When does personhood begin? Does it begin at conception? At birth? Sometime in between (or even later?) How can we even decide such a question?
In a previous age, the question of when legal personhood begins would have been obvious: birth. However it seems today as if this issue is mired in all manner of contradictory claims and obfuscation, particularly by the religious right (who want to outlaw abortion, by any means) but also by clearer-thinking intellectuals, who cannot seem to sort through the many facts involved in this debate to uncover the most fundamental and salient facts to consider.
Before we can answer the question, “Who has rights, and why?” we must first remind ourselves what rights actually are, and why men need and possesses them. No thinker has better characterized rights than Ayn Rand:
A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)
The concept of a “right” pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.
Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.
The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.
Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.
“Man’s Rights,” _The Virtue of Selfishness_, 93
(This page has an excellent collection of quotes and passages on rights from Rand’s works.)
Rights arise due to man’s need to act in a social context in the face of possible conflicts with the actions of others. The concept of rights doesn’t even exist on a desert island. Contrast this with the condition of a fetus. A fetus is an entity gestating entirely within the body of its mother. It undertakes no meaningful actions. It faces no alternatives. It makes no choices. Every condition that gives rise to man’s need of rights as an independent being do not obtain.
Once a fetus is delivered, it becomes an independent living entity, that immediately has to undertake action to maintain its survival. It starts breathing. It begins to move meaningfully. It signals comfort and discomfort. It begins to feed voluntarily. It is now in a social context with other human beings. In short, it has become a person.
Many bristle at the distinction of being born as conferring personhood. They typically point to innumerable biological factors such as a beating heart, a nervous system, and so on, which the fetus possessed for many weeks prior to being born. Many simply claim that since the fetus began life at conception, it should be that point at which we ascribe rights to it. “Life begins at conception!”
But the fact remains that while the fetus is gestating inside a woman, it is a part of her biology, a part of her body. There is no right more inviolable than the right to one’s own body. An existing person absolutely has to take priority legally over a potential person. A person’s right to life most intimately includes the right to exclusive control over their own body.
One distinction that is rarely made is that there are actually two issues here, not one. There is the question of when a person acquires rights, and then there is the question of the morality and legality of abortion.
Abortion is a moral issue, not a legal issue per se. The fact that many people view the termination of a pregnancy as immoral leads them to want to prohibit others from doing it. The problem, is that proper law must be based on the protection of individual rights, not the enforcement of morality. Those who demand criminalization of abortion are declaring that a woman’s womb and life belong to the state. “Your practice will always become your theory.” In fact we see this across a range of issues with conservatives, from drug prohibition, to prostitution, to choice of sexual partners, etc. Denying absolute sovereignty to individuals based on moral concerns (abortion included) results in a vast expansion of the state, and laws that have profoundly detrimental net consequences, such as higher (not lower) addiction rates, huge violent criminal organizations, prostitution controlled by abusive thugs instead of benign brothels, the destruction of individual lives, and lack of moral high ground when confronting regimes that execute or imprison gay people, etc.
Many try to use measures of fetal viability as a standard of when we should consider a fetus a person. Some cite the existence of a heartbeat. Others (including Objectivist philosopher Leonard Peikoff) place at a minimum (without necessarily agreeing the point) the existence of a functioning nervous system, although what that actual comprises would be difficult to define. Many say that if a fetus could live outside the womb, then it must be considered a person.
None of these criteria recognize the crucial distinction between being an entirely contained part of a woman’s biology, and being an independent entity. None of the pre-delivery criteria could possibly be satisfactory, and many of them are highly dependent on what is “state of the art” at any point in time. One could easily conceive of near-future technology that could reproduce much of a woman’s gestational physiology, which would make a fetus “viable” almost at conception. The nervous system of a fetus starts development in the 4th week, and undergoes a variety of stages of development thereafter. How can one establish any particular level of development as definitive? When it can move? When it can feel pain? How can we even arbitrate such scientific debates?
