Wednesday, July 24, 2013

Sliding scale of personhood

Viability: the “interim point at which the fetus becomes...potentially able to live outside the mother’s womb, albeit with artificial aid.” –Supreme Court, Roe v. Wade

The legal community does not consider a human fetus “viable” unless he can survive outside the womb with artificial aid. In 1973, the Supreme Court set viability at the 28th week of gestation. Beyond this point, states could pass laws regulating or even banning abortion, due to a compelling state interest to protect life. Forty years later, in 2013, actual viability in the developed world stands at about the 24th week of gestation. Babies born as early as the 22nd week of gestation have survived.

The rhetoric of the body autonomy movement’s “moderate” elements indicates the limit of viability is the point at which a lifeless clump of cells becomes a person, striking a balance between conception and birth. While this compromise is preferable to the status quo in jurisdictions that allow late-term abortions, it is not a reliable definition of personhood.

Infant mortality rates depend greatly on the times and places they are borne into. A baby born 16 weeks premature has roughly an even chance of surviving in 2013 Boston. He has little to no chance of surviving in 1913 Bombay. Does it follow from these chance circumstances that the fetus in the former case is a person endowed by his Creator with inalienable rights, and the fetus in the latter case can be discarded at his mother’s whim? If so, it places the body autonomy movement in the uncomfortable position of cheering against advancements in neonatal care, which shorten women’s window of time to have an abortion.

The future does not always entail progress. Surely the infant mortality rate in 1250 Hamburg exeded the infant mortality rate in 1350 Hamburg, when half the population died of bubonic plague. Should such a calamity befall us, or limited resources beset us, are we prepared to redefine legal abortion upwards, up to or even beyond birth, as bioethicists Alberto Giubilini and Francesca Minerva argue?

Both a fetus and a newborn certainly are human beings and potential persons, but neither is a “person” in the sense of “subject of a moral right to life.”


We take “person” to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her.

What is the use of the definition of viability, when for months newborn babies remain as dependent on their mothers as they were in the womb? She feeds him, only from her breasts, rather than from the umbilical cord. She clothes him, only in onesies and diapers, not in amniotic fluid. When he cries in the night, she comes. Pro-choice logic, such as it is, should empower women to reclaim their autonomy from these little tyrants.

Ancient Sparta justified infanticide by discarding boys who would not make good soldiers. This is a cold, utilitarian evaluation of life, to be sure, but no more arbitrary than our “viability” legalese.

If technology allowed us to carry over the in vitro fertilization process to gestation in artificial wombs, thereby reducing viability to the moment of conception, the whole jurisprudence surrounding abortion would be reexamined, in hopes of finding a new way to justify the “right” to an abortion.

Viability is a fig leaf. The pro-choice activists in Austin weren’t fired up over the Texas legislature setting viability at 20 weeks. They were upset anyone would tell them what they couldn’t do with their bodies. Twenty weeks, 24, 34, it would not have mattered. The numbers are relative. The value of human life, however, is not.

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