Abortion and The Argument from Personhood
A biologist's take on the reactionary politics surrounding feticide.
In America 38 states class a foetus as a person in criminal and tort cases and attach additional penalties to cases where a mother and her unborn child are injured. 29 states do not have a minimum gestation time and confer personhood status regardless of the foetuses stage in development. In theses states if you punch a woman that’s one week pregnant in the gut and kill the foetus additional charges can still be filed.
Generally speaking the penalty for committing feticide specifically ranges from manslaughter to first degree murder if the death is not the result of a legal abortion consented to by the mother, routine medical treatment, medical testing or in an act deemed necessary to preserve the health of the mother and additional penalties are often applied such as an extension of the statute of limitations, limitations on parole (requiring 50% of their time be served before application) and adding additional limitations on how much sentance credit a prisoner can earn.
In the united states at least the repercussions for killing a foetus are severe. And they can only be made so severe as the result of selective application of legal personhood as defined in the constitution.
Which means that, from a legal standpoint the personhood of a foetus depends more on the context of harm than on science or philosophy.
The Argument of Viability and Late Term Abortion
Viability is defined as the ability of the foetus to survive outside the womb. Basically if the mother gave birth prematurely would the foetus survive? This is thought to be a defining moment of personhood because it demonstrates independence from a host. And it’s true from a legal standpoint, once a foetus is given birth to and as long as it’s alive it’s legally a person. Where this breaks down however is when you consider the opposite. Does dependance make you less of a person? Legally it can mean that you have fewer rights and freedoms, but the caretakers of an insulin dependant, crippled, mentally ill woman don’t have to right to kill her because she’s dependant on them to survive. She’s still protected by the constitution. In this sense a foetus’s level of dependence isn’t a terribly compelling argument on its own. Especially as medicine advances and pushes back the age of viability. At this point you have to question, is the standard of personhood when it can survive without medical intervention or should it be when it can survive with medical intervention? If it’s the latter would it not be more ethical to remove the foetus from the mother and incubate it artificially? Or would the application of legal personhood require that the mother carry it to term as to do otherwise would be to take unnecessary risks with someone else’s life?
At the stage of a late term abortion (22–28 weeks) I feel it’s safe to say that the foetus counts as a person as it has the potential to be viable outside the womb and potentially has brain activity and the ability to perceive pain, though the latter part is not clear or well understood as pain is a subjective experience. As a result the discussion about late term abortion requires a little more nuance than abortion at any other stage.
The legal limit for late term abortions is sometime during the late second, early third trimester, between 22 and 28 weeks. The latter option only being legal in three states. For context the survival rates for preemies are as follows: 10% survive at 22 weeks, 50–66% at 23 weeks, 66–80% at 24 weeks, 75–85% at 25 weeks and over 90% at 26 weeks.
The current record for youngest preemie to survive was born at 21 weeks in 2014 and at present appears to be developing normally, both physically and academically. Most preemies born before 22 weeks aren’t resuscitated or put on any kind of life support as they are considered unlikely to survive. It’s a bit circular if you ask me. No attempt is made because it’s unlikely to survive, and as a result it doesn’t survive. There is of course the question of cruelty, but with the technology we have now I don’t think we’ve done enough research to definitely call life saving attempts at that age cruel as we do not know if it would result in normal development or prolonged suffering. But I’ll get back tho that later.
According to the CDC, 67% of abortions are performed before 8 weeks, 91% are conducted before 13 weeks and only 1.2% of abortions are conducted after 21 weeks. It is a testament to the current political climate of this country that I had to get the following statistics from a foreign study conducted in france as the American based publications were rampant with bias, misinformation and deliberately skewed results.
37% of late term abortions were the result of a false negative in a previous health screening. Meaning that a wanted pregnancy was found to have severe health risks and deemed inviable or unethical to carry to term. 40% should have been aborted at an earlier stage but no testing was done prior to identify the health defects present. In 18% a diagnosis was not possible until after 22 weeks. (Complications for Zika fit into this category) The remaining 5% were previously scheduled abortions that had been delayed.
Assuming the 5% had absolutely no medical basis, and assuming this study is representative of the reasons late term abortions are conducted in the united states, 5% of 1.2% of all abortions are truly representative of what many activists claim is common practice. The actual reasons for late term abortions are, as far as I’ve gathered, unexpected and tragic. A wanted pregnancy goes wrong and the infant is, for whatever reason, deemed unviable by medical personnel, which is why the question of whether or not a preemie would survive at a similar stage isn’t comparable.
