Abortion & Personhood*

Philosophy 2803

Lecture VII

March 12, 2002

*Some slides prepared by Dr. Barbara Barrowman



§     There is evidence that abortion has been practiced throughout human history (recipe for ‘abortion potion’ in Chinese text ~2600 BC)


§     Hippocrates (5th 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


History 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 abortion” exception


Criminal 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’


Therapeutic Abortions under s. 251


§    Abortion remained a crime (for abortion provider and pregnant woman) unless:

  Carried out in an accredited or approved hospital

  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. 251


Morgentaler (S.C.C. 1988)


§     5-2 decision, Court struck down s. 251 as being contrary to the Charter


    s. 7  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. 328-330




§     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.” (p. 320)


§     Majority held it did not.  The structure of the law created various problems

    Unequal access

    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 pp. 330-333)


§     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. 1997)


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


Winnipeg Child and Family Services v. D.F.G. (S.C.C. 1997)


§    7-2 decision

§    Majority 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 law

  concern re “where to draw the line” if such orders could be granted

§    Up to legislatures if they want to change this


Abortions per 1,000 Canadian Women (1998)


[Chart not included in text version]


Abortions per 100 Live Births (1998)


[Chart not included in text version]


An Argument Against Abortion


P1: It is (generally) wrong to kill a human being


P2: Fetuses are human beings


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?


§     The argument equivocates

    i.e., it uses a word in two distinct ways, without acknowledging this


§     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 idea.


§     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 human’



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


Candidates for Personhood


§     Uncontroversial:

   normal’ adult human beings


§     More Controversial:

   Fetuses, infants, children


   Robots, artificial intelligence, computers

   Mentally disabled, severely physically disabled

   Alzheimer’s patients

   Aliens, Martians


Why Consider the Idea of Personhood? (pp. 286-7)


1. Abortion

   Significance for abortion debate

   Is a human being a person at conception or only at a later stage?


2. Technology

   New technology means new possible persons

   Medical technology (respirators, kidney machines, pacemakers, artificial limbs, etc.)

   New reproductive technology (DNA manipulation, cloning, etc.)

   Artificial intelligence and robotics


Why Consider the Idea of Personhood? (Continued)


3. Organ Transplantation

   Organs from ‘living’ donors (i.e., humans who are not persons) have a much better chance of not being rejected than from organs from cadavers

§    Accounts of death as the end of personhood

§    Brain death vs. ‘complete’ death          


4. Euthanasia

   Can human beings lose their personhood? (i.e., those in a coma, severely brain-damaged individuals, Alzheimer sufferers, etc.)

   More next week


Why Consider the Idea of Personhood? (Continued)


5. Legal and Political Significance


§     Personhood has a long history, although not under this name

    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 until 1929

    “The Persons Case”


§     Children’s Rights?  Animal rights?

    Are children persons? Are animals persons?


Possible Accounts of Personhood

1. Biological Account

2. Sentience Account

3. Self-consciousness Account

4. Relational Account

5. Soul Account


1. Biological Account

§     Person = human being (homo sapiens)


§     Strong point:  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)


Problems with the Biological Account


§     Why should membership in a species be morally relevant?


    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 human?


    What makes us special?


2. The 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.”


Problems with the Sentience Account


§    How can we tell that a being is sentient?

  Will observable behaviour, brain scans, etc. do the job?


§    Is 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


Canadian 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

3. Self-consciousness Account


§     Person = self-aware being


§     Persons must be aware of themselves as continuing subjects of experience


    Note:  consciousness  conscience

    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)


Problems with the Self-consciousness Account


§     How do we determine if something has self-consciousness?


§     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 persons?


§     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 relationships

    Persons are social creatures (i.e. members of a community)


§     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)


Problems with the Relational Account


§    What about those who are autistic or those who suffer from schizophrenia?


  They are often unable to form certain sorts of social relationships.


§    No rudimentary social relationship between mother and fetus?


5. Soul Account


§    Person = being with a soul


§    Historically, a very important view


§    Central to many religious traditions


Problems with the Soul Account


§     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 too?


§     Does this approach rely unreasonably on faith?




§      A world-famous 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?


Is Personhood as Important as People Think?


§     Important Point:  Some things may matter morally without being persons (e.g., animals)


§     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 person…


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 to life.


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 Example


§     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 disconnected now.


   He can be safely unhooked in nine months.


The Point of the Violinist Example


§     Thomson's Claim: It would be nice of you to remain hooked up, but, morally speaking, you don't have to stay hooked up.


    So what?


§     Thomson's 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


§     The Big Question:  When does the fetus’ right to life 'trump' the right to control your body?


    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?

    Sex with contraception?



Marquis: Why Abortion is Immoral


§     Question:  Why 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 one's future.”


§     Killing us is wrong because it deprives us of a particular kind of future, 'a future-like-ours'.


Marquis’ Argument


§     Abortion is wrong in most cases because most fetuses have a future-like-ours.


    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.


§     A Possible 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


§    What would this argument tell us about the moral status of contraception?


§    Is 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


The Point


§    You may be convinced by neither Thomson’s argument nor Marquis’


§    They 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.