Gradualism and Human Embodiment
In chapters 5 and 6, I contrasted two very different views about the emergence of personhood, or ‘moral status’, in human beings: the punctualist thesis and the gradualist thesis. I suggested that there is no compelling reason to accept punctual- ism, but good reason to accept the gradualist thesis, which holds that no sharp borderline exists between the absence of moral personhood and its attainment. I noted that, on one reading, the crux of the conception threshold argument is that personhood is not a property which is attained at all, but that it is just always present in personhood-possessing creatures, throughout their existence. Thus, human beings must always be persons from conception. I raised doubts about this argument, and about the notion that any particular view of the conditions for persisting numerical identity lends support to the conception threshold of personhood.
Still, the gradualist thesis as I have sketched it does not refute the proposition that all human embryos are persons. It says only that there is no reason to assume a sharp threshold exists between the absence and the presence of personhood status, since there is no good reason to think that personhood is the kind of property that emerges wholly and instantaneously. This is not incompatible with a species membership criterion of personhood because, even if it is implausible to think that persons come into existence wholly and instantly, it may still be true that personhood supervenes on human genetic coding or human biology. My significant conclusion was simply that, if punctualism is false, it is misguided to grant or withdraw support for a threshold of personhood based on its apparent decisiveness. And in any case, as I also argued, absolutely no threshold is decisive in the requisite way.
So the very fundamental question about the basic conditions for personhood remains. And if there are convincing reasons to support a species membership criterion, the falsity of punctualism will not matter very much for those who argue that abortion is morally prohibited at every stage of human life. The coming-to-be of persons is incremental and vague at the margins because this is true of the coming into existence of new individual human beings, in the form of zygotes. However, once a new human being is clearly on the scene, the species membership criterion of personhood, if correct, would still tell us that almost all abortions past that point are morally wrong.
When the criteria question is thrown back open like this, so are all of the familiar reductio problems introduced in chapter 5. We still need some defensible criterion
Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.
or criteria of personhood to be able to point to those properties the fading in of which mark the onset of moral personhood. But as soon as we begin this endeavour, the reductio ad absurdum problems spring right back. It seems that whichever conditions of personhood one might endorse, counter-examples can be summoned with relative ease. Conscious desires: what about the unconscious, or those bereft of any desires? Rationality: what about infants or the severely cognitively defective? Socialization: what about the permanently ostracized? Human species membership: what about the hypothetical existence of a species of super-intelligent aliens? And so it goes on.
An alternative way of thinking about the beginning of personhood in human beings is captured by the increasingly popular idea that moral considerability strengthens throughout gestation as the fetus develops towards full maturation and birth, when the new human being becomes a fully instantiated person. Indeed, this is the thesis more generally associated with so-called ‘gradualist’ thinking about abortion ethics and fetal moral status. Some notable contributions have expressed support for the broad proposition that late fetuses are owed more in the way of moral protection and respect than early ones, a notion that also seems to fit well with common intuitions about abortion morality. The kernel of this gradualist thesis is that moral status at the beginning of life is not an all-or-nothing affair. Rather, as the fetus matures, its interests and moral rights—including, most importantly, its rights against the pregnant woman—strengthen. Margaret Little describes the idea as follows:
In short, what a great many people believe is a graduated view of embryonic and fetal status: even at early stages of pregnancy, developing human life has an important value worthy of respect; its status grows as it does, increasing gradually until, at some point late in pregnancy, the fetus is deserving of the very strong moral protection due newborns.1
As Little explains it, the moral status of the fetus increasingly consolidates as it matures until, eventually, perhaps very close to birth, its moral importance is practically indistinguishable from that of newborns. In a similar vein, LW Sumner writes that development is the ‘most obvious feature of gestation’, and that ‘.. . an adequate view of the fetus must be gradual, differential, and developmental’.
This gradualist thesis is clearly different from the one I adumbrated in the previous two chapters. The gradualism that I juxtaposed with punctualism only holds that there is no sharp, absolute borderline between the absence of personhood status and its attainment. It does not make any claim about the timeframe during which moral status progressively emerges. We can think of this as gradualism in sense 1. Little’s gradualism, which we can call gradualism in sense 2, holds that the gradual emergence of per- sonhood status takes place throughout the gestation process, and that the further along the developmental path a fetus is, the more moral status it has amassed. Gradualism in sense 2 clearly implies gradualism in sense 1, but the reverse doesn’t hold.
