If Abortion, then Infanticide

I. Introduction

It is frequently claimed that there isn’t common ground between

abortion defenders and opponents. One side believes that the existence of a

divinely created soul bestows value upon its possessor, or that mere

membership in the human species warrants special protection, or fetuses

are persons from conception etc., while the other side denies these and

deadlock results. Nonetheless, there is common ground – virtually everyone

on both sides of the debate is opposed to infanticide. However, the bad

news for abortion defenders is that all of the major defenses of abortion

draw upon principles that also permit infanticide. There is no way to

distinguish infants from fetuses in terms of an intrinsic morally relevant

feature that the former has and the latter lacks – neither one is rational,

morally responsible, self-conscious, concerned about its future etc. Nor can

they be distinguished on an extrinsic basis for it isn’t always the case that

infants can survive independently of their mother’s bodily support or are

less of a burden on their mothers than fetuses. So the logic of our position is

that if the standard arguments rehearsed below justify abortion, then they

also justify infanticide. And since infanticide is not justified, then such

arguments fail to justify abortion.

We will consider nine familiar arguments for abortion and show that

they are also defenses of infanticide. We will divide them up in five different

ways. The first category will consist of three arguments that we suspect

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abortion defenders don’t, deep down, really believe: avoiding the inequity of

imposing burdens only upon women justifies a right to abort; the fetus

doesn’t deserve protection until viable; and the aborted would otherwise

suffer great hardships. It is not that we believe abortion defenders are

insincere, rather, they are conflating principles. Nevertheless, there is still

reason to consider these arguments: if we’re right about why these views

are held, it will be news to their defenders that they are misrepresenting

their own commitments; if we’re wrong, it’s still important to reveal that

they imply infanticide. A second category contains the claim that the bodily

burdens of pregnancy are too great to deny women a right to abort

throughout their entire pregnancy. But if avoiding such burdens justifies

abortion, infanticide will be likewise justified since there are scenarios

where preserving the life of newborns involves shouldering burdens

comparable to those of pregnancy. A third category will include what many

abortion defenders in public debates view as their trump cards: rape-

induced pregnancy and fatal back alley abortions. We consider their role in

the abortion debate to often be more misleading bluffs than bona fide

trumps. But regardless of the motivation for their prominence, the

principles drawn upon to permit abortion in such cases would also authorize

infanticide. A fourth category of abortion defenses groups together claims

that potentiality can’t be morally significant. The result is that abortion

defenders will have to recognize that early embryos have the morally

relevant potential or be forced to tolerate infanticide. The last category will

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consist of a pair of arguments that either the lack of consciousness or the

absence of the appropriate conscious ties render abortion permissible. But

once again the reasons given for why those with minimal or no minds can be

killed will fail to distinguish the newly born from the unborn.

In the final section of the paper we respond to those who would

accept infanticide. We do so by putting forth a novel account of how the

mindless can be wronged which serves to distinguish morally significant

potential from morally irrelevant potential. This allows our account to avoid

the standard objections that many entities posses a potential for personhood

which we are intuitively under no obligation to further or protect.

II. Three Arguments for Abortion that Abortion Defenders Espouse

but don’t Really Believe

1. An abortion ban violates a woman’s right to equal treatment

We suspect that few abortion defenders will, upon reflection, insist

that abortion is unjust because it involves an unequal distribution of

burdens that falls only on women.1 While it is true that only women get

pregnant and no comparable burden is imposed upon men, we suspect that

equality is really beside the point. Our suspicion is that if men could get

pregnant, the earlier advocates of abortion would still endorse a right to

abortion. If the inequality plays any role here it is just intensifying the

existing grievance of having one’s bodily freedom restricted in a society

where women have historically been denied the opportunities of men. We 1 Variations of the equality defense can be found in McKinnon (1987) and Nussbaum (2008,

342-43).

4

think it far more likely that doing the real work in the defense of abortion is

a belief that a woman’s autonomy allows her to refuse to take on the

immense physical burdens involved in pregnancy. And such an exercise of

autonomy would be deemed legitimate for men as well if they could become

pregnant.

In any case, the inequality argument provides a defense of infanticide.

Imagine a woman giving birth in an isolated community and there being no

digestible formula and no breast pumps to fill up bottles. Thus the mother

must nurse around the clock. Also assume the nursing is painful as well as

exhausting. Nevertheless, the mother surely can’t kill the nursing child

despite these considerable burdens being unequally distributed.2 So if they

don’t justify infanticide, why would they justify abortion? We have already

mentioned that there isn’t any intrinsic morally significant difference

between fetuses and newborns. They both lack the cognitive abilities of

most household pets. That the newborn has not reached a stage of

development that bestows intrinsic value and warrants protection can be

more clearly seen if we eliminate any subtle influence of potentiality on our

thought by imagining another species that normally develops mental states

comparable to the human infant but then naturally stagnates, i.e., stays

alive but develops cognitively no further.3 Such a creature would have very

2 Any concerns that such burdens are not considerable enough – thus infanticide is unjust

while abortion is not because nursing is not as difficult as carrying a fetus to term – will be

met by our response below to the fourth argument.

