When Does a Fetus Have Rights?
What sort of rights should a fetus or embryo have? This isn’t the only question in debates about abortion, but it’s an important one.
The central claim of anti-abortion activists is that destroying a fetus or embryo is wrong because it’s killing a being that has a right to live. And part of the case for abortion access is the opposite claim, that a fetus or embryo is not yet a being with rights. This denial is only part of the case for abortion rights: there’s also the claim that even if a fetus or embryo has rights, the pregnant person’s right to bodily autonomy should take precedence, and the claim that banning abortion is harmful to women’s health, safety, and equality. But it is nevertheless worth exploring the question of what rights a fetus or embryo should have – the question of its ‘moral status’.
The question of moral status is difficult because it depends on multiple other questions, spanning different disciplines: ethics, philosophy of mind, and neuroscience. In this article I’ll try to tease apart five of those questions, and get a sense of what some plausible answers might be:
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What features give a being moral status? This is a question in philosophical ethics. Among the popular answers, the most significant for the abortion debate may be sentience.
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What is sentience? This is a question in philosophy of mind. We should distinguish physical detection of a stimulus, the conscious experience it gives rise to, and cognitive awareness of that experience.
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What makes us sentient? What brain structures enable conscious experiences? This is a question at the intersection of philosophy with neuroscience, and while there’s still uncertainty, most evidence points to the cerebral cortex.
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What brain structures do embryos and fetuses have, at various points during pregnancy? This is a question in developmental neuroscience, where the preponderance of evidence is that the cerebral cortex forms quite late in pregnancy.
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Finally, how much does potential matter? When something isn’t yet sentient, how much should it matter if it could become sentient in the future? This is another question in ethics, though it connects with philosophy of mind through the question of personal identity.
None of these questions are easy, but some answers are likely to have more widespread appeal than others. After reviewing these five questions, I’ll suggest that combining the most appealing answers supports thinking that moral status appears quite late in pregnancy, well after the overwhelming majority of abortions happen.
Question 1: What features give a being moral status?
This is a big question, so we can’t survey all the options, but three common answers are relevant here:
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First, people sometimes appeal to a cluster of sophisticated mental capacities – things like being able to talk, to reason, to think about yourself as yourself, to consider things from other people’s perspectives, etc. These capacities all seem to be distinctively human: no other species shows clear evidence of any of them. Call this ‘personhood’.
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Second, people sometimes appeal to something simpler – the capacity for various subjective experiences, like emotions, perceptions, desires, pleasure and suffering, and so on. These don’t seem to be distinctively human: many animals, like cats and dogs and birds, probably have similar experiences, even though they can’t reason and reflect the way we can. Call this ‘sentience’.
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Third, people sometimes appeal to the fact of being human itself: being biologically a member of the species Homo sapiens. This is not a matter of any particular capacities: if something comes from humans, it’s human at a genetic level. Call this ‘humanness’.
It’s pretty clear that a fetus or embryo isn’t a person, but is human. If either personhood or humanness were the exclusive basis for moral status, we would have a straightforward answer.
Most ethical theories will agree that personhood matters morally: it lets someone be part of a moral community, reciprocally recognising the rights of others and making autonomous choices that others should respect. We usually think adults should have rights (e.g. to vote) that small children don’t, because adults are persons, and children are not (at least not fully). But it’s rare to think that only personhood matters: that even if animals, say, can suffer, can care about things, can have strong desires and experience happiness and so on, all of that is strictly irrelevant to morality because they’re not persons. Indeed, the philosophical theory most associated with this animal-excluding stance is Kantian ethics, and one of the most prominent living Kantians, Christine Korsgaard, has put a lot of work into arguing that actually animals should be included after all.
What about the humanness view – that being biologically human, in itself, gives you moral status? Critics of abortion often seem to appeal to this: abortion ‘destroys a human life’. The problem is that this view, once stated clearly, is very hard to motivate. Once we carefully distinguish ‘being human’ from everything that makes us care about humans – from how humans can love, learn, feel curiosity and compassion, etc. – it’s unclear why your DNA should decide your moral status. Moreover, if someone is a person but not human – like the elves, androids, or intelligent aliens who abound in fiction, why should they lose moral status because they belong to another species?
Because the personhood-only view seems extreme, and the humanness view seems theoretically weak, a lot of philosophers are attracted to what is sometimes called a “sentientist” view: moral status depends on sentience. Personhood might confer the additional rights we think adults have but children lack, but sentience is all that’s needed to have some sort of basic rights, like the right to live or to be protected from suffering. So we should ask: setting aside that a fetus is human, but is not a person, is it sentient?
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Question 2: What is sentience?
What exactly do we mean by ‘sentience’? There are a lot of near-synonyms that people like to use here: experience, consciousness, awareness. The basic idea is that if a being is sentient, then it is like something to be that being: in addition to the objective description we can give of it from the outside, there’s a subjective description of how things seem to the being itself, from its own perspective.
Certain sorts of experience may matter more than others, like pleasure and suffering (that is, experiences that feel good or bad to the creature itself). One especially prominent form of suffering is physical pain, which has often been the focus of discussion.
But even zeroing in on physical pain, it’s important to be clear about what we mean. On the one hand, the conscious experience of pain should be distinguished from mere nociception, the physical detection of damage to the body. For example, if you roll into a sleeping position that risks damaging your joints, your nerves detect the strain and transmit signals to the brain that make you shift position. If you were awake, this might be accompanied by a conscious experience of pain, but since you’re not, the ‘pain system’ seems to operate unconsciously.
On the other hand, we shouldn’t assume that conscious pain must mean something like knowing that you’re in pain, understanding it as pain. That sort of self-consciousness seems to be more advanced than consciousness itself: people tend to think that many animals are conscious but not self-conscious. A dog who’s in pain likely can’t think to itself “this is a conscious experience of pain”, even if it can still have a conscious experience of pain.
Question 3: What makes us sentient?
What enables conscious experience? Unfortunately, this is a profoundly hard problem – philosopher David Chalmers famously termed it “the Hard Problem”. On the one hand, there’s your physical brain chemistry; on the other, there’s what it feels like to be you. They seem completely different, so how does one give rise to the other?
Now you might say: it doesn’t! The brain has nothing to do with it: conscious experience happens in the soul, an immaterial part of the person. Because it’s immaterial, we can’t detect it with any scientific device, and so we don’t know where it comes from, or where it goes after death. The problem with this sort of view (often called ‘substance dualism’ because it distinguishes two substances: a material body and an immaterial soul) is that it becomes impossible to know which beings are sentient. We can observe their behavior, their bodies, and their brains, but without a soul that means nothing, and we can’t detect the soul. Maybe the soul becomes associated with the body at conception, or at birth, or at implantation, or at quickening; maybe a soul appears every time a new spermatozoon forms in someone’s testes. We can’t base laws on something we can’t detect.
What we can detect is that electrical activity in specific brain regions is very consistently correlated with certain sorts of experience. To stick with the example of pain, we know that pain consistently correlates with activity in certain parts (the insula and anterior cingulate) of the cerebral cortex (the wrinkly outer layer of the brain). This activity is not isolated, but closely connected with activity in the thalamus (a sort of central routing hub between the cortex and the brain stem). This doesn’t remove the Hard Problem (why does that brain activity correlate with conscious pain?) but it’s good evidence for some sort of close connection.
So pain somehow involves connections between the thalamus and certain regions of the cortex: what about conscious experience more broadly? That’s harder to say: some theories assign importance to the integration of many cortical areas into a ‘global workspace’, while others scale down the minimal requirements for sentience to not include the cortex at all. This question might matter a lot for animal sentience: the former sort of view might make it hard to find definite cases of consciousness in animals, while the latter makes it likely that even a broad range of invertebrates, like insects, are conscious. Recently, increasing attention has turned to how far these different theories can be empirically tested, but for now the uncertainty remains.
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Question 4: What brain structures do embryos and fetuses have?
Based on what we know about the neuroscience of pain, what should we make of “fetal pain” laws? These typically seek to restrict abortions after 20 weeks, based on supposed scientific evidence that fetuses at this point can feel pain. However, they generally do not distinguish between pain as a conscious experience and mere nociception: a 20-week fetus has ‘pain sensors’ in their skin and other tissues, but without a proper connection to the right brain areas that won’t let them feel anything (just like a human eyeball isn’t enough for visual experience, without a connection to visual cortex). As philosopher L. Syd M. Johnson notes:
“It’s unclear to what extent these laws are based on actual confusion about the difference between nociception and [conscious pain] or are politically capitalizing on that confusion to restrict access to abortion for other reasons.”
Note that fetal nociception does matter for a different question: the value of providing anesthesia during surgery on a fetus. Even unconscious nociception can produce lots of bodily reactions, like elevated heart rate and the release of stress hormones. This could have knock-on effects on the developing brain, which matters if the fetus is expected to become a person who has to live with those knock-on effects. But this doesn’t make the automatic reactions morally important now.