The sense 2 gradualist view of fetal moral status is ‘developmental’ in that it posits a view of moral status as supervening on post-conception human development. However, it clearly differs from the sorts of developmental accounts which tie per- sonhood to a particular biological or (more often) psychological development, which is believed to make all the difference between the complete absence of full moral rights and their attainment. It is usually an upshot of these kinds of developmental accounts that third trimester fetuses are more morally important than first trimester ones, because the more developed fetuses are believed to have acquired a necessary and sufficient person-making capacity or trait. This is true of David Boonins suggestion that fetuses become morally considerable beings when their brains are capable of organized cortical brain activity and, hence, basic conscious desires, somewhere between twenty-five and thirty-two weeks of pregnancy. 5 But it does not follow from a threshold developmental account such as Boonin’s that gestating human life is, at all times, continuously accruing moral status, the crux of the gradualist (sense 2) view. For Boonin, the fetus is simply not morally considerable at all before it acquires organized cortical activity, and is morally considerable afterwards.
As intuitive as the gradualist view may be, however, it does not, on its own, resolve the main puzzles surrounding moral status and the conditions for per- sonhood. The fact that this is so can be brought out by reflecting on one of the most important challenges to gradualist thinking, presented by Joel Feinberg. 6 Considering the proposition that the ‘moral weight’ of the fetus grows in a way that parallels its physical growth and development, Feinberg underscored a certain logical problem. A more developed fetus is, admittedly, closer to becoming a fully realized person than is a zygote. However, being almost qualified for rights is not the same as being qualified for partial or weak rights. Analogously, he remarked, when, in 1930, Roosevelt was only two years away from becoming President and Jimmy Carter was a six-year-old future President, Roosevelt did not have any more Presidential prerogatives than did Carter. It is not obvious why the mere fact that the later fetus is chronologically closer to becoming a fully realized person means that it is more of one—or, in Feinberg’s terms, is in possession of stronger rights. Sumner’s observation that development is the ‘most obvious’ feature of gestation may be true, but how does this change fetal moral status?
they develop throughout gestation, and not only chronologically closer to becoming full-fledged persons. As I defined it, this is exactly what the gradualist thesis ‘proper’ claims. The defender of gradualism must therefore explain in virtue of what a gestating fetus enjoys increasing moral status, the more developed it becomes. This of course leads us straight back into the problem over the criteria for moral status, a problem which gradualism shares with all accounts of personhood at the beginning of life. As with any account of moral status, gradualism must endorse some criteria or criterion of personhood. It must specify those properties that are constitutive of personhood in general, so as to be able to explain the growing moral status of the fetus by reference to those properties in utero.
A gradualist account is also forced to confront the traditional problems concerning the criteria of moral status as a result of its need to explain why the boundaries of moral status are conception and birth. Put otherwise, why does the process of becoming a fully realized person begin with conception and end with birth? Why does it not begin later, say, at viability, and end later, say, in early infancy? Alternatively, why ought we to dismiss the possibility that the gradual process of developing moral status ends earlier than birth, somewhere in late gestation? In other words, gradualism cannot simply assume that the timeframe of graduated moral development spans the gestation period from beginning to end. Some argument must be presented as to why this is so, and that argument will, of course, rely on some account of the constitutive features of moral status.
So a gradualist view cannot evade discussion about the conditions of personhood. Moreover, when engaging in this discussion it seems that the gradualist is as much at the mercy of reductio counter-attacks as any other theory. In what respect exactly is a fully matured fetus more of a person than an embryo? A number of suggestions might be made: its more advanced human physiology; its higher level of brain activity; its possible sensitivity to pain; or its capacity for independent breathing. But for any given criterion, an interlocutor can raise a counter-example to discredit it in the usual fashion. Are not the physically disabled fully instantiated persons? If so, what does fully developed human anatomy have to do with personhood or the right to life? Few would doubt that human beings suffering from brain damage, or currently only able to survive on life-support, are persons in the philosophical sense. If so, why does consciousness, brain functioning, or viability affect the moral value of human life before birth? The problems associated with adducing a universal criterion for personhood do not just disappear when one adopts a gradualist account of fetal moral status. I want now to dwell a little more on a few recurring reductio problems in discussion about the basis of moral status.
-  Margaret Olivia Little, ‘Abortion and the Margins of Personhood’ (2008) 39 Rutgers Law Journal 331, 332.
-  ibid.
-  Little nonetheless believes that as long as fetal life resides in a woman’s body, the legality of abortion cannot be determined by fetal status alone, although this is not taken to be a necessary implicationof gradualism but the conclusion to a different argument more in line with the kind I surveyed inchapter 3 (see ibid and Margaret Olivia Little, ‘Abortion, Intimacy and the Duty to Gestate’ (1999) 2Ethical Theory and Moral Practice 295).
-  LW Sumner, ‘A Third Way’ in Joel Feinberg and Susan Dwyer (eds), The Problem of Abortion (3rdedn, Wadsworth Publishing 1997).
-  David Boonin, A Defense of Abortion (Cambridge University Press 2003) 115—29.
-  Joel Feinberg, ‘Abortion’ in Feinberg, Freedom and Fulfillment: Philosophical Essays (PrincetonUniversity Press 1994) 54.