The argument that “life begins at conception” is one of those irrefutable arguments that are completely irrelevant. What that argument does, is bake in an assumption that the biological fact of germination somehow wipes out ALL other facts in the context, such as that the resulting embryo and fetus is inside an actually existing woman’s body, and that it does not meet any of the philosophic conditions necessary to be an independent sentient entity acting in a social context and in need of rights.
One of the historical facts that clouds debate on the subject of personhood is that abortion has been illegal on moral grounds in many societies and throughout much of history. But the fact that abortion has often been illegal has been based on the moral argument that a fetus is an intrinsic good, or from a religious viewpoint, has a soul, and therefore that abortion is murder. But note how this context is different from the question of legal personhood. There are so many complicating factors in this issue… Many point out that a fetus is essentially helpless at birth, and requires constant attention and care. How is this different from moments before in the womb? How can the context of “social interaction” make a difference at this point?
Let’s try to address some of these questions, with the firm context that in Juristocracy, personhood begins at birth, and a woman has an unrestricted legal right to control her own body (including the fetus) until that point.
Abortion foes like to make the most hay about late-term abortions. However these comprise a tiny fraction of all abortions. According to the Guttmacher Institute1 88.8% of abortions are done in the first trimester, and fewer than 1.2% in the third trimester. The problem with trying to find a “middle ground” is that the foes of abortion will never accept ANY middle ground. To them, all the successive measures to restrict abortion are merely waypoints to the goal of criminalizing it entirely. Note I say “criminalizing” not “eliminating”—abortions will continue to be performed, only they will be unsafe and unsupervised, resulting in vastly more deaths and maimings of women.
Of course the fact that an activity might continue if criminalized is not in and of itself an argument against criminalizing it—that should solely be based on whether the activity violates rights or not. The point here though, is that opponents of abortion continuously declare as their goal to eliminate abortion, but as a factual matter, legal prohibition of abortion does little to reduce its prevalence. “On average, the incidence of abortion is similar in countries with restrictive abortion laws and those with more liberal access to abortion.”2 This further emphasizes that the foes of abortion don’t actually care much about outcomes, as long as they have morally signaled their contempt for the practice. Moral outrage is not a basis for rational law.
There is a corner case: in a very small minority of late-term abortions, a living fetus is actually delivered. Having a clear, unequivocal definition of personhood makes this case relatively easy to adjudicate. Unfortunately (for the woman attempting the abortion) this fetus is now a person, and needs to be protected as such. Doctors would be under legal obligation to do no further harm to the child or attempt to kill it. Whether they would be compelled to undertake extraordinary measures to attempt to keep it alive is a somewhat different question, since no one can be legally forced to be the slave of another, and compelling extraordinary measures that might be very expensive of time and money of the healthcare staff would be unfair. This is a topic for another article (and would include things like end-of-life care, physical death vs. brain death, who is responsible for what when a person becomes completely incapacitated, etc.)
The rancorous issue of abortion has demonstrated that there will likely be little movement in people’s views, no matter how many volumes of arguments are made. Religious people in particular are (in my experience) extremely unlikely to accede anything in this debate. So what is the relationship between a person’s views on abortion rights and personhood, and their eligibility for citizenship in a Juristocracy?
To emphasize again, freedom of conscience and expression are fundamental rights in a Juristocracy. Therefore, as long as a person limits themselves to expression (not, for example, coercion or violence against abortion clinics or their workers or clients) then they may not be interfered. And as long as a person is merely morally opposed to abortion, for whatever reason or on whatever basis, they are not thereby disqualified from citizenship. But any attempt by a citizen to institute a legal prohibition against a woman’s right to her own body, would be a treasonous action, and subject the person to liability of loss of citizenship. As I repeat again and again, Juristocracy is completely consistent; there is no such thing as a right to violate rights. An existing woman’s body is her own to control; a fetus only becomes a person at birth; so any attempt to criminalize abortion or somehow ascribe “rights” to a fetus are measures that violate actually existing people’s rights. This is not tolerated in Juristocracy.
