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Sex Equality and Fetal Personhood

The sex equality argument as I have defined it appears to be neutral on the question of fetal personhood. That is, it seems to claim that sex equality is a sound basis for abortion rights whether or not the fetus is a person with the same moral status as born human beings.

MacKinnon asserts straightforwardly that because ‘fetal rights as such are in direct tension with sex equality rights’, they cannot be tolerated.26 This assertion is not accompanied by any consideration of how things would stand if the fetus were a person in the philosophical sense. The question can be asked, then, whether MacKinnon believes the sex equality interest is sufficient to justify abortion rights with or without an accompanying denial of fetal personhood.27 This ‘sufficiency thesis’ is implied by MacKinnon’s comment that once one recognizes sex equality as part of the abortion problem, it will no longer matter that the fetus is a ‘form of life’. For why, she asks, should women not make life and death decisions?2® MacKinnon’s comments here are suggestive of the view that even if the fetus is a person, abortion might be considered a form of justified homicide, owing to the interest in sex equality that it protects. In short, the sex equality interest resolves the abortion question permissively whatever status one accords to the fetus.

But if this is indeed a claim that MacKinnon and others are making, it is one that is extremely difficult to accept. This can be shown by the following consideration. MacKinnon and Sherwin correctly point out that it is not chiefly pregnancy but more so unavoidable childrearing which threatens to socially disadvantage women and curtail their independence from men. Thus, laws which prohibit infanticide of born children up to any age at which they are still significantly dependent also impede sex equality, if women would otherwise choose to liberate themselves that way. Women could probably secure better equality with men if they could have their born children exterminated at any time. But it is unthinkable that the sex equality interest could ever be strong enough to justify that. This thought-experiment tells us that we do not think furthering sex equality is a justification for homicide. And we do not even need the infanticide example to tell us this. There is a good case to be made that the plight of women will be greatly improved by dropping a bomb on Playboy magazine’s headquarters, but this is not a justification for doing so. Consequently, if the fetus is presumed to be a person, the sex equality interest is not sufficient to show that abortion is morally justified. Such a claim would rely on the argument that conduct otherwise amounting to murder is transformed into justified homicide if it is needed to combat sex inequality. But any further thinking shows this is not a principle we can reasonably accept.

Against the infanticide counter-example, it may be objected that, post-childbirth, women can always extricate themselves from social motherhood at any time by having their children adopted, and that infanticide would therefore never be practically necessary for the furtherance of women’s equality. Hence the comparison is not apt. This objection fails for two reasons. First, it is equally true of many pregnant women that they can arrange adoptions to relieve themselves of childcare responsibilities following childbirth, which presents the main threat of social disadvantage. But if the avoidance of either motherhood or adoption can justify killing a fetus- person in the furtherance of sex equality, it should also, in theory, justify killing a five-year-old for the same reason. Second, if it is still considered a serious point of disanalogy, the thought-experiment could simply be amended to exclude adoption as an escape route. In a country where adoption agencies did not exist, or were outlawed, and where the only means by which women could relieve themselves of onerous and socially disadvantaging duties of childcare were infanticide, could the value of sex equality justify the practice? I think not. If the sex equality argument is intended to succeed in spite of any presumption of fetal personhood, it surely relies on a principle of permissible killing that would not be accepted in any other context. The fact that this is so serves as a good indication that the denial of fetal personhood is integral to the feminist case for abortion rights.

This all serves to show that the sex equality interest in reproductive control is not sufficient to justify abortion philosophically. Other things must also be true— namely, that the fetus is not a person, morally equal to born human beings. If the interest in sex equality justifies abortion rights, this can only be because the fetus is something less than a person, since the furtherance of sex equality is not a justification for homicide.

It could be objected here that feminist perspectives on abortion do indeed engage with the question of fetal moral status. Sherwin argues that ‘because of a fetus’s unique physical status—within and dependent on a particular woman—the responsibility and privilege of determining its specific social status must rest with the woman carrying it’.-29 She also points out that, unlike born human beings, fetuses are by nature limited regarding the relationships in which they can participate. Being enclosed in the womb, it is simply impossible for them to fulfil the kinds of relational roles that it is possible to fulfil after birth. Hence, although fetuses are, on her view, morally significant, their status is ‘relational not absolute’. By this, I take it Sherwin means that their moral status can only be dictated by the pregnant women in whose bodies they reside.

These are indeed arguments about fetal moral status, and they are also arguments about moral status as such. The claims are, at bottom, that situations of complete bodily dependence or lack of access to certain social goods, like relationships, preclude a human organism like the fetus from possessing full moral status. These arguments may be correct, or they may be wrong. Moral philosophers spend a good deal of time debating their veracity. As we should know by now, Thomson’s famous violinist analogy is an argument that complete bodily dependence on another human being alters the moral status of the dependent being (for her, it alters it in such a way that the dependent being has no right not to be killed by the host being or her agents).

Thomson, in effect, reaches the same conclusion as does Sherwin—that bodily dependence on another determines moral status, especially one’s right not to be killed—albeit in her case, it is the conclusion to a lengthy argument by analogy. Sherwin’s ‘relational’ view of the fetus is a different argument about the conditions for moral status, or ‘personhood’. By offering it to us, Sherwin demonstrates some agreement that individual or class interests in ending unwanted pregnancy would struggle to justify homicide unless the fetus’s right to life is, to begin with, weaker than that of born human beings. But of course, many will want to look more closely at the idea that the fetus is differently positioned at the outset, including at the claim that the inability to partake in relationships strips a being of full moral status. This too is a general claim about the conditions for moral status, and one about which some discussants may raise doubts. They may ask whether it can really be correct that moral status depends on the relationships one forms, or is able to form, with others—what about the misanthropic, the perpetually isolated, the man stranded alone on a desert island? These doubts may lead in turn to larger questions about what sort of access to human fellowship is needed for full moral status (actual, or only hypothetical?), if indeed such access is. Whatever our answers to these questions, it seems that the wider complexities bound up with the issue of moral status cannot be avoided in abortion argument by underscoring the sex equality interest in reproductive control, or by pointing out plain facts about the fetus’s particular situation of dependence, without explaining how and why these facts pertain to the general conditions for moral status. Because of this, the sex equality argument for abortion rights cannot bypass the central question about the moral status of the fetus.

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