Child v. Monther - Urborn Child
The Child v. The Mother:
Abortion raises a variety of moral, legal, social and medical questions. If the pregnant women finds it necessary to terminate her pregnancy, does she have the right and upto what moment and on what conditions? Since such termination raises a conflict between the rights of the child and the mother (the child's right to survival and the mother's right to terminate the pregnancy), who is competent to adjudicate the claim? As a basic premise law states, that killing a foetus is not permissible. If then qualifies, this opposition by specifying a series of exceptions. These exceptions purpose to be based on some specific consideration. One such consideration is concerned with the conflict between the rights of the mother and the rights of the child. The mothers right is allowed to prevail, in some situations. The women's supposed superiority in his matter is jurisprudentially explained in terms of the "necessity" of the situation coupled with her right to self-defence. To save the life or the health of the women, on a balance of probabilities, the lesser evil is looked upon as the limitation of the foetus to that of the mother.
As per Section 81 of Indian Penal Code an act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not be otherwise be awarded and which if they had allowed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. Reliance on the doctrine of self-defense is nothing new to the law. All legal systems recognize the right of a living individual to protect himself from danger to his own life and, for that purpose, to use necessary force even to the extend of causing the death of the person creating the danger.
The law most undoubtedly authorizes the man who is under reasonable apprehension that his life is in danger or his body in risk of grievous hurt to inflict death upon his assailant even when the assault is attempted or directly threatened by the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self defense. In this case the continuation of the existence of the foetus is looked upon as dangerous to the life of the mother. The balancing of one life against another life in such circumstances may be understood by some stretch of reasoning. The difficulty arises on the issue of balancing of one person' health against another person's life. Here arise certain ingrained complexities. Life and health do not get equated on a common platform.
The fact that the women's health would be endangered if the pregnancy is carried to the full term was not [until fairly, recently] recognized as a justification for abortion. That step has not been taken but obviously it constitutes greater inroads in the sanctity of life [of the foetus] than a provision intended to guard against danger to the women's life.
Rights of an Unborn Child:
Several ethicists, such as Michael Tooley, Mary Anne Warren, James Rachels , and Virginia Ramey Mollenkott, have put forth criteria that a being must fulfill in order to be considered fully human. For some these criteria apply to any entity, whether before or after birth. In fact, according to Tooley, birth has no bearing on the moral status of the newborn. Those who defend criteria for full humanness make a distinction between "being a human" and "being a person." They argue that although the unborn are part of the species Homo sapiens, and in that sense are human, they are not truly persons since they fail to fulfill a particular set of personhood criteria.
Although the defenders of personhood criteria do not agree on everything, their underlying philosophical assumptions are similar enough that it is safe to say that if it can be shown that these assumptions are significantly flawed then no personhood criteria theory can succeed in supporting the abortion-rights position. Since Mollenkott's view is the most clear and succinct example, use of her article can be used as a point of departure to critique the personhood criteria position. Although much of critique of this view can be found in the criticisms of the other decisive moment and gradualist theories, its underlying philosophical assumptions, which are oftentimes not addressed by the proponents of this view, are deserving of a separate critique.
In order to fully grasp Mollenkott's position, consider the following:
Kay Coles James of the National Right to Life Committee claimed that fetal personhood is a biological fact rather than a theological perception. But in all truthfulness, the most that biology can claim is that the fetus is genetically human.... The issue of personhood is one that must be addressed through religious reasoning. Hence, the
Mollenkott's argument can be put in the following argument-outline:
- Premise 1 - A person can be defined as a living being with feelings, awareness, and interactive experience. (I assume she means some sort of consciousness.)
- 2. Premise 2 - An unborn entity does not possess the characteristics of a person as defined in Premise 1.
- 3. Intermediate Conclusion - Therefore, an unborn entity does not possess personhood.
- 4. Final Conclusion - Therefore, killing an unborn entity is not seriously wrong.
Others, such as Tooley and Warren, give more elaborate criteria of human personhood. For instance, Tooley claims that a being "cannot have a right to continued existence unless he possesses the concept of a subject of experiences, the concept of a temporal order, and the concept of identity of things over time." It follows that a nonself-conscious being with no desire for its own continued existence has no right to life. The reason behind this proposition is that only an entity that functions in a certain way is a person with a full right to life (i.e., fully human). This proposition cannot be maintained for several reasons.
