The Ethical Dilemma of Fetal Personhood

It is a fallacy to assume personhood begins at fertilization

Feb 20, 2024

Anti-choice advocates often assert that life commences at conception or fertilization, a claim purportedly backed by science. They frequently argue that abortion equates to terminating a human life and imply that personhood begins at this early stage of development. Central to this stance is the notion of the "equal moral status view of the human embryo," positing that all human beings, regardless of age, size, or developmental stage, merit equal moral consideration and protection from harm.

According to this perspective, the embryo or fetus is not merely a potential life but rather constitutes human life itself. Consequently, proponents argue that ending this life amounts to a grave moral transgression, outweighing any concerns about using someone's body to sustain another life against their will.

While this argument may appear compelling on the surface, it fails to withstand closer scrutiny. In reality, it lacks the necessary depth and nuance to justify restricting abortion rights. I will summarize a few of my thoughts, as well as those of others (cited in references) about this issue below.

Biologically, we cannot determine the moment when such a life acquires the moral status of a person, because there simply isn’t a concrete definition for a “person.” The process of personhood acquisition is likely gradual and most definitely subjective- or at the very least, there is no consensus on it (and probably never will be).

In addition, laws banning abortion obliterate the gray zones that arise from such discussion, both medically and ethically. On one end, we have the scientific observation of the biological characteristics of the human embryo or fetus, and the other is the philosophical question of when human "personhood" begins. Somewhere in between there is pregnancy - where one entity depends on the other for survival.

We will distinguish between biological life, pregnancy, and personhood (or biographical life- when does your story begin?) and I will eventually demonstrate how proponents of personhood from conception or fertilization don’t even actually believe this notion themselves (that an embryo or fetus is a person).

First, let’s address a couple of things:

First, I want to make it clear that “personhood” or “life” is actually not the argument of relevance. Opponents of abortion really like to push the idea that the fetus is a person, but spend hardly any time explaining how this leads to the impermissibility of abortion.

The whole argument about “personhood” or life is a red herring because regardless of personhood the questions we want to address are (assuming personhood for an embryo/fetus):

Why does this fetal “person” have the right to use another person’s body, meaning why do they have rights that no one else has? Usually, a pro-life person would argue that no one has the right to end another human life. But consider the following: suppose you, a morally upstanding person in the extreme, decide to be a living donor for a kidney. You have two good ones, you don’t need both, and many, many people do. You go through the screening and you do indeed qualify for kidney donation. Then one day you are contacted to learn that you are a match for someone with end-stage renal disease and they urgently need your kidney or they will die on dialysis. You are urgently needed to come to the hospital for the transplant. You still have the choice not to come, even though without your donation, that would-be kidney recipient will die. The transplant team is not permitted to come to your house, anesthetize you, and harvest the organ against your will just because you qualified and consented to be a donor at one point (just like how just because you agree to sex does not mean you agree to pregnancy). For instance, what if since that time you have learned that you have a heritable risk for developing kidney disease later in life and will need both organs? Or what if the circumstances in your life right now are such that you cannot spend the time in the hospital needed for recovery at this moment, but you would happily give your kidney to the next needed recipient as long as those circumstances resolve? There are any number of scenarios where this is the case, but fundamentally, you cannot morally or legally justify forcing someone to undergo that level of self-sacrifice against their objection. The comparison to kidney transplantation is especially apt because your chance of dying from being a donor in a kidney transplant is lower than your chance of dying as a consequence of your pregnancy- but it’s a risk far fewer people are willing to take on.

