A Girardian Thought Experiment, Part II--When Do We Become Human?

In the previous post, we looked at two basic ideas.  First, there is a moral intuition that many of us have with regard to the beginning of life--a child who is born is fully human, zygote is not fully human, and the stages in between are something of a disputed grey area.  Second, drawing on Girard, there is the notion of defining humanity in terms of its participation in human society, the "Social Other" as James Alison puts it, that forms us and is formed by our presence and action.

Let's, then, try to put these ideas together.  By defining humanity in terms of the interaction with and participation in the "Social Other," the most critical event in the life of any human being is the moment of birth.  At the moment of birth, a human being is "installed" in human society in a way that is categorically different from what comes before, in at least two ways.  First, at the moment of birth a baby is able to interact with and be influenced by the entirety of human society.  Obviously a baby will not encounter every person in the world, but his or her interactions are in theory unlimited--there is no inherent reason why he or she cannot encounter any part of human society at any time.  Moreover, the interactions that the child does have are unmediated--the child is interacting directly with these other people, and can form relationships and bonds with them that do not require the presence of any other person.  We talk all the time about fathers and relatives and friends "meeting" a child at birth or soon after, and this makes sense in that birth represents the first opportunity for a person to form a relationship with the new baby in a direct way.

Prior to birth, a fetus's interactions are necessarily limited to and mediated through only one other human being--the mother.  That is not nothing, and it represents a claim to humanity that must be considered and taken seriously, but it is a participation in human sociality that is different both in scope and in kind from that of a born child.  This is consistent with our basic moral intuition--we may disagree on the proper moral duties with regard to pre-natal life, but we all agree that post-natal children should be morally and legally protected, because whatever we think about abortion, we believe there is something different about a born child from that of a pre-born one.  We should not be surprised that the "slippery slope to infanticide" arguments don't actually play out in the real world, because there are lots of solid grounds for pro-choice people to draw a bright line between birth and pre-birth.

Let's go to the other end of the timeline and look at a pre-implantation fertilized embryo.  To what extent can it be said to interact with and participate in human society?  I think the answer, if we are being honest, is "not at all."  This fertilized embryo is not interacting with any human being in any manner, directly or indirectly.  Sure, it has the potential to do so if it were to develop, but so would a sperm or egg cell if they were to come together and be fertilized.  If we really viewed potential as the basis for humanity, we would be forced to conclude, as Evans notes, that we should be mourning the deaths of countless millions of fertilized embryos that are never implanted and pass unknown out of the woman's body.  That seems bizarre to most people, and this framework gives us an explanation as to why--we mourn people who have actually impacted our shared human society, not the hypothetical potential of having such an impact.  I think it is reasonable to conclude that a pre-implantation fertilized embryo is not a human being, and is not subject to the legal and moral protections we give to human beings.

This view has consequences for questions like contraception and in-vitro fertilization, but let's put those aside for now and focus on the space in between those two poles.  If a baby becomes a person in an unqualified way at the moment of birth and is not a person prior to implantation, somewhere in between it takes on the qualities of personhood.  What point would that be?  I should say that I am comfortable with saying that there are gradations of personhood, but I understand many people are not and insist on a bright-line.  Where might that line be drawn?  I can think of three significant events in the development cycle that meaningfully change the way in which the developing embryo/fetus is interacting with human sociality.

The first one is implantation.  After implantation, the embryo/fetus is interacting with the body of the woman, drawing on nutrients and causing hormonal and other biological changes to her body.  So, there is an indirect sense in which the embryo is interacting with human society (i.e. the embryo is interacting with a particular human being in the form of the pregnant woman, and that woman is part of human society).  It would be fair to say, however, that this connection is attenuated.  Moreover, the problem with implantation as a benchmark is that a woman is not aware that she is pregnant until some meaningful period of time has passed after implantation.  Insofar as a woman were to do something that results in the end of the pregnancy during this period, she cannot be morally or legally culpable, as she would be "invincibly ignorant" that she was ending her pregnancy (as she wouldn't know she was in fact pregnant).