I personally know someone who chose to carry an infant with horrific and terminal deformities to term, only to watch their son die slowly over the next day and a half. And I’ve seen a lot of similar stories on pro-life mommy blogs, touted as a good thing because the parents got to meet their kid and watch them go to heaven. My question is, if you know about this inevitability before the child has reached a point where it can experience pain, where it can suffer, is it not more ethical to prevent that suffering? I think arguing endlessly about personhood misses the point entirely when discussing a organism that has the potential to experience pain should it develop past 23–24 weeks. The discussion should be about minimizing suffering.
Brain Activity as Evidence of Personhood
This flows into using the presence of brain activity to define personhood. Something that’s only detectable by EEG at 26 weeks. Since this only occurs after the pregnancy would be classed as late term, and at the point when 90% of preemies are viable, the question of personhood isn’t going to answer the ethical question posed by a lot of late term abortions as the foetus is a person according to all all other arguments as well.
Regardless brain activity is the means by which we determine legal personhood in adults, if a person is brain dead, they don’t have the constitutional protections in place to prevent doctors from harvesting their organs or turning off their life support and killing them. From a religious standpoint the brain is the first conscious, calculating thing a hypothetical ‘soul’ could latch onto so it makes sense that some religions view the development of a brain as the point of ensoulment and it’s the reason many religious people now view the brain as the physical manifestation of who ‘they’ are as a person. The concept of a soul being an ethereal and unscientific concept does make it a poor mechanism by which to define personhood in all but a religious context. Given that the government of the united states is by definition secular, this argument cannot be used as justification for legislation. However because we are a representative constitutional democracy it’s important to engage with these arguments as they have a direct influence on who gets elected and what legislation they are likely to pass.
Gastrulation as Evidence of Personhood
The next lowest stage thought to be the point of personhood is gastrulation. As discussed previously in lecture gastrulation is the point at which a twin cannot be produced and is the point at which the cells differentiate and specialize, losing their totipotent qualities. It’s the point at which the organism becomes distinguishable from a genetically identical sibling and therefore definitively unique. Some religious folk will argue, essentially, that the first point of true uniqueness is the point at which the rights of personhood should be conferred. Part of this has to do with the belief in a soul and I suspect a lot of it has to do with the statement in Roe V. Wade that an unborn foetus is not a person in the sense protected by the constitution. In their ideology if they can reclassify a foetus as a person in the legal sense then the precedent set by Roe V. Wade can be overturned. Which again completely fails to consider the ethics one way or another. Coincidently much of the legislation regarding stem cell research is currently predicated on this definition of personhood as stem cells cannot be harvested from embryos that have undergone gastrulation.
Fertilization and Unique Genetics as Evidence of Personhood
Fertilization is the last level and incidentally the one that makes the least sense. The life of the organism begins here, it has its own unique genome but it may not ultimately end up as a single lifeform. It may end up as twins, triplets, etc. And while they would share the same genetic code twins are not the same individual. They behave differently, have different preferences and may even look slightly different physically. I have met people that think that twins have the same soul, or that their soul split into two and now there’s two copies of it differentiated by experience but I don’t think that belief is particularly common. So according to the vast majority of people twins would be considered different people. So it’s especially unlikely that the line of personhood will be drawn here.
I think if I had to point to the most compelling age of personhood I’d say 26 weeks as at that point all four factors (unique genome, unique cell pattern/body-plan, external viability and brain function) have all converged. No matter what option you select as true they’re all present at this point.
But I don’t think personhood is necessarily the means we should use to legislate abortions because it completely ignores the problem of cruelty. One of the main reason conservative abortion legislation fails is not due to a failure to argue personhood, but in its failure to consider the health of the mother and the pain experienced by a malformed fetus that’s carried to term. Nothing about this topic is simple and it’s unethical to legislate as if it is.
In closing I have a few questions for you.
1. What would you select as the latest point at which an abortion for medical reasons is ethical? Why have you chosen this date?
2. What is the latest point at which an abortion for non-medical reasons is ethical? Why?
3. If our ability to artificially incubate foetuses to term allows us to extend the date of external viability how do you think it should change the laws regarding abortion?