Embodiment in the world
I have yet to consider the most obvious change brought about by birth: physical separation from the pregnant woman. Unlike the preconditions for self-consciousness and agency that I discussed above, this change is an immediate difference between late fetuses and neonates on the other side of birth. As soon as it is born, the neonate immediately possesses something it previously lacked, this being separate embodiment in the world. Is that a purely ‘extrinsic’ property?
Insofar as physical separation of the fetus from the woman can depend on things not having to do with the individual features of the fetus, such as a freak incident triggering premature labour, it could be considered an extrinsic property. But then, almost any property can be extrinsic in this kind of way. The neonate’s physical separation is also an intrinsic feature in the sense that it is a physiological feature internal to the new human being. But is it a morally significant intrinsic feature?
A foreseeable objection to the suggestion that separate embodiment is morally significant is that an individual who is physically attached to someone else can undoubtedly still be a person, as Thomson’s violinist demonstrates. In that thought- experiment, there is no doubt about the violinist’s full moral status merely because he is attached to another’s body; this is what makes the case an apt control test for the moral relevance of bodily dependence on another.
As Thomson’s argument tried to show, facts that are in one way ‘extrinsic’, like the fact of your being attached to another person’s body, could also be morally significant, affecting your rights against that person, like the right not to be killed by them or to continue getting bodily support at their expense. The fact that the violinist finds himself attached to your body and incapable of surviving in any other way is an extrinsic feature of his in that it is situational, yet so are many facts that can determine an individual’s right to life. One thought-experiment in moral philosophy I mentioned in chapter 3 concerned a large man blocking the mouth of the cave in which other people are trapped and which is quickly filling up with water. As we saw there, some hold the view that if there is no other route to salvation, those trapped are permitted to blow up the large man in order to escape. This of course means that the large man’s right to life is conditioned by situational facts: the fact that he is (albeit blamelessly) blocking the mouth of a cave in which others are trapped; the fact that the cave is filling up with water, the fact that there is no other avenue of escape, and so on.
So Thomson was not wrong to think that a situational fact could affect a person’s right to life. I argued that Thomson was nevertheless wrong in her particular claims about abortion. That is, if we really believe that the fetus is a fully realized person, we cannot show, using general moral and legal principles, that abortion is almost always permissible. But in chapters 2 and 3 we also learned just how difficult it is to maintain, for the sake of argument, the presumption that the fetus is fully a person whilst being entirely enclosed within the womb. As Margaret Little points out, imagining persons like this seems to stretch our concept of a person possibly beyond recognition.
The difficulties we encounter when trying to imagine persons that are enclosed in another’s body indicate to me that separate embodiment in the world plays some part in our concept of a person. At the very least, a lack of individual embodiment seems to constitute a diminution of one’s personhood. This can be brought out by looking to Stephen Mulhall’s analysis of a real-life case of conjoined sisters, Abigail and Brittany Hensel, who, conjoined below the neck, share a significant proportion of their body. Mulhall’s comments about the twins come as a response to McMahan’s claims that, in such a case, no one can doubt that they are ‘separate and distinct little girls’, each one having an independent mental life and personality, despite sharing a physical body. In reply, Mulhall underscores the myriad ways in which the girls’ shared embodiment precludes them from living the kind of life distinctive of persons. For example, the ‘rootedness’ of their biographical lives in ‘common flesh’ means that neither twin can ever play with other children on her own, have a private conversation with her mother, or go out alone with a boyfriend.39 This does not mean that neither twin should be regarded as a person in her own right, and Mulhall does not suggest this. But we might accurately say that the twins’ wealth of togetherness, caused by their physical union, gives rise to a serious deficiency in their ability to live fully as persons. Perhaps, then, as Mulhall writes, a ‘sense of the separateness of persons’ is embedded into our concept of personhood.40
The fetus’s lack of individuated embodiment is far more extreme than that of the Hensel twins. Despite sharing a physical frame in very thoroughgoing ways, the conjoined twins do both have an embodiment in the world of other human beings. They can interact with that world and with other people as individuals, and produce some effects in it. If nothing else, they can communicate as individuals and express personal identities. None of this is true of the fetus. We can imagine being presented with a different pair of conjoined twins, one of which is completely enclosed within the other whilst still, somehow, being biologically sustained and in possession of a mental life. Unlike what appears true of the Hensel twins, I imagine that here many people will find themselves doubting whether it is really correct to identify two individual persons at all. This is a good indication of the importance of physical individuation for our common concept of a person, and of its limits. Although it is easy to think of persons that are, in some significant ways, in a situation of bodily enmeshment with others, there is a level of enmeshment beyond which much of the meaning of personhood seems to be lost.
