregnant
woman’s life is threatened
Question: When does the fetus’ right to life 'trump' the right to control your
– Thomson’s Answer:
What makes a difference is whether the fetus has been ‘invited in’
– Clearly not in case of rape
What about sex without contraception?
Why Abortion is Immoral
is it wrong to kill ‘ordinary’ people?
– "What primarily makes killing wrong is neither
its effect on the murderer nor its effect on the victim's friends and
relatives, but its effect on the victim. The loss of one's life is one of the
greatest losses one can suffer. The loss of one's life deprives one of all the
experiences, activities, projects and enjoyments that would have constituted
Killing us is
wrong because it deprives us of a particular kind of future, 'a future-like-ours'.
Abortion is wrong
in most cases because most fetuses have a
– Notice that this is not an argument based on the
concept of being a person. It seems to
rely on the potential to be a person.
Exception: "Presumably abortion could be justified in some
circumstances, only if the loss consequent on failing to abort would be at
least as great.”
E.g., if the pregnancy threatens the woman’s life
Questions for Marquis
would this argument tell us about the moral status of contraception?
his account of what’s wrong with killing correct?
– An alternative suggestion: killing an ordinary human being is wrong
because it deprives a person of a future-like-ours
may be convinced by neither Thomson’s argument nor Marquis’
do make a case that it is a mistake to think that all, or even most, ethical
questions about abortion would be answered by resolving the issue of whether
fetuses are persons.