It seems to me that we don't and can't extend to the post-implantation embryo moral and legal protections.  To do so would require us to monitor (in some manner) every discharge from a woman's body, test it for the presence of an embryo, and then retroactively hold the woman accountable for whatever is discovered.  This seems both impossible to implement (or at a minimum extremely impractical) and greatly unjust to the woman.  So, as a practical matter, we don't and shouldn't consider an embryo a human being simply as a result of implantation.  Thus, while there is a clear factual distinction between pre- and post-implantation, I don't think that distinction has any moral or legal significance.

The second potential break-point, then, is when a woman becomes aware that she is pregnant.  Here the invincible ignorance argument dissolves away, and we enter the realm where it would be possible for a woman to "have an abortion" in the way we generally think of that concept--upon realizing that one is pregnant, taking some affirmative action to end the pregnancy.  It is also the case that the developing embryo/fetus has a greater impact on the Social Other at this point then prior to awareness of the pregnancy.  Before, all the social impacts were both indirect and purely physical--the mother-to-be experiences a series of often ambiguous symptoms, which might affect the way she interacts with the rest of society.  Once she becomes aware she is pregnant, the effects are still indirect, but are expanded to include changes to the subjective experience of the woman in society.  Her sense of herself may be different, the news will affect her relationships with loved ones, friends, and those around her (hopefully positively) and may cause people to treat her differently, etc.  We treat pregnant women and couples who are expecting children differently from those who are not in that state--there is a social dimension to pregnancy which is triggered by and directly related to the knowledge of the woman that she is pregnant.  This has effects on human society, and so is something that can and should be considered when assessing the moral status of the developing fetus.

So, it seems to me that the "hard pro-life" position would say that the fetus is entitled to moral and legal protection from the moment the woman becomes aware that she is pregnant.  At that moment, the future child has impacted our collective human social framework, and so to terminate that pregnancy would both violate the humanity of the fetus and diminish our collective human fabric.  That's an aggressive position, but one that is justifiable, I think.

But there is a third break-point that should be considered, one that has an ancient pedigree--the moment of "quickening" or the first time the fetus moves inside the mother's womb.  The first time the fetus moves inside his or her mother's womb is the first time that it interacts with another human being in a non-passive way.  Previously, all of the impacts on the social world stemming from the fetus came from the simple existence of the fetus; now, the fetus is "doing things" and causing impacts on someone else as a result of autonomous, self-directed actions.  Because the fetus is now self-directed and autonomous, it seems to me that the mother now has, or at least can develop, a genuine "I/Thou" relationship with the baby-to-be that is difficult or impossible to have before.  We also generally attribute personality and mood to the baby-to-be at that point--he or she is agitated or angry today, but might be quiet and content tomorrow.

It is worth mentioning that under English common law abortion was only a crime post-quickening.  We might call this the "soft pro-life" position, which would hold that it is morally and legally unacceptable and wrong to terminate a pregnancy post-quickening, but not be willing to treat pre-quickening terminations in the same way (where the "hard pro-life" position would not make any distinction between the two).  Since quickening occurs somewhere between the 15th and 20th week of pregnancy, a ban or severe restriction on abortion post-quickening would be a substantial limitation--all third trimester abortions would be covered, and many second trimester ones as well.

But, in doing so, I think this approach maintains a recognition that the moral claim of the fetus, even the post-quickening fetus, is not identical to that of the born child.  The nature and character of the post-quickened fetus's interaction with human society is still significantly attenuated and constrained as compared to one that is born.  This attenuated and constrained relationship might be enough to result in legal and moral protections, but I don't think those protections are as absolute as what would inure to the newborn.  As an example, it seems to me that one can, and perhaps is affirmatively morally obligated to, prioritize the life of the mother over that of the fetus, even after quickening.  After all, the mother is unquestionably apart of human society in an unlimited way, where the fetus is not, and so the mother's claim to life can be said to override that of the fetus.  Thus, in a case where for medical reasons one is forced to choose between the fetus and the mother, it does not seem unreasonable to most people, even self-described pro-life people, to advocate saving the mother even if it results in the death of the fetus.  We see this intuition reflected in the widespread support for "life or the mother" or even "health of the mother" exceptions to abortion restrictions. [Likewise, for what it is worth, I think you could argue from this that Gianna Baretta Molla's decision to prioritize her fetus over her own life was affirmatively immoral and wrong-headed, as it removed a person who was fully and completely entwined in human society (especially as the mother of three kids) for the benefit of someone with a lesser, if still significant, moral claim].