So when does a fetus develop the brain structures involved in pain experience – the thalamus, insular and cingulate cortex, and stable feedback between them? Probably not until around 30 weeks, in the early part of the 3rd trimester. As a result, the most common position among developmental neuroscientists is that fetal pain is impossible until that late point. And while pain isn’t the only important sort of consciousness, it’s natural to think that human consciousness in general will likewise require maturation of thalamocortical connections.
This common position could be wrong, in either direction. It might be that as well as the specific cortical areas that make an experience into pain, consciousness requires a level of psychological development and organization that only arises from post-birth interactions; alternatively, it might be that even quite basic neural structures, below the cortex, can support a form of consciousness. Psychologist Stuart Derbyshire argued for the first position (no consciousness until birth) in a 2008 paper, but has argued in a more recent paper that the second position (conscious before 30 weeks) can’t be ruled out. New discoveries may still force us to revise our views. But at present, the consensus position is still that sentience probably begins around 30 weeks.
Question 5: How much does potential matter?
Science might tell us which brain structures a fetus has now, and which it could develop in the future. But it can’t tell us how much that second fact matters. For instance, if we’re confident that a first-trimester fetus isn’t sentient, but has the potential to become sentient, does that give it a right to life now?
At one extreme, it’s not very plausible to say that potential never matters: the fact that a small child has the potential to become an adult is important to how we should relate to them. But it’s equally implausible to say that anything involved in the process that leads up to a sentient person existing should have the rights of a person – then everyone’s gonads are full of potential people, who tragically die on a regular basis.
In everyday life, what counts as ‘our potential’ is very context-sensitive, depending on how quickly, easily, or reliably we can actualise a given possibility, or how much we would depend on outside assistance. We might try assigning different degrees of moral status to the fetus at different stages, based on how close it is to becoming sentient (at 26 weeks it’s right on the edge, but at 10 weeks it’s more distant, etc). We might even extend this back beyond conception: maybe an unfertilised human egg, which has the potential to be fertilized and grow into a person, should have some fractional degree of moral status. But that seems absurd: why?
People will often say that the unfertilized egg is not the same entity as the child it grows into, whereas the fertilized egg is. But here we have to engage with the philosophical problem of personal identity: what makes us the same individual across time? Many years ago, there was an embryo in my mother’s womb: was that me, in a smaller and simpler form, or was that merely part of the process that led up to me existing? Why or why not? How do we draw the boundaries of ‘me’? Broadly speaking, some answers focus on the continuity of bodily life, and others on the continuity of mental life. On the former sort of view, that embryo was me, but on the latter sort, it was just the vessel within which I was going to form – I began to exist only when conscious experience first coalesced, or when the neural structures necessary for it first formed.
Out of all the questions reviewed here, this might be the most uncertain and open-ended. But in light of this uncertainty, the safest way to appeal to potential is arguably to see it as something that amplifies or enhances the moral status of a being which we’re already sure matters. Assigning moral status to an embryo purely on the basis of its potential requires much more controversial assumptions.
We’ve considered five difficult questions, none of which has a single obviously right answer. I’ve tried to indicate which answers are likely to be more widely attractive, and why. Those are: that sentience matters for moral status, that it’s best understood as subjective experience, that this depends on the cerebral cortex, that this isn’t functional until around 30 weeks, and that potential amplifies moral status rather than independently conferring it.
That combination of views supports thinking that a fetus has some moral status in the 3rd trimester, lacks it in the first trimester, and probably lacks it in the second, though we can’t be sure. This is independent of the equally vital questions of how the moral status a fetus might have to be balanced with the bodily autonomy of the pregnant person, and how the law should weigh in on that balancing.
But if it’s right that a first trimester fetus/embryo lacks moral status, that is already significant: that means that more than 90% of abortions are not just permissible but morally uncomplicated. Moral status in the first trimester would require either a strict humanness view of moral status, substance dualism combined with the claim that a soul is implanted at birth, or assigning massive moral weight to potential over actual capacities. All of these positions face significant challenges and are highly controversial.
Moreover, if late-term fetuses have moral status and early-term fetuses/embryos don’t, that implies that obstacles to abortion – anything which subjects pregnant people to delays, expense, travel costs, shame, or legal risk – is liable to turn morally uncomplicated early abortions into morally complicated late ones. In that respect, appreciating the moral status of late-term fetuses might be a reason to expand, rather than restrict, abortion access.
Luke Roelofs on Daily Philosophy:
Cover image by Ben Sweet on Unsplash.
