oxford handbook of bioethics

status is not a matter of controversy do indeed have full moral status and (2) that does not include foetuses within the scope of that explanation. Warren’s primary full moral status principle is what she calls ‘the Agent’s Rights principle’. According to this principle

Moral agents have full and equal basic moral rights, including the rights to life and liberty. (Warren 1997: 156)

A moral agent is ‘an individual who is capable of using reason to discern and follow universal moral laws’. (Warren 1997: 156)

This principle is not controversial. Because it offers only a sufficient, but not a necessary, condition for the possession of full moral status, it cannot be criticized for excluding humans who are not moral agents. Warren defends this principle by appealing to the moral philosophy of Kant and to the Kantian moral philosophies of John Rawls and Alan Gewirth. It is reasonable to assume that such foundations for the Agent’s Rights principle are sufficient to save it from the theoretical difficulties that beset the human life view or Warren’s earlier personhood view. Warren’s more recent view is a genuine improvement over her earlier view.

Warren’s HUMAN RIGHTS Principle

Warren’s Agent’s Rights principle plainly needs supplementation. It does not underwrite the full moral status of young children and the mentally disabled. Because she is well aware of this, Warren adds to her account what she calls ‘the Human Rights principle’. According to this principle:

Within the limits of their own capacities and of [the Agent’s Rights principle], human beings who are capable of sentience but not of moral agency have the same moral rights as do moral agents. (Warren 1997: 164)

Although in philosophy it is customary first to determine just what a claim means and then to ask whether or not it is true, this procedure is not apt for analysis of Warren’s Human Rights principle. Warren first defends the Human Rights principle as it applies to already born humans and then discusses whether or not the principle should be extended to protect foetuses. Adequate appraisal of her defense of her view requires following the path of her argument. It is also worth noting that Warren does not believe that the Human Rights principle is literally true. It entails that 3-year-olds have the liberty rights of moral agents. This is, as Warren realizes, absurd. Warren actually believes that in the case of children ‘their interests carry the same moral weight as do those of other human beings’ (Warren 1997: 164). My appraisal of her defense of the Human Rights principle will take this ‘moral equality of interests’ interpretation for granted.

Because Warren’s defense of the Human Rights principle as it applies to children after birth is not extensive it is possible to quote it in full:

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in reality human beings become moral agents only through a long period of dependence upon human beings who are moral agents already. During this period of dependency we learn language, and all of the other mental and behavioural capacities that make moral agency possible. In Annette Baier’s words, ‘A person is best seen as one who was long enough dependent upon other persons to acquire the essential arts of personhood. Persons essentially are second persons, who grow up with other persons.’

For this reason, it is both impractical and emotionally abhorrent to deny full moral status to sentient human beings who have not yet achieved (or who have irreparably lost) the capacity for moral agency. If we want there to be human beings in the world in the future, and if we want them to have any chance to lead good lives, then we must at least value the lives and well-being of infants and young children. Fortunately, instinct, reason, and culture jointly ensure that most of us regard infants and young children as human beings to whom we can have obligations as binding as those we have to human beings who are moral agents. (Warren 1997: 164 – 5)

Much of Warren’s defense of her Human Rights principle seems quite implausible. Is the dependency of children on moral agents sufficient for treating children as the moral equals of moral agents? House plants are dependent on moral agents. We do not think that this implies that we should treat them as our moral equals. Is the education of children by moral agents a good reason for giving children the same rights as moral agents? Adolescents learn to drive from persons who have the right to drive. It does not follow that such adolescents have the right to drive. Is the emotional abhorrence of rejecting the rights of children a good reason for treating them as if they have the same rights as moral agents? Many people in our society find sexual relations between two males emotionally abhorrent. Surely that is not a good reason for being opposed to gay rights. Do instinct and culture constitute solid grounds for the truth of the Human Rights principle? If they do, then the instinct and culture of the Christian conservative opponent of abortion rights constitute solid grounds for outlawing women’s right to choose. No doubt Warren would not welcome this conclusion. Thus many of the considerations to which Warren alludes do not support the truth of her Human Rights principle.

I suspect (although I am not sure) that Warren would choose to go to the bank with something like the following argument in defense of her Human Rights principle: It is necessary to award full rights to those humans who will become moral agents or who are mentally disabled in order to respect the rights of the moral agents those humans will become or once were. This is an interesting argument that deserves some analysis. I shall confine my attention to children.