Those who are opposed to abortion and would like to reduce its incidence have many options of action available to them. And in fact, if that subset of people invested as much time and money in reducing abortions as they do trying to criminalize it, they might actually save many abortions from happening. But again, as I’ve pointed out, their goal is not actually to eliminate abortions, it is to criminalize and stigmatize women and doctors who perform the procedure. So they don’t actually care about fetuses, they simply want to posture as morally superior.
There can be no compromise on this issue. Look at what happened last time the country compromised (during its founding) on questions of rights related to slavery, taxation, the primacy of the individual vs the primacy of the state, and so on. It has ended in disaster. No system that starts with contradictions can survive–it will eventually be destroyed by the incorrect elements, as has happened to America. (And as a practical matter, conservatives have probably done more than liberals in the last 100 years to all but eliminate freedom. So they are useless as coalition partners, regardless the blather they issue about economic freedom–at their root, they are actually only motivated by their moral agenda, as demonstrated by factual history. Conservatives will not be a significant factor in the fight for freedom and Juristocracy, and their views need not be accommodated.)
One valid legal issue that arises is the legal status of a fetus if a woman is subjected to assault. There are two important facts. First, since the fetus is not a legal person, killing it cannot be considered the crime of murder (so an appropriate term could be “feticide” but not “homicide” or “fetal homicide”.) But just as importantly, a fetus to a woman who wants it, is an immense value. Therefore, it is entirely proper for there to be additional subcategories of “assault” relating to death or harm to a fetus. There would be subcategories related to intent and negligence, and considerations based on the extent of harm.
But once a fetus does become a person, what are the responsibilities of the parents, and how do we explain these in terms of the rights of all involved?
Human infants cannot survive on their own–they require constant attention when very young, and custodial care for a number of years thereafter. Children are people and have rights. But since they cannot fully exercise their rights to the end of their survival when very young, the parents who brought the person into existence are logically responsible, both morally and legally, for acting as a custodian of the child’s rights, to be exercised on its behalf and interests, until such time as it can exercise them fully itself. So this does entail a legal responsibility for parents to provide “necessities of life” to their children, or if unable to do so themselves, find someone else who can. There is some room for debate on what constitutes a minimum standard here, as well as a related question of what would constitute child abuse. There are certainly insanities here in our current society, such as allowing kids to walk to school or parks as being “abuse”, an absurdity only made possible by the complete intellectual psychotic breakdown of thought in public policy today. Leonard Peikoff offered a reasonable standard in one of his lectures, insofar as no deprivation which cannot be reasonably addressed after reaching majority can be considered abuse. So under this standard, one could argue that locking a kid in a closet and not letting him learn to speak prior to the language plastic period ending WOULD be abusive and negligent, but merely providing a basic education and not sending him to high school (for example) would not be negligence. And once again, it must be emphasized again and again, the government is concerned with rights, not morality. Just as there are many actions that adults can take that are immoral and detestable, but not illegal, so too can parents be better or worse at it, and their efforts considered exemplary or contemptible. But if you actually value liberty, your proof is not supporting the freedom of people doing exactly the things you approve, it is solely in your supporting the freedom of those with whom you disagree or disapprove.
Your practice will always become your theory. No group has proven this more thoroughly than conservatives, whose actual practice is almost entirely dominated by concerns with the moral behavior of others, and of making every immorality in their teachings become a crime. And now, as a group, they are indistinguishable from liberals. Conservatives are as completely statist as the most left-wing liberal, and accede every liberal attack upon individual freedom, typically only bickering over the magnitude and rate of the violations.
Like all its other aspects, the view of Juristocracy on abortion rights and personhood is fully consistent, avoids legal conundrums that would arise if a fetus and its mother were both considered legal persons, is practical in reality, and fully supports the rights of women (and men) to their own bodies.