In this respect, the fetus and the neonate are indeed differently positioned, despite the fact that whether or not they are so positioned depends on the fact of birth and everything that occasions it or delays it. Before it emerges into the world, the fetus cannot partake in interpersonal relations of any kind, communicate with the wider world, or respond primitively to other human beings, as can the neonate. Enclosed entirely within the body of another, the fetus has a solipsistic kind of existence whereby it is hidden and sealed off from other human beings and whereby they, in turn, are sealed off from it. This enclosure forestalls the fetus’s engagement with the world of other persons as an individual member of their community, as well as its ability to express agency in the world. Although we can feel and see signs of its existence, and the fetus itself might respond to some stimuli that originate in the outside world—sounds, taste, movements, etc—that engagement is at all times mediated through the body of the pregnant woman.41 our brain survives. See Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life (Oxford University Press 2002).
- 39 Stephen Mulhall, ‘Fearful Thoughts’ London Review of Books 24 (2002) 16—18.
- 40 ibid.
- 41 For a good development of this point, and of the fact that the distinction between being in the world and being in womb subsists despite permeable boundaries, see Burin (n 27) 514—15.
The fetus is, in important ways, set apart from the world of common humanity. It is only upon emergence into that common world at birth that other humans can fully treat it as a fellow person—can directly see it, touch it, speak to it, assess and respond to its needs or confer benefits upon it, without going through the body of the pregnant woman.
Just as Mulhall said of the intelligent Superdog, it is difficult to see the sense in calling the developed fetus a person when it is so set apart from the context of shared human culture in which personhood as we know it is expressed. One might argue that the fetus is much further outside of that shared life than is the Superdog, since it cannot so much as exercise simple agency in the world. Its effects on the body of the pregnant woman are the only direct effects in the world it is able to produce. Newborns, by contrast, possess the separate embodiment that is necessary to fully partake in shared human life, and necessary for other humans to relate to them as fully fellow creatures. Other human beings can soothe a newborn, teach it, talk to it, and try to ascertain its wants. In short, they can treat it as one of them in ways that are only made possible by direct engagement with a creature as a separately embodied being.
Mulhall does not consider the fact that the fetus’s enclosure in the womb seals it off from embodied human life not only partially but completely. Rather, he implies that, as with infants and the severely cognitively disabled, the ability to see in fetuses our own human embodiment is a reason to regard them as fellow creatures in the fullest sense, and to draw them into the fold rather than marginalize them. In the previous chapter, I argued that the burgeoning human embodiment of the gestating fetus is a reason to accord the fetus greater moral respect as it develops throughout gestation. Even late in gestation, however, fetuses differ starkly from both infants and the radically cognitively disabled in one respect that Mulhall deems preeminent. They lack the separate, physical presence in the world essential for sharing in embodied human life.
To be clear, the argument here is not that separate embodiment in the world is a condition for personhood status. Whether or not that is true, we do not have to decide on it for my purposes here. Pursuant to the ‘range property’ argument, I have only been outlining some reasons why birth is a particularly appropriate threshold at which to stipulate the beginning of fully realized personhood according to law, given that stipulation is, in all events, unavoidable. Against the conventional view that birth is completely morally arbitrary, I suggested that the transition from the womb to the extrauterine environment is a meaningful event in the life of a new human being. The many physical transformations occasioned by birth are not ‘merely’ extrinsic. Moreover, reflection upon the importance of separate embodiment in the world for distinctively personal life reveals the ways in which birth, far from being meaningless, places a new human being in the context within which the capacities of personhood are made possible. These strike me as good enough reasons to settle on birth as the threshold of legal personhood, assuming that it lies within the range of acceptable answers.
-  This consideration is intended to go in favour of McMahan’s ‘embodied mind’ account of personal identity, according to which we persