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Published online by Cambridge University Press: 01 January 2020
In a recent trial in the United States a physician was convicted of manslaughter during the performance of a hysterotomy on a woman pregnant from twenty to twenty eight weeks. Some members of the jury, in their deliberations, were much impressed by seeing a photograph of a fetus of about the same age. The experience apparently provided some jurors with reason to conclude that the fetus which did die during or immediately after the hysterotomy was a human being or a person or, at least, was so like a child that the killing of it was prohibited by the law of homicide. If being a human being is not the same as being a pre-natal progeny of homo sapiens, it is difficult to understand how one could “tell by looking” whether the fetus is a human being. But the sight of a fetus of twenty weeks or longer does, I think, tempt us to think that from a moral standpoint we ought to extend the same treatment to such fetuses, or virtually the same, as we extend to newborn babies and young children. The visual similarities between middle or late stage fetuses and newborn babies is striking.
1 An account of the Boston case may be found in Newsweek (March 3, 1975).
2 Throughout ‘fetus’ should be understood to refer to a homo sapien fetus; similarly for ‘infant', ‘neonate', and so on.
3 The longer version is: Wertheimer, Roger “Understanding the Abortion Argument,” Philosophy and Public Affairs, Volume I, Number 1, (Fall, 1971): 67–95Google Scholar. The quotations are from the above piece. Another, shortened, version under the same title is in (1) Feinberg, Joel ed., The Problem of Abortion (Belmont, California: Wadsworth Publishing Company, 1973), 33–51Google Scholar, and (2) Rachels, James and Tillman, Frank eds., Philosophical Issues: a contemporary introduction (New York: Harper & Row, 1971), 6–18Google Scholar. Future references are to the latter work unless otherwise indicated.
4 Ibid.
5 Ibid., p. 13.
6 Ibid., This passage and numerous others strongly indicate that Wertheimer's position is roughly that of the conservative, in spite of much detached thirdperson language about what “the conservative” stresses, argues, and so on. He speaks of the “full power and persuasiveness of the conservative argument” (p. 13) and, generally, waxes most eloquent when describing it, while, in contrast, stooping to concede that the liberal does have a few arrows in his “meagre quiver.” (See pp. 83, 78 of the original article.)
7 Cook, Robert E. et al., The Terrible Choice: The Abortion Dilemma (New York, Bantam Books, 1968) pp. 36–38.Google Scholar
8 Again I take Wertheimer's development of the conservative's challenge as my focal point.
9 A consequence of Wertheimer's view is that given the humanity of the neonate there is no reason to deny humanity to the fertilized egg or zygote (seep. 13; although there is reason to do so, in his view, for the sperm and. unfertilized egg); on such an assumption the use of certain intra-uterine devices which prevent implantation of the fertilized egg in the uterine wall turns out to be a form of homicide.
10 Other cases are not difficult to imagine. Consider the gradual development from not being senile to being senile or the transition from infancy to adulthood. While it is difficult to “draw a line” it is clear that the great differences between non-adjacent stages of development are decisive in the justification of differential treatment which we extend to the different stages (e.g., whether moral responsibility is present or not).
11 Wertheimer, op. cit., p. 14.Google Scholar
12 Ibid.
13 Ibid., p. 11.
14 Wertheimer's concern about what to call the fetus is evidently one over whether to call it a human; his claim that deciding to call it a human or deciding not to do so is tantamount to a serious moral decision is true but trivial if by “human” one means, e.g., “an entity with an absolute right to life.” If ‘human’ is used in a variety of evaluative or moral ways, it is indeed a serious moral decision to call the fetus a human. Assuming that Wertheimer takes himself to be making a nontrivial proposal, one must suppose he is using ‘human’ in a non-evaluative manner; if this latter supposition is correct, however, difficulties arise, and I identify just these in the ensuing discussion. Henceforward, I take the question of what to call the fetus as the question of whether it can be properly classified as a human (in a non-evaluative sense of ‘human’).
15 Wertheimer says that we may be “stuck with the indeterminateness of the fetus’ humanity” but that, “the same moral and political decisions still confront us” (pp. 88 and 89 of the original article). Hence, he seems to agree with one ground I offer for not speaking, as he does, of the question of the classification of the fetus as “tantamount” to deciding the moral question; one can avoid opting for “human” or “not human” while deciding the moral question.
16 I am grateful to my colleague, Tom Regan, whose comments have moved me to a more careful statement of my position.