It is worth noting that, strictly speaking, this argument reduces the Human Rights principle to a corollary of the Agent’s Rights principle. We are asked to respect the rights of (grant the rights to?) children in order to respect the rights of the moral agents those children will become. So the question becomes: Is Warren’s Agent’s Rights principle sufficient to underwrite our obligations to children? Warren says little about this. However, it is hard to believe that we should treat any child as having a full right to life because the moral agent the child will become has a full

right to life. After all, if the child is killed, there is no agent the child will become, and therefore killing the child does not violate the rights of that agent. On Warren’s account killing such a child would be a victimless crime. Furthermore, it is certainly reasonable to think that some children are such poor prospects for becoming productive members of society that, if they have no right to life as children, it would not be wrong to kill them. The best argument in defense of Warren’s Human Rights corollary is implausible.

This failure is fatal to Warren’s theory. One typical problem for pro-choice moral status theories, as we have already seen, is that they are too narrow. They make too little killing wrong. In this respect Warren’s (1997) theory is no improvement over her earlier theory and over Tooley’s desire theory. Indeed, it is a step backward. Warren’s (1979) theory could not account for the wrongfulness of infanticide and so she had to offer weak arguments against killing little babies. Warren’s (1997) theory, by finding the locus of full moral status only in the nature of moral agents, offers us a theory of moral status that seems far more theoretically defensible than her (1979) view. The price that she pays for this advantage is that she has trouble accounting for the wrongness of killing not only infants, but any young children.

The inadequacy of Warren’s theory should be judged in the context of the alternatives to it. On the future of value account, killing young children is wrong because it deprives them of the goods of their future. Thus, killing young children is wrong for the same reason that killing adults is wrong. No special explanation is needed to deal with the wrong of killing young children. Warren’s account of the wrongness of killing must be judged a failure.

The HUMAN RIGHTS Principle and Non-Sentient Foetuses

There are, however, additional problems with Warren’s view. Let us suppose that the argument of the preceding section is entirely wrong and that the Human Rights principle has been justified. The foetuses in which we are interested are, after all, human. Accordingly, there seems to be a reason for extending the Human Rights principle to include the unborn. Warren has arguments for rejecting this extension. Her arguments for not extending the Human Rights principle to foetuses before they are sentient are different from her arguments for not extending the Human Rights principle to foetuses after they are sentient.

Let us consider first her arguments for not extending the Human Rights principle to foetuses before they become sentient. Warren offers two arguments for such a restriction, a direct argument and a reductio argument. Her direct argument for the exclusion of non-sentient foetuses is that ‘prior to the initial occurrence of conscious experience, there is no being that suffers and enjoys, and thus has needs and interests that matter to it’ (Warren 1997: 204). Presumably Warren believes that because non-sentient foetuses have no interests and needs, they fall, like rocks, outside the scope of serious moral concern.

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Warren’s view that each being that lacks interests and needs falls outside the scope of serious moral concern certainly seems right. What Warren requires for her argument is the claim that if an individual has no interests and needs that matter to it, then she has no interests and needs. Is this true? It all depends upon what counts as mattering. On the one hand, if something can matter to an individual only if she is conscious of it, then no non-sentient foetus can have interests and needs that matter to it. However, on this interpretation of the ‘mattering’ claim we are not justified in inferring that no non-sentient foetus has interests and needs. Plainly there can be things that a young child needs or that are in her best interest that do not matter to her at all on this interpretation of ‘mattering’. On the other hand, if something can matter to an individual whether or not she is conscious of it, then Warren’s argument fails to establish that non-sentient foetuses must fall outside the scope of serious moral concern. This difficulty with Warren’s view can be seen less abstractly if one considers persons who have been anaesthetized for surgery. In one clear sense nothing matters to them; in another sense, many things matter to them. They certainly have interests and needs.

Warren seems to be aware of this difficulty. She says that persons who are unconscious ‘have not lost the capacity for sentience; they are simply not exercising it at present, or not at present able to exercise it’. Surely it is true that in one clear sense of ‘capacity’, non-sentient foetuses lack the capacity for sentience and anaesthetized persons have the capacity for sentience. The problem is that it does not follow from this that non-sentient foetuses lack interests and needs. Neither does it follow that, in one clear sense of ‘mattering’, nothing matters either to non-sentient foetuses or to anaesthetized persons. Accordingly, the difficulty with Warren’s direct argument for excluding presentient foetuses from the Human Rights principle remains.

Warren also claims that ‘that the potential of the presentient foetus to become a human being is enough to give it full moral status is subject to a reductio argument’. Her reductio is that, if this were so, then an unfertilized ovum (hereafter UFO) would also have full moral status because of its potential to become a human being. This, of course, is absurd (Warren 1997: 206).

One problem with this reductio argument is that it is directed against the wrong target. Those who are anti-choice typically do not hold that early abortions are wrong because presentient foetuses are potential human beings. They claim that foetuses before they become sentient are human beings, just very young and undeveloped and non-sentient ones. Nevertheless, because the human life account is unsound, the claim that a foetus before it becomes sentient is a human being does not imply that such a foetus has full moral status. The argument that it does have full moral status must be a potentiality argument of some kind. This leaves open the possibility that Warren’s argument against attributing moral status on the basis of potentiality may have some force.

The claim that a foetus prior to sentience has a future of value is a claim about that foetus’s potential. Is this claim open to the reductio that, if it were true, then UFOs would have a future of value? According to the future of value view, that killing you would deprive you of your future of value makes it wrong to kill you. An individual now has that sort of future of value just in case a later phase of that same individual would have a future it would value at later times and it has a future like ours. Accordingly, that earlier phase of that individual and those later phases of that individual must be phases of the same individual. That a UFO does not meet this condition can be shown by the following argument. Suppose the UFO that was my precursor was the same individual as I. If this were so, then there is just as good reason to hold that the sperm that was my precursor was the same individual as I. Since identity is transitive, it follows that the UFO that was my precursor and the sperm that was my precursor were the same individual. This is false. Therefore, the supposition is false. Accordingly, Warren’s reductio argument is unsound (Stone 1987).

If one believes that the issue is whether a foetus prior to sentience is a potential human being, this point might be missed. According to Warren: ‘In any case, the identity debate seems irrelevant to whether ova or zygotes are potential human beings. If an entity may develop into a human being, then surely it is a potential human being — even if the developmental process would alter it so greatly that we might reasonably wonder whether it has remained the selfsame entity’ (Warren 1997: 207).

The reason the identity debate is entirely relevant is because the argument Warren needs is not about whether an entity can develop into a human being, but rather about whether an individual has a future of value. Thus, both Warren’s direct argument and her reductio argument for excluding non-sentient foetuses from the scope of the Human Rights principle are flawed.

The HUMAN RIGHTS Principle and Sentient Foetuses

The analysis in the previous section shows that the sentience restriction on the Human Rights principle is unjustified. One might be tempted to conclude that, as a consequence, Warren’s Human Rights principle commits her to an anti-choice view through and through. Notice, again, her Human Rights principle:

Within the limits of their own capacities and of [the Agent’s Rights principle], human beings who are capable of sentience but not of moral agency have the same moral rights as do moral agents. (Warren 1997: 164)

If the sentience condition is removed, then the Human Rights principle might be thought to entail that, because foetuses are human beings, they have the same rights as moral agents. Moral agents have the right to life. Therefore, foetuses have the right to life. The claim that foetuses have the right to life implies (given some

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defensible assumptions) that killing them is wrong. So apparently Warren’s Human Rights principle corrected for her error concerning non-sentient foetuses supports an anti-choice view. Is this correct?

Warren rejects the above line of reasoning. According to her the Agent’s Rights principle limits the Human Rights principle. She says:

Unlike presentient foetuses, women are moral agents, with the rights to life, liberty, and the responsible exercise of moral agency. These rights are undermined when women are denied the freedom to decide whether and when to have children, and how many of them to have. (Warren 1997: 210)

Thus:

Birth . . . ends the infant’s complete and necessary dependence upon the woman’s body, thus removing the potential conflict between her moral rights and the infant’s rights under the Human Rights principle, and bringing the latter principle fully into play for the first time. For these reasons, birth is still the most appropriate point at which to begin fully to enforce the moral rights that the Human Rights principle accords to sentient human beings. (Warren 1997: 218)

Therefore, even with the sentience condition removed, Warren’s argument, if sound, would justify abortion at any time during pregnancy.

Is Warren’s argument sound? Warren argues that foetuses don’t have the right to life because, if they did, their right to life would conflict with the liberty rights of moral agents. The trouble with this view is that virtually no one has thought that liberty rights have such a broad scope that they include the liberty right to kill other human beings. Indeed, even libertarians believe that a moral agent’s liberty rights are limited by the rights of other human beings not to be harmed. But if this is so, then there could be no conflict between a moral agent’s liberty rights and the human rights of foetuses. Hence, Warren’s argument fails.

Warren’s argument won’t do for another reason. The claim that the liberty rights of moral agents always trump the alleged rights of humans who are not yet moral agents is incompatible with parenting as we know it. This is the deep truth behind the remark attributed to the rabbi who claimed that life begins not at conception, and not at birth, but when the kids leave home and the dog dies. Warren is fond of claiming that while, one is pregnant, one is not free to hand off one’s child to another, but after birth, it is possible for someone else to raise it. However, social attitudes being what they are, we are not free to hand off our children after birth. There are strong reasons having to do with social stability why this is so.

Accordingly, we may conclude that although Warren’s updated (1997) personhood defense of abortion choice is more elaborate than her earlier account, it is even less successful. This is because her view does not adequately meet the challenge that anti-choice moral status views must face. She has failed to show that her account of moral status is sufficiently broad to account for the wrongness of killing in those cases in which there is a consensus that it is wrong. Worse, even if we

suppose (falsely) that she had shown that her view is not too narrow, she would not have shown that either non-sentient foetuses or sentient foetuses lack full moral status. Thus, her account would fail to support the abortion choice position that she plainly wishes to defend. Her updated personhood view is doubly unjustified.