The right to life doesn’t give anyone the right to someone’s kidney, even if their life depended on it. Examining the question of whether a fetal “person” has the right to use another person’s body converges around the idea of morality. Some say that the unborn child is innocent and not at fault, but this doesn’t really answer the question without assigning some type of moral superiority to the child over the mother and others, even other children, who may depend on the mother for survival. This would imply that you would have to believe that the kidney transplant recipient has committed some kind of irredeemable sin and that they would deserve death if not for your generosity if we keep our premises consistent.
Most women who have an abortion already have other children whose needs may not be met during the pregnancy or if the mother dies. So if “bodily autonomy should not harm others”, the others should include the mother and other children as well, in all respects.
Technically these children are “innocent” too. It can be said that anything that may deteriorate the quality of their lives (which includes the health of the mother) is also a threat to their lives. But in reality, in the instance of threat to the life of the mother, one has “one whose life is threatened and one who threatens it. Both are innocent: the one who is threatened is not threatened because of any fault, the one who threatens does not threaten because of any fault.” If one is threatened one should have the power to interfere.
What about the case where the individual agreed to pregnancy? Some claim the unborn person has a right to their mother's body if the pregnancy resulted from a voluntary act, undertaken in full knowledge of the chance a pregnancy might result from it. There is a lot of nuance here. More than 50% of individuals were on birth control when they got pregnant. If sex ed isn’t part of a curriculum could one say it is voluntary? Clearly, this is not the case for rape. If it befalls on the mother to use her body, what about the responsibilities of the male then to provide support? Shouldn't that then be legislated as well?
Ironically, when it comes to exceptions of bodily autonomy many ALSO have no issue with gun assault or not wearing masks…or with the death penalty despite “life being sacred”..hhmmm, but anyway… They love the slogan :)
That takes us to the 2nd argument, which is best captured by the scenario proposed as follows: imagine there is a fire and one has the option of saving 4 embryos (or fetuses) or one 5-year child. If we agree that the embryos are people and therefore have all the inalienable rights inherent to that, then surely the moral choice would be to save them over the child because there are more of them and thus we allow for less harm by saving them over the child. Would one then let the child perish because the other 4 are persons (and more of them)? Likely not. This reveals another key principle: we generally value the life of the child with a biography more than the child without one. Yet, if only by virtue of time, the mother will always have more of a biographical life in comparison to their embryo or fetus- meaning any situation in which the two are in conflict, most would favor the life of the mother.
Most would also argue that the child would experience terror and horrifying pain, while the embryos would not. According to ACOG, "The science shows that based on gestational age, the fetus is not capable of feeling pain until the third trimester". The third trimester begins at about 27 weeks of pregnancy. ~99% of abortions terminate before 20 weeks. But then again, aren’t they all “persons''? How does one then decide? By extension, you can't put a five-year-old in a freezer and then take it out as you can embryos.
Does the moral intuition to save the child demonstrate that human embryos do not possess full personhood? Likely or maybe not. It would make sense to think of the child as a person here and that of the embryos or fetuses as potential persons. But even if the embryos do not have full personhood one cannot jump to the conclusion that they may be killed or don’t warrant respect. One can have respect for an embryo as much as one has for a deceased entity (a corpse) without recognizing personhood. While this may be an argument for some medical ethicists, it doesn’t address the dilemma that many parents, particularly women, face when deciding between the life of the embryo or fetus and the life of their other children or their own, which could now be compromised. What if the life of many depended on the woman not being pregnant (imagine a scenario where pregnancy prohibits the mother from doing life-saving work)?
The evidence overwhelmingly supports that banning abortions doesn’t actually prevent them but also doesn’t really preserve life either. While a child may have 80 +/-5 years of life expectancy at birth, the life expectancy of the mother and her children (and the unborn child) is negatively impacted by health conditions that may arise from a complicated pregnancy that is forced to term, as well as the poverty that may result as a consequence of forcing birth. Many of these infants born with fatal genetic or conformal defects will also likely die within a few months of birth. More importantly, unsafe abortion will continue. This is compelling- because our Constitution should be interpreted with public health data in mind. There’s a disturbing corollary though in the observation that the extremely clear, unambiguous public health data show that abortion rates do not change with the legality of abortion. Yet, so-called pro-life advocates will call for its illegalization anyway: the life of any pregnant person contemplating abortion does not matter. Unsafe abortions can readily become fatal as desperate, pregnant patients may take toxic substances or attempt to perform the procedure on themselves, risking life-threatening sepsis- both circumstances in which the embryo or fetus they are gestating will also die as it depends on the survival of the mother throughout at least pregnancy. But this cost is apparently judged as acceptable, because in contemplating an abortion, under this school of thought that the embryo or fetus is a human life and morally equivalent to the mother, it is more appropriate for the mother to die or face life-threatening harm from her choice than to enable a harm-reduction approach. Doesn’t seem very pro-life, does it?

So back to the claim about “life” starting at fertilization…

An amicus brief filed with the Supreme Court in Mississippi that overturned Roe v. Wade made this claim.

A University of Chicago graduate student in comparative human development carried out a survey and found most respondents trust biologists over others – including religious leaders, voters, philosophers, and Supreme Court justices – to determine when human life begins.

He sent 62,469 biologists who could be identified from institutional faculty and researcher lists a survey, offering several options for when, biologically, human life might begin. He got 5,502 responses; 95% of those self-selected respondents said that life begins at fertilization when a sperm and egg merge to form a single-celled zygote. However, this is as accurate as asking a group of mothers whether vaccines are harmful, getting responses primarily only from those who think so and are most likely to answer and claiming 100% of moms think this.

In the end, only 70 of those 60,000-plus biologists supported Jacobs’ legal argument enough to sign the amicus brief.

Technically any cell is alive (a cell is the basic unit of living organisms), even cancer (which has its own DNA too), and while we could potentially say that the formation of a new being does indeed begin at fertilization (often citing something this), the moral status that would grant it fetal personhood and more rights that another person is a more complicated one.

Howard A. Schneiderman Professor of Biology Scott Gilbert who teaches embryology and developmental genetics admits he can't answer the question about when personhood begins. He adds with "absolute certainty" that there is also "no consensus among scientists” - even more so when assuming it occurs at fertilization. A wide range of intrinsic characteristics has been considered for personhood e.g.: the moment of conception, implantation, gastrulation, central nervous system development (when the fetus acquires the human-specific electroencephalogram pattern, even then, those are sleep EEGs- there's no indication of fetal awareness), quickening, the moment of birth, gradually. Given the variability of proposed characteristics, there are many views about when the embryo/fetus does or does not acquire independent moral status.

Even the idea that our DNA uniquely defines us as a person has been extensively challenged by epigenetics. We aren’t entirely programmed at fertilization, nor are our behaviors or personality traits that create our unique sense of individualism.

For instance, even in genetically identical mice where mothers were given different diets, the different diets activated and suppressed different genes. One mouse is obese and golden, and the other is sleek and brown, so the genes are not determining their obesity in this case. The genes do not determine their color. It's the environment, the maternal diet that's doing this. Many of our fundamental bodily behavioral characteristics are not determined by genes but by the environment.

The notion of fertilization is a rather weak statement because of the ability of the same genetic material to form twins and triplets. If indeed we considered personhood to begin at fertilization, would then monozygotic twins be considered one person? Would chimeras (a single organism that's made up of cells that have multiple genotypes e.g. from fraternal twins that refuse during pregnancy) then be considered more than one person? Would gastrulation then be the new benchmark for personhood?

Not all fertilization events come to term as babies. If indeed, pro-birth advocates (and SCOTUS) believed a fetus or embryo had personhood then:

It wouldn’t be left up to the states to decide where to draw the line - it is precisely that there is no consensus around this that negates the argument altogether -Why is personhood then defined at 6 weeks in some states versus 15 in others?
And my favorite from Gilbert: “Pregnancy would have to be regarded as a public health crisis of epidemic proportions: Alleviating natural embryo loss would be a more urgent moral cause than abortion, in vitro fertilization, and stem cell research combined." If they believed in fetal personhood then so many resources would be invested in maternal health, prenatal care, etc - including disability paid leave for pregnant mothers.

When discussing the notion of “life” it thus remains imperative that one asks for clarification of what is meant by “life”. “Some people believe that someone's "life" can end even though their body remains alive, such as with brain death, persistent vegetative states, and deep, irreversible comas where “consciousness is completely lost, with no potential for return.”

Anti-choice advocates (and yes, given the logical conclusions of their viewpoints I think it’s fair at this point to call them that) say one cannot compare end-of-life cases and beginning-of-life cases since embryos and beginning fetuses are not brain-dead. While that is indeed true, can we claim that “their brains are alive" in the sense related to being conscious and having experiences? That's debatable- we lack the evidence.

“Embryos and beginning fetuses are, of course, biologically alive and biologically human: that's obvious and scientific.”

In several religions, when an embryo or fetus becomes a person is unknown and the scientific community agrees with this. The question then becomes should women be obligated to use their bodies to support beings that are merely biologically alive, but not a person?

When discussing hard decisions, often life-and-death ones, we are asking an ethical question, not merely biological ones. The issue then revolves around a more complex set of parameters that involve the mother and her family.

Consider a woman with severe nausea and vomiting in pregnancy, hyperemesis gravidarum, that impedes her from feeding her other children, and from fulfilling her responsibilities as a mother. How is that decision made? This is why abortion laws are problematic - they place the so-called “life” or “personhood” of an embryo or fetus that may not even make it to term above very real problems and hard decisions women face.

Why is the dignity of the unborn above that of all others? Why is the dignity of the unborn then not paired with better access to healthcare, free maternal care, disability leave, better education, environmental protections, gun control, and masking requirements to protect and preserve human life? It then becomes clear that the sanctity of personhood is selective to the “innocent”. The arrogance of the anti-choice movement is thus rooted in their imposition of their sense of morality onto others to dictate what a woman can or cannot do with her own body. But it stops there, for the most part, without actually doing or addressing anything to truly preserve the lives of people once born. Personhood is most valuable in the womb.

Roe v. Wade does not take a position one way or the other on the morality of abortion. It merely says the Fourth Amendment right to privacy prohibits the government from interfering with a woman’s right to make decisions about her own body. In it’s reversal, making the claim about bodily autonomy being limited to not doing harm, the court overwhelmingly neglects the harm that results from abortion bans not just to the mother, but to society as well. It is also hypocritical considering the history of gun violence in America.

References:

Teching It Apart

Discussion about this post