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little moral status and we would be obliged to do little, if anything, to save

it, and would not have to do much more to avoid killing it.

2. Abortion is permissible until the fetus becomes viable

That abortion defenders don’t really believe viability is morally

significant can be revealed when they are asked to imagine hypothetical

scenarios where the timing of its onset is changed. Consider first that

viability doesn’t occur until late in the ninth month of pregnancy. Abortion

would be permitted virtually up to birth. Few abortion proponents will be

comfortable with this. But it shouldn’t be disconcerting if viability truly

mattered morally. Next assume the onset of viability occurs just a few days

after conception. Most women would discover they are pregnant after the

embryo becomes viable and thus virtually no abortions would be justified.4

But if viability is held to be a morally legitimate cut off point for abortion,

then whenever it occurs, that threshold should be morally acceptable. But

the discomfort with changing the onset of viability suggests to us that what

really accounts for the appeal of viability is not the actual principle of

independence from the mother but just the current time at which our

existing biotechnology enables the fetus to become capable of living outside

3 Potential needs to be offset for it is shared by fetuses and infants and thus can’t

distinguish their moral status.

4 To meet the objection that such women could still avoid the pregnancy by giving birth

prematurely, let’s stipulate that some pregnant women are then too frail to safely induce

labor though they could safely abort.

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the womb. We surmise the current onset of viability at roughly six months

after conception is attractive because it both gives women a grace period to

reflect upon such a weighty decision and still allows abortion defenders to

admit the fetus has some value and deserves a modicum of respect and

protection.

However, even if the principle of viability truly forms the basis of the

abortion defender’s position, it will allow for infanticide. Consider a woman

giving birth in an isolated community where she won’t be able to put the

child up for adoption for months. Assume as before that there’s no

alternative to around the clock breast feeding for there is no formula

available or the baby can’t digest it. The infant isn’t viable because she

cannot live without being sustained by internal products of the mother’s

body. If the reader insists that the newborn who needs her mother to

produce milk is just generically dependent upon the mother’s body, unlike

the gestating embryo whose needs cannot be met by anyone else, then we’ll

just stipulate that the mother’s milk is unique and no wet nurse can be

substituted. Surely she can’t bring about the death of the dependent

newborn even though her child isn’t viable, i.e., can’t live without the

support of the nourishment provided by her body.5

3. Abortion prevents difficult lives

5 If you object that the mother would just be letting the child die by not feeding it, then

imagine a hungry infant aided by a relentless adult that continually places the newborn

upon the women’s breast. The only way to stop such imposed feedings is to kill the infant.

7

One frequently hears given as reasons for abortion that children will

otherwise be born into poverty, broken homes, troubled neighborhoods or

face some other adversity. Sometimes concerns about adoption, foster care,

overpopulation and the environment are thrown into the mix. We doubt that

those who espouse such considerations are relying upon them in justifying

abortion rights. We suspect that only after it is assumed that there is an

independent justification for a right to abort are such considerations playing

a role in whether a women chooses to exercise that right. And that

independently established right is most likely grounded in the woman’s

right to control her body. The basis for our suspicion is that abortion

defenders would not prohibit abortion in cases where the mother is wed and

wealthy and the world is not overpopulated, resources are plentiful,

orphanages are empty, and high quality foster care is available. So

evidently such considerations aren’t necessary conditions for the

permissibility of abortion.

Someone might claim that the more charitable read is that such

considerations of poverty, single parent homes, overpopulation and the like

provide merely sufficient conditions for abortion, there being other

sufficient conditions permitting abortion in their absence. However, we

doubt that abortion defenders understand their defense as merely a

sufficient ground that either i) could vanish as conditions improve and every

pregnant woman turns out to be well-paired and well-off or ii) are

justifications for abortion available only to pregnant women without

8

partners and resources. So it seems that a consideration in support of

exercising one’s right to abortion has been confused with the justification of

that right.

Even if abortion defenders conceive of the above considerations as

sufficient reasons for some women in some places and time to abort, they

also provide the basis of a justification for infanticide in similar situations.6

We doubt anyone will argue that it would be just if poor or unwed mothers

in deprived neighborhoods authorized maternity ward staff to kill their

newborns given that they will face difficulties.7 Since we have already noted

the lack of an intrinsic difference between newborns and fetuses,8 a

consequence is that if such considerations about hardships and shortages

justify abortion, then they justify infanticide. Thus we again make use of

modus tolens and conclude that they therefore don’t justify abortion.