First, it does not seem to follow from the intermediate conclusion (that an unborn human is not a person) that abortion is always morally justified. Jane English has pointed out that "non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all." English goes on to write that we consider it morally wrong to torture beings that are nonpersons, although we do not say these beings have the same rights as persons. "If our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work."
Second, one can question why one must accept a functional definition of personhood to exclude the unborn. It is not obvious that functional definitions always succeed.
Similarly, when a person is asleep, unconscious, or temporarily comatose, or a newborn, he (or she) is not functioning as a person as defined in premise 2. Nevertheless, no reasonable person would say that this individual is not a person while in this state.
Consequently, it does not make sense to say that a person comes into existence when human function arises. Rather, it does make sense to say that a fully human entity is a person who has the natural inherent capacity to give rise to human functions. And since an unborn entity typically has this natural inherent capacity, (he or) she is a person. As John Jefferson Davis writes, "Our ability to have conscious experiences and recollections arises out of our personhood; the basic metaphysical reality of personhood precedes the unfolding of the conscious abilities inherent in it." Therefore, an ordinary unborn human entity is a person, and hence, fully human.
In other words, because the unborn human is a person with a certain natural inherent capacity (i.e., her essence), she will function as a person in the near future, just as the reversibly comatose and the temporarily unconscious will likewise do because of their natural inherent capacity. The unborn are not potential persons but persons with much potential.
If the unborn child is a human being entitled to rights (i.e., a person), it is entitled to the right to life. The right to life implies a correlative duty in all other persons not to take the life of the unborn child, except in two cases: viz., (i) the case in which the child commits aggression against the life of another person; or (ii) the case in which the continued life of the child and the continued life of another person are mutually incompatible because of the existential circumstances. These cases involve: (i) the privilege of self-defense, which permits a victim of aggression to defend his own life, even if that defense requires taking the aggressor's life; and (ii) the privilege of self-preservation, which permits an innocent individual to take the life of another innocent individual in an 'emergency' situation in which both cannot survive, and the survival of one depends upon the denial to the other of the means of survival. The question is: Does abortion come within either exception to the duty of every individual to respect and preserve the life of every other individual?
- Abortion is not an exercise of the privilege of self-defense, since the unborn child is not an aggressor.
- Aggression involves an act of will or an act of negligence. It can never arise from an act that is caused by existential forces beyond an individual's control. I.e., there cannot be aggression if human action, in the sense of purposeful behavior, is not involved at all.
- B. The creation of the fertilized egg and its attachment to the uterine wall are not "acts" of the unborn child in the sense of being purposeful. They are the result of existential biological forces independent and beyond the control of the child (although not of the father and mother), and brought into play by the combined acts of the father and mother.
- C. Since the unborn child cannot rationally be held responsible for its own creation, it cannot rationally be held to have committed aggression by coming into - indeed, being brought into existence. Aggression implies responsibility; and no human being is responsible for his own creation.
- D. Since the unborn child is not and cannot be an aggressor, the mother cannot invoke the privilege of self-defense against its continued existence in the one place in which, at that stage in its development as a human being, it is both logically and biologically appropriate for it to be. (N.B.: whether the father in a rape situation is guilty of aggression is another matter. In any event, his guilt cannot rationally be imputed to the child.)
- II. Abortion is not an exercise of the privilege of self- preservation, since, in the usual case, the mother's life is not endangered by the pregnancy.
- A. A privilege of self-preservation arises only in those situations in which the lives of two or more equally innocent persons are in jeopardy, and not all of them can be saved.
- B. Pregnancy is not such a situation in the normal case. Were it so in extraordinary cases, the mother would have a privilege to defend her own life through abortion, or to choose to give up her life to save the child (assuming this could be done medically). In such a situation, neither the state nor even the father of the child would have any right or privilege to interfere with the mother's decision.
- III. In sum, since abortion does not come within the two recognized exceptions to the right to life, and is inconsistent with the right as far as the unborn child is concerned, abortion must itself be a form of aggression repugnant to libertarian principles.
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