Likewise, the "soft pro-life" position should view pre-quickening abortions as undesirable and morally fraught--something that we would be better without and something to be affirmatively discouraged.  But, it would not be hypocritical or morally inconsistent to argue that the legal protections which are appropriate for post-quickening abortions are not appropriate before that point.  The nature of the claim to humanity that a fetus has pre-quickening is just different in kind from post-quickening--the fetus is not an autonomous entity in the same way, it doesn't have a sense of personhood--making it appropriate to have different rules and different sets of standards.  "Safe, legal, and rare," at least as applied to pre-quickening abortions, might be an appropriate slogan for that position.

As the title of these posts suggest, this is a thought experiment, so I am not willing to fully commit to a particular conclusion.  It seems to me that the "soft pro-life" position has much to recommend it.  But I can see where both the "hard pro-life" and the "hard pro-choice" (i.e. no legally protected rights until birth) are coming from, and I think both of those are defensible positions. Importantly, I think this framework might allow for the "great middle" on this question (where all the polls suggest most people reside on abortion) to have a more productive set of tools to hash out their views. Right now, the pro-life side is almost forced to embrace a framing of the question that allows for no principled compromise, no matter how early in the development cycle and even extending back beyond what most people consider "abortion" and into "contraception."  In reaction, pro-choice thinkers tend to get pushed into positions that do not allow them to accept any account of the humanity of the fetus.  The result is predictable--two completely antagonistic factions who can do nothing but lob bombs at each other.

What this exercise has shown me is that, in order for there to be a middle ground for reasoned debate on abortion, there has to be some way for pro-life people to accept the premise that there is a principled distinction between a child that is born and a child that is in utero, without it necessarily following from that distinction that the fetus has no legal or moral protections.  Said another way, compromise and debate is only possible if there is a cohesive way to say both that the fetus is worthy of legal and moral protection, and that they are not the same protections or protections to the same degree as a newborn.  I think most people, including most people who would identify as pro-life, do have an intuitive sense that there is a distinction between the two, but there are not many good ways to articulate that distinction that don't require you to concede the entire issue from the jump.  It seems to me that something like the framework I have sketched might do some good to provide such a basis.

This approach would also have the effect of eliminating the disputed and (in my view) unproductive argument over whether this or that method of birth control is "really" an abortifacient.  Except for folks who are also anti-contraception in principle, I feel like this argument is really an exercise in slippery-slope policing--because many pro-life people feel like they have to defend "life begins at conception" in order to have a cohesive position, they feel they also have to defend that idea all the way through to this point.  In other words, they feel they have to say that an IUD can cause an abortion as a result of the logic of their position, not because they have some intuitive sense that it is so.  All of that would be gone under this framework--regardless of the specific mechanism of any particular method of birth control, a woman can never be morally culpable unless or until she is aware she is pregnant, so all of the disputed methods would be morally acceptable (including, by this logic, the so-called "morning after" pill).

Along those lines, this approach would completely decouple the abortion question from the contraception question, as under this model there is no cohesive pro-life position until the woman becomes conscious of being pregnant, leaving all interventions prior to that point morally acceptable.  That would be bad news for Theology of the Body Catholics, who have made so much hay linking the two questions, but I suspect it would be a relief for many pro-life folks who have no desire to defend an anti-contraception position.  I know I keep coming back to moral intuitions, but I think most people simply don't see abortion and contraception as being the same thing, whatever their views on abortion.  This is a way to get out of that morass.

In any event, those are some thoughts that have been kicking around in my head for a while now.  Maybe they are useful, maybe not.