III. The Fundamental Assumption of Abortion Defenders: Control of

One’s Body

4. A right to be free of considerable bodily burdens

6 If only infanticide is thought to be objectionable because there is an immediate adoption

alternative that is lacking during the pregnancy, we’ll stipulate that adoption into a home

without similar obstacles isn’t available for a comparable time.

7 One surely can’t justify that on the basis that the child is better off dead than underfed

since very few poor children will prefer nonexistence to their difficult lives.

8 It might help to keep in mind that some newborns are premature and thus less developed

than late fetuses.

9

We believe that the right to control one’s body is the most common

defense of abortion and probably what is really doing the justificatory work

for those who appeal to the first and third of the above arguments.9 More

precisely, this right to control one’s body is the right to reject immense

burdens since many abortion defenders believe late abortion can be banned

and thus a women compelled to use her body to support another for a few

months. In Judith Thomson’s language, the right would only entitle women

to refrain from being a Good Samaritan for “there may well be cases in

which carrying the child to term requires only Minimally Decent

Samaritanism of the mother, and this is a standard we must not fall below”

(1971, 65). However, our contention is that if there is such a right that

justifies abortion, then it will also justify infanticide.

Imagine a tornado throws you and a newborn (a potential person)

onto the roof of a extremely damaged building. The newborn is on your lap

and wiggling. Her wiggling will cause the roof to collapse and you both to

fall. If she had remained still, you both would have been fine. Given your

current positions, you will hit the ground first and will thus cushion the

infant who will emerge unscathed. The fall will be as painful as an actual

delivery that ends a pregnancy. In addition, it will cause you nine months of

back pain, abdominal swelling, nausea, frequent urination and bodily

discomfort comparable to that endured in a pregnancy. If you rotate the

9 It is also playing a role in the appeal of viability for when a woman can evade pregnancy’s

burdens by inducing labor, she may not longer be allowed to abort.

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newborn so the child hits the ground first, the impact will fatally crush her

skull but you will be cushioned and will walk away unharmed.

Are you morally permitted to kill the infant to avoid nine months of

physical pain? It would seem not. And that is true even though the newborn

has no right to be on your body10 and her wiggling will be the cause of your

burdens just as the fetus produces the pregnant woman’s hardships. Why

then would your right to control your body justify your killing a fetus, which

like the infant, is just a potential person? We noted in the introduction that

there isn’t a morally relevant (intrinsic) developmental difference between

fetuses and infants. And we have just shown that that they can’t be

distinguished morally on the (extrinsic) basis of fetuses being more

burdensome than infants.

IV. Two Alleged Abortion Trump Cards

5. Abortion in the case of rape trump card

Pro-lifers are frequently asked in public debates: “Are you intending

to ban abortion even in the case of rape-induced pregnancy?” Some self-

identified pro-lifers make exceptions in the case of rape which keeps the 10 Someone’s lacking a right to be on or in your body means they can be removed even if

they don’t want to be. But they can be removed only if that can be done safely. To better

appreciate this, imagine that you are bird watching and absent mindedly trespass on my

private property, trip and break your neck. You have no right to remain there. But if

moving you will be fatal, then your right to life permits you to stay where you otherwise

don’t have a right to be. So our position about the wrongness of abortion and infanticide

can be maintained even if we admit the fetus has no right to be in someone’s body and the

newborn has no right to be on it.

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debate rightfully focused upon the other 99% of all abortions. However, we

think an exception even in the rare cases is unwarranted. We dissent not

just because we believe one can’t kill an innocent due to another’s crime.

We realize that response will actually carry little weight with abortion

defenders since they admit that all fetuses are innocent yet still can be

killed. There’s a more effective response which reveals an inconsistency in

the position of the abortion defender who is opposed to infanticide but

relies upon rape-induced pregnancies to expand abortion rights.

Consider a woman who is raped not long after having sexual relations

with her husband and then soon after that finds out she is pregnant. Since

she doesn’t know if the pregnancy is due to her husband or the rapist, she

doesn’t abort. The baby is born three or four months premature and turns

out to be the spitting image of the rapist and thus a source of great distress.

The woman lives in an isolated part of the world with inadequate social

services so it will be three or four months before adoption agencies can take

the child. Assume there is no alternative to breast milk and around the clock

feedings so the dependency of the premature baby on the mother’s body

will last as long as if it had been a full term birth.

Can the mother refuse to care for the newborn and thus bring about

its death because it is the rapist’s child? We doubt it and suspect most

people will share our skepticism. Surely where it is wrong to let an infant

die it is also wrong to kill that individual. Therefore, if a woman cannot

legitimately avoid the burdens required to save the newborn produced by

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rape, then she cannot permissibly end a pregnancy that originated in rape.

This is not to say that the raped women should be punished if she does

bring about the child’s death given the duress that she was under. 11

Perhaps what she does, though wrong and a violation of the innocent fetus’s

rights, is comparable to a crime of passion where the agent is considered to

have diminished responsibility.12

6. The botched illegal back alley abortion trump card

It is frequently stated that if abortion is banned, then women will die

in back alley abortions. These deaths are tragic. In fact, they are double

tragedies for they take two lives. But we are unpersuaded that such

tragedies provide a compelling reason to keep abortion legal. Abortion

defenders need to realize that pro-lifers view fetuses and newborns as

comparable and thus their deaths just as bad. There isn’t a difference in

their development that bestows greater moral status on infants.13 Once this

has been established, then we can argue that if parents were accidentally

killing themselves in attempts to commit back alley infanticides, society

11 The same doesn’t hold for the abortionist.

12 This possibility was neglected by Thomson who considered exceptions for rape to have

“the rather unpleasant sound” of making “some have less of a right to life than others”

(1971,49). But pro-lifers are no more saying some fetuses have less rights or value than

others because of their origin than the absence of a severe punishment in the case of a

crime of passion expresses a belief in the lesser rights or value of the victim.

13 It is worth pointing out that some infants are premature and thus younger than some

fetuses.

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shouldn’t respond to such tragedies by legalizing infanticide so such killings

would be safer to the parent. Thus if botched back alley infanticides don’t

warrant legalization, why do botched back alley abortions?14

We can maintain this position even if we grant that the death of a

woman, all other things considered, is a greater harm than the death of a

fetus. However, we would insist that the death of the fetus is roughly as

harmful as the death of the infant. The fact that the death of a woman is

worse than the death of a fetus or newborn doesn’t mean that we should

avoid her death by allowing her to kill fetuses and newborns. To see this

compare the fact that your being made a quadriplegic is not as bad as Smith

being killed. But if Smith chooses to harm you and will die in the attempt

unless we help him paralyze you, that help would not be justified.

V. An Abortion Argument that Potential Persons Lack A Right to Life

7. Potential persons don’t have the rights of actual persons and thus

can be aborted

It is often pointed out that just as potential presidents don’t have the

rights of actual presidents, so potential persons don’t have the rights of

actual persons. The upshot is that while persons have a right to life, fetuses

are but potential persons and so lack such a right. Of course one reason to

be suspicious of such an analogy is that infants may be merely potential

persons but ought to have the person’s right not be killed. Moreover, one

can always turn the tables and press a different analogy. While the potential 14 We have earlier noted that immediate adoption is not always available and so infanticide

can’t be morally distinguished from abortion on those grounds.

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president doesn’t have the rights of the actual president, he retains his

potential to be the president. The potential person that is aborted, on the

other hand, loses her potential to be a person. So it may be that just as a

potential president like yourself has a right to retain that potentiality,

similarly, a potential person such as the fetus has the right to retain her

potential for personhood.

There are also various dissimilarities that should make one suspicious

of putting too much stock in defending abortion by the potential

person/potential president analogy. One is that there is already a president

so a potential president is different from a potential person whose potential

can be realized without deposing another. And if there was not already a

president, there still would be so many potential presidents that they

couldn’t all realize the same potential, which isn’t the case for potential

persons. Also, many potential presidents are too immature to carry out the

responsibilities of the presidency so their potential would be insufficient for

according them presidential rights (Kaczor: 2011, 85). However, persons

don’t have duties that would keep potential persons from sharing their right

to life.15 Finally, it may be that some rights depend upon the exercise of the

right to be presently in the interest of the right holder. It isn’t currently in

the interest of an embryo or newborn to be the president but it is in their

15 Someone might object that persons have moral responsibilities. However, personhood is

only a necessary condition for being a moral agent. Phineas Cage had the requisite self-

consciousness for personhood but wasn’t a moral agent.

15

present interest to live and flourish.16 Hopefully our brief sketch suggests

some caution is in order before applying as a general principle that a

potential X doesn’t have the rights of an actual X.

We suspect both sides in the abortion debate talk past each other

meaning different things by “person.” The word is loaded with moral

connotations and so it is understandable that abortion opponents seek to

establish that the fetus is a person while abortion defenders argue

otherwise. Many philosophers follow Locke and use the term “person” to

apply to self-conscious beings able to reflect that they had existed in the

past and could exist in the future. Since such an interpretation suggests a

mindless fetus isn’t a person, some pro-lifers will offer other accounts:

perhaps claiming that it is the fetus’s capacity to acquire thought or its

membership in a rational kind that renders it a person. Such pro-lifers

(Eberl) will claim that fetuses are persons with potential, rather than

potential persons. Thus they are persons even before they manifest

rationality and self-consciousness just as reproductive organs are actual

reproductive organs rather than potential reproductive organs before they

sexually mature. (Kaczor: 2011, 98). Thus neither reversible coma nor

mental immaturity would be a reason to deny humans personhood.