DAV I D BO ONI N ’S IMPROVE D DESI RE

ACCOUNT

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Michael Tooley’s desire based abortion choice view has been updated by David Boonin. Boonin has recently developed a sophisticated version of a desire account of the wrongness of killing that, he claims, (1) deals in a satisfactory way with the difficulties to which Tooley’s (1972) desire account is subject and (2) is superior to the future of value account (Boonin 2003). Boonin calls the desire account a present desire account. He characterizes the future of value account as a present or future desire account, as follows:

If an individual P has a future-like-ours F and if either (a) P now desires that F be preserved, or (b) P will later desire to continue having the experiences contained in F (if P is not killed), then P is an individual with the same right to life as you or I. (Boonin 2003: 63)

Boonin’s present desire account drops clause (b) from the antecedent of the above conditional thus:

If an individual P has a future-like-ours and if P now desires that F be preserved, then P is an individual with the same right to life as you or I. (Boonin 2003: 64)

Plainly the present desire account allows for abortion choice (unless there is another sufficient condition for having the same right to life as you or I), while the present or future desire account does not.

Boonin proposes two strategies for dealing with Tooley’s apparent counterexamples to the present desire account. Consider, first, the temporarily comatose adult whom we believe it is wrong to kill, but who, because of lack of awareness, not only does not desire to continue to exist, but is incapable of desiring to continue to exist. Boonin argues that, although such an adult lacks an occurrent desire to live, she continues (under ordinary circumstances) to have a dispositional desire to continue to live. He goes on to argue for the continued existence of beliefs and desires while one is comatose on the grounds that such beliefs and desires do not have to be reacquired when one becomes conscious. Furthermore, it is reasonable to believe that a woman desires that her husband not commit adultery even when she is thinking of an issue associated with her profession. Accordingly, we have good reasons for accepting the reality of dispositional desires. Boonin’s account of and defense of a dispositional desire strategy for dealing with the alleged temporarily

of the wrongness of killing ‘enables us to account for the prima facie wrongness of killing by understanding killing as one instance of a more general category of acts that are prima facie wrong: acts that fail to respect the desires of others’ (Boonin 2003: 74). The future of value account, by contrast, makes the wrongness of killing the suicidal ‘an anomaly’ (Boonin 2003: 76).

There are reasons for thinking that neither of Boonin’s claims is true. Consider the second. Let us, following Boonin, discuss the case of Hans, who ‘has been dumped by his girlfriend and has plunged into a deep depression. He can think about nothing else and has no desire to go on living’ (Boonin 2003: 70). The future of value account makes killing Hans wrong for the same reason it is wrong to kill almost all other human beings. To kill Hans is to make him worse off than he otherwise would have been. To make him worse off than he otherwise would have been is to harm him. To harm him greatly is prima facie wrong. Boonin’s claim that the future of value account makes the wrongness of killing the suicidal anomalous is plainly false.

Now consider Boonin’s first claim. Boonin seems to be committed to the view that an account of wronging others in terms of failing to respect their desires is salient. There is something to be said for such a view. Of course, it is presumptively wrong to fail to respect the desires of others. The desires we should respect are the actual desires of others. In the case of Hans, Boonin holds that we should not respect his actual desires. Therefore, Boonin’s account of the wrongness of killing Hans is anomalous with respect to the actual desire account of wrongness that meets his test of salience. Boonin has the matter of anomalies and the contrast between his present desire view and the future of value view exactly backwards.

Worse is to come. According to Boonin it is wrong to kill Hans because killing him fails to respect his ideal desires. A nice feature of a present actual desire view is that it is not difficult to determine what the actual desires of others are. One just asks them. Ideal desires are harder, because they are hypothetical. We cannot determine what they are by asking the relevant other. How then does one determine their content?

On this score Boonin is not especially helpful. He says, ‘I am no more prepared to offer a full-blown theory of ideal desires than I am to offer a full-blown theory of dispositional desires. But again I do not believe that anything like this is necessary’ (Boonin 2003: 78). Boonin justifies this lack of an account of the central notion in his theory of the wrongness of killing by noting that it is as difficult to determine that Hans would have a future of value as it is to determine what Hans’s ideal desire concerning his future would be (Boonin 2003: 78).

It is not, of course, difficult to have good reasons for believing that certain persons who are suicidal have futures of value. Such persons are like other persons who have been suicidal and who have been treated with psychotropic drugs or with psychotherapy, and whose lives have improved. Psychiatrists have a great deal of data concerning such persons. To the extent that they are committed to