But we think it less important than most pro-lifers to establish that

the fetus is a person. A newborn is not a person in the Lockean sense of

being self-conscious. It has no concept of being a person with a past and

future. It lives rather unreflectively in the present. But it is surely terribly 16 See section 10 for a defense of this account of interests.

16

wrong to kill an infant even though it is not a person. It is enough that it has

the potential to develop into a person that warrants protecting it as a

valuable creature. And that potential is there from the first moment of its

life. So if potential matters morally, then the fetus has it just as does the

infant. If it is wrong to kill the infant that is a potential person then it is

wrong to kill the fetus that is potential person.

We also think it less important than most pro-lifers to insist that we

were once early embryos. While we actually believe that we were early

embryos, aborting early embryos could still be very wrong even if we didn’t

come into existence until much later when our organism has matured

enough for the requisite mental capacities to manifest. It is often

overlooked by pro-lifers, as well as by pro-choice philosophers like

McMahan and Baker, that even if we were never early embryos, there

would be an organism distinct from us that has a valuable future as

envisioned by Marquis (1989) or “benefits from the good which it is its

nature to make for itself” as Stone claims (1987, 821). Baker even maintains

that the thinking organisms that constitute persons are as a result

derivatively persons (2005, 28). And McMahan argues that an organism

derivatively thinks in virtue of having a person as a thinking part (2002, 92).

So an early abortion may wrong an entity with the potential to be

(derivatively) a person even if we couldn’t have been its victim.

VI. Two Abortion Arguments that Depend Upon the Fetus Being

Mindless

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8. Consciousness and potential distinguish abortion from infanticide

Some abortion defenders might argue that either consciousness alone

or consciousness and potential is what provides moral status and that

makes late abortion and infanticide wrong, but not early abortion. It is

standardly thought that consciousness emerges around five months.17 But

why is consciousness important for immunity from being killed? Is it

because then someone can undergo a painful death? It would seem not. I

could kill an infant (or you) painlessly in its sleep, but surely that is wrong.

Is it that consciousness brings a morally significant cutoff point for

permissible abortions because only the conscious can have certain interests

that warrant protection? Again, the answer is no. Consider a newborn who

isn’t aware that it needs some high tech life saving procedure to avoid a

painless disease and death. Surely, it is in the infant’s interest to have its

health maintained even though it isn’t conscious of that interest.18 So if

17 It is worth pointing out that if Chalmers (1997, 293-99) or Strawson (2006) are correct in

their maintaining that the hard problem of consciousness can be solved only on the basis of

some sort of panpsychism, then the onset of consciousness won’t be able to do the work

and provide the moral status that its defenders hope. At best, they’ll have to appeal to a

certain type of consciousness as a cutoff.

18 This type of consideration is what makes it so hard to believe Harman’s (2003) claim that

while mindless embryos have an interest in continued life and are greatly harmed by their

death, such interests don’t have moral significance since the embryos are not conscious. It

is very difficult to see why consciousness would make such a harm a morally significant

harm if the conscious newborn isn’t even conscious of its longstanding interest in its life

being preserved.

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consciously conceptualizing that interest isn’t required for that interest to

belong to the infant, why wouldn’t that interest exist earlier in the embryo

before there was any consciousness at all? Alternatively, if the mindless

embryo isn’t protected from abortion because it doesn’t have an interest in

more life in the absence of a conscious concern with living on into the

future, then it is difficult to see why the fact that the infant is already

conscious protects it against infanticide when it hasn’t consciously

entertained a concern with surviving into the future.

It is worth keeping in mind that an ill fetus or neonate may never have

been conscious and wouldn’t become so until some months after being born.

Also, an injury or disease could temporarily rob a newborn of the capacity

for consciousness. So infanticide will have to be accepted in the first

scenario if consciousness is required for a right to life. And infanticide can

only be prevented in the second scenario by the addition of epicycles. One

will have to posit an asymmetry so that the once conscious retain the

relevant, interest, value and protection when later comatose even without

the underlying neurological capacity for consciousness being then realized

as it is in say the healthy sleeping person.

It can’t be that the onset of consciousness by itself so increases a

creature’s value that it becomes wrong to kill it. There are countless types

of nonhuman animals that are conscious but with very little moral status. So

consciousness per se seems to bestow little value. It is really the potential

for a certain type of consciousness that matters morally. But someone,

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perhaps influenced by Kagan’s (1989) discussion of the additive fallacy,

might argue that it is consciousness and potentially that together bestow

moral significance. Kagan diagnosed an additive fallacy where the reduction

of value due to the removal of one feature wrongly led to a belief that the

value of the whole was to be determined by adding the value of the

components. An analogous mistake would be removing an ingredient from a

recipe that resulted in it tasting half as good as it did before and thus

thinking that the removed ingredient provided half of the good taste. If the

meal scored a six on a taste scale, the removed ingredient would then be

ranked a three according to the fallacious additive inference. But that

ingredient may have been rather bland by itself, so its contribution with

other ingredients to the fine taste of the meal is better captured by a

multiplier than an additive effect. But we can see the unimportance of

multiplying consciousness to potential if we imagine a scarce life saving

drug that we can either give to a five month old fetus that just became

minimally conscious a day earlier or to a fetus that will become minimally

conscious in a day. Consciousness seems to bring little value for it appears

to be a coin toss to decide who gets the drug. Such reactions suggest that

we aren’t guilty of an additive fallacy and overlooking how potentiality and

its partner properties produce value via multiplication. Such responses to

the scarce drug choice perfectly cohere with our claim that it is the

potential for personhood of the embryo at any stage that matters rather

than the potential for personhood only of the conscious.

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9. Fetuses aren’t harmed by abortion because they lack

psychological ties to the future

People often don’t find it as tragic and harmful when a few weeks old

embryo miscarries than when a baby arrives stillborn; and even the death of

a newborn seems faless tragic to many than the death of a ten year old

child. McMahan (2002, 165-74) conjectures that the degree of harm of a

death depends not just on the nature and extent of the goods lost but upon

the degree to which the deceased would have been psychologically tied to

the future. The adolescent already has a mental life consisting of desires,

projects, relationships etc., while fetuses have no such psychology that

death could interrupt. Although the fetus or infant would lose more goods

than the ten year old, assuming they would otherwise have comparable lives

of the same length, the harm of death is greater to the infant due to his

being more closely tied psychologically to the future lost. At the time of

their death, fetuses and infants don’t have interests in those future goods

that they would lose out on.

We would suggest two alternative explanations, and they are not

necessarily incompatible with each other. First, we suspect is that the

alleged difference in harm and tragedy is really based on the misfortunes of

the deceased being confused with the greater harm and tragedy to their

parents. The parents have invested more energy and typically become

emotionally more involved with the older children and thus their deaths are

more difficult to bear.

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Our second suggestion is that the harm to the fetuses and infants are

not less than that to a ten year old but that the infant and infant are less

valuable so their harm matters less. This point can be seen most clearly by

comparing persons and animals. There could be a pain to a person that is

just as intense as the pain to an animal and even caused the same harm to

both. Although people are typically capable of both greater future goods

and being more psychologically connected to them than animals, thus

having more to lose from the inflicting of a debilitating pain than animals,

we will stipulate that in the case under consideration the harm to the

person is just as great as the harm to the animal. This could be because the

person can distract himself when undergoing the pain and the animal

cannot, or that the pain merely preempted another harm that would have

deprived the person of all of those goods that were above those that were

available to the animal to lose. But even knowing this, if we could prevent

an equally painful equal harm from befalling either the animal or the

person, we would prevent the equal harm being inflicted upon the person

because the person was more valuable. So it may be, pace McMahan’s

explanation, that it is the lesser value of the fetus or infant rather than

their lesser harm that is determining our different response to their

premature deaths than the demise of the ten year old. But as long as our

attitude is that infanticide is a great harm and wrong, even if not as bad as

killing the reader, then abortion too is a great harm and wrong.

VII. Conclusion

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10. Why infanticide and abortion are wrong

So we have seen that nine common arguments for abortion are also

arguments for infanticide. If infanticide is beyond the pale, then such

arguments can’t justify abortion. However, perhaps readers think McMahan

is right and it is wrong for us to care about infants (and fetuses) for their

own sake since they are barely or not at all harmed by death due to the

absence of significant psychological ties. They may think this because the

data that McMahan tries to explain with his account of harm isn’t limited to

judgments people make about the death of the very young so readers may

think our alternative explanations about their premature deaths isn’t

available for the other argument he makes in favor of his theory of harm. He

offers a thought experiment called The Cure which is supposed to elicit the

belief that the degree of harm of an event depends in part upon how

psychologically connected one is to the goods that the event prevents (2002,

77). He says to imagine that you are 20 years old and will die painlessly in

five years unless you take a medicine that will cause total retrograde

amnesia and radical personality change but will go on to live 60 more years

of a happy life with different desires and values that you have now. It is

known that people who take the care have a life that would be better, as a

whole, than your life would be if you were to refuse the treatment.

McMahan thinks most of us would be skeptical of the wisdom of taking the

medicine and some deeply opposed to it. McMahan suggests that the reason

23

such people would pass on the cure and a life with more good in it is that

they are not would not be psychologically connected to that life.

We suspect the problem for McMahan’s reader is that they can’t

really imagine the life after the cure would be valuable, enjoyable and, on

the whole, even better than their present one that would end in five years.

We have found that our students react differently to taking the cure if they

are offered the following story. They are told to imagine dying in five years

or living for sixty years over which they gradually lose just as much of their

current memories, values, beliefs as they would by taking the cure. But the

loss comes by fulfilling many of their present goals and their getting new

goals, being argued out of many of their beliefs and values, and just being

exposed to different ways of life and finding them more attractive. The

alternative life is described without any contents so it doesn’t appeal to the

listener’s existing desires for particular goals. Unlike The Cure scenario, the

change is more or less autonomous. What the autonomy does is enable the

listener to sincerely believe rather than just give lip service to the belief

that the longer life will be one with more good in it. Then we ask them to

imagine the same psychological change that was just obtained gradually

and autonomously would instead come immediately upon taking the cure.

The only difference is that there isn’t the autonomous change of beliefs. The

new cure is introduced as perfectly duplicating the contents of the more

autonomous change which thus make the same changes easier to accept as

something they would really find good and valuable than they could before.

24

We have found our students are then much more willing to opt for the cure.

Their interest in psychological continuity dissipates when the lack of

autonomy in the Cure imposed change is seen to produce the exact same

contents that would have been chosen autonomously. We think their

reactions are akin to our willingness to give up on our doctor obtaining our

informed consent through discussion if he would always recommend

treatments that were good for us and which we would have agreed to with if

asked after deliberation. Also assume that he had no contempt for our

decision making abilities. So autonomy isn’t that significant when we still

get what we would have chosen and this is done without paternalistic

contempt. Thus our alternative explanation of the resistance in The Cure is

the heteronomous nature of the change keeping readers from really, deep

down, believing the alternative sixty years of life would be good for them.

We think refusing to take the cure is imprudent. It strikes us, at least

on reflection, as childish as the four and six year olds we know who want,

respectively, to be a waitress and a fix it man (a handy man) and don’t have

any interest in any other professions. But surely there are jobs as good for

them, as much in their interests now as their chosen careers. But they don’t

desire them due to lack of imagination. We think they are irrational and

believe those who react to The Cure as McMahan’s expects are likewise

imprudent.

It is sometimes easier to see the imprudence of others than our own,

thus the ease in which we judge the kids shortsighted and irrational. But

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there are still conceivable futures for us that can reveal the unimportance of

psychological continuity and thus counter McMahan’s theory of harm.

Imagine the prospect of your being tortured and killed after suffering a

stroke that reduced you to infancy. We suspect you wouldn’t find that any

less dreadful than being tortured and killed when your psychology is

unchanged. The fact that you are not psychologically continuous with the

being later tortured and killed is little consolation. So it appears that you

can have an interest now in not being harmed by future events even though

there won’t be any psychological ties between yourself now and yourself in

that future. Harm doesn’t appear to be determined by the degree of

psychological connections. What matters is that it will be you that is

harmed. In other words, identity matters.

And we would likewise think it is now in a newborn’s interest to avoid

torture or even starvation in the near future even though that baby can’t

conceptualize being tortured or not breastfed. So it appears that something

can be in the interest of the infant or fetus even if they are unaware of this.

Thus we have reason to be skeptical of the claims of those philosophers who

maintain that newborns and the unborn lack the interests necessary for a

right to life (Tooley: 1972, 45; Singer: 1993, 171). We believe that they fail

to distinguish something being in an individual’s interest from that

individual taking an interest in something (Regan: 1982, 170). It is in the

fetus and infant’s interest to live on even though they have not taken an

interest (i.e., desires) to live further into the future. Analogously, broccoli is

26

in a kid’s interest but he is not interested in it. Living things have an

interest in healthy development. We can ascribe interests to potential

persons, even mindless ones. It is in their interest to live on and develop in

a healthy fashion by which they will flourish. We believe that even a plant

has a nonmetaphorical interest in sun and nutrient rich soil.19 But since its

future isn’t valuable, the interests have little or no moral weight.

More specifically, we contend the morally relevant sense of potential

is determined by what is healthy development or proper functioning for

things of that kind in their design environment. Mindless beings only have

interests in healthy development or proper functioning and the flourishing

that involves. So a fetus has an interest in growing a healthy proper

functioning brain but no interest then in becoming a baseball player even if

it will later be an adolescent dreaming of World Series fame. It isn’t enough

for a mindless entity to be identical to a later being to presently have an

interest in that later being’s welfare. The future good must be in the

mindless being’s interest when it is mindless. And the only basis we can see

for ascribing interests to the mindless is by appealing to the good realized

by their proper functioning, i.e., healthy development for entities of that

nature.

Our claim that healthy development or proper function provides the

morally relevant potential will not be troubled by the standard objections to

19 A car, on the other hand, doesn’t have a nonmetaphorical interest in oil. A well lubricated

car is in the interest of its owner or driver. Cars, unlike plants and fetuses, are not entities

that can flourish and undergo changes in well-being.

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potential being significant. It is frequently claimed that appeals to potential

are susceptible to refutation by reductio for far too many entities have the

potential to become persons. For example, a twin of you could be produced

by cloning any cell of your body so even your skin cells are potential

persons, yet we are under no obligation to further such potential. But this

isn’t a problem for our account. We don’t even have to rely upon the

standard response which is to distinguish the identity preserving potential

of an individual to reach a later stage of itself from the potential of one

entity to bring into existence a distinct (i.e., non-identical) entity.20 It

doesn’t matter even if the skin cell in the cloning case is identity

preserving.21 We can imagine that future cloning is more like pathogenesis

than the technique that produced Dolly. Assume that the skin cell can be

induced to develop into an adult without the removal of the nucleus and its

transplantation into a denucleated egg. Such development isn’t the proper

functioning of a skin cell. So even if cloning is identity preserving, the initial

cell doesn’t have an interest in doing anything other than what healthy skin

20 Identity preserving potential is actually just a necessary condition for moral status. One

reason that this has been overlooked by pro-lifers is that they haven’t considered the

metaphysical possibility of unrestricted composition. There could be objects which will

later possess you as a proper part. See Hershenov (2011) for why pro-lifers don’t have to

recognize that such identity preserving potential provides an earlier interest in future

benefits and harms.

21Though we believe that cloning to date is better described as substantial change since it

involves the removal of the nucleus from one cell which is then placed in a denucleated egg

and the resulting composite is a new entity.

28

cells do and so its potential to become a person is morally irrelevant. We

would say the same if direct nuclear reprogramming was identity

preserving as Neaves and Magill (2009) conjecture.22 The proper function of

such cells was not to initially so develop. Thus it couldn’t be claimed before

they were reconfigured that it was in their interest to develop into persons.

Similarly, if the first four cells of an early embryo were totipotent,23 there

would be no pressure to split the embryo into four people to maximize their

potential as Harris and Devolder (2007) speculate. Since the morally

relevant potential is determined by proper function, what is in the interest

of the first four cells is that they make their contribution to the healthy

development of the embryo of which they are proper parts. Furthermore, if

there are weird Martian environments where Earth oysters could become

persons (Kriegel and Hassoun: 2008), since Earth oysters weren’t designed

to develop that way, they don’t have an interest in such development and

thus are not harmed by it not occurring.

Likewise, if we assume Tooley’s famous kitten injected with a person

producing serum (1972, 60-61) was a mindless embryonic feline in utero,

since it would not be malfunctioning (unhealthy) if it didn’t so develop, it

wouldn’t be wronged if that potential was neutralized. But if we stick to

Tooley’s actual example in which the kitten is conscious but constitutionally

incapable then of understanding anything about the serum with which it has

22 Though we would agree with Condic, Lee and George (2009) that direct nuclear

reprogramming is not identity preserving for the resulting composite is a new substance.

23 See Koch (2006) for some reasons to be skeptical of their totipotency.

29

been injected, we think it still follows that the kitten lacks an interest in

becoming a person. We would argue that its interests are those due to its

proper functioning and whatever it consciously desires. It is not the proper

function of the kitten to so develop into a person thus so it has no interest in

it since it also is not consciously desiring the change.24

Secondly, the appeal to healthy development as the morally relevant

potential renders unnecessary any reliance upon the distinction between

active and passive potential or the equally problematic intrinsic and

extrinsic potential. The appeal to active or intrinsic potential wouldn’t

anyway divide up cases as its proponents want. For example, there is no

active or intrinsic potential in the anencephalic or congenitally retarded

human fetuses but they would have a priority over a healthy kitten to receive

a scarce serum that made personhood possible for them. Furthermore, Lizza

(2011) points out how epigenetic factors make it difficult to speak of

development as due to just the intrinsic or active potential of the DNA. And

as McMahan (2002) argues, our moral intuitions don’t track whether the

fetus’s development is due to intrinsic or extrinsic features. He imagines

dogs that turn out to have the intrinsic potential to be persons if a previously

unknown exhausting regimen of training is enacted. But it seems that we

24 In fact, the change is perhaps not best considered an unqualified enhancement because

some of the kitten’s brain structures would likely have to cease doing what they were

designed to do, i.e., they would malfunction, in order for the mind of the kitten to become

the mind of a person. So the kitten might even have an interest in the serum being

neutralized!

30

don’t have a duty to so treat the dog. McMahan also observes that it isn’t

plausible that a human fetus’s moral status would drop and then return if its

earlier intrinsic potential for personhood was lost but then restored by a

genetic therapy. But if we appeal to healthy development as the morally

relevant potential then the intrinsic or extrinsic source of the development is

irrelevant.

Defenders of abortion have overlooked that the mindless can have

interests in their healthy development. We suspect that the acceptance of

infanticide is based on a similar failure to distinguish between something

being in an individual’s interests and that individual taking an interest in

something. It is in the interest of both fetuses and infants to flourish, they

are benefitted when they do and harmed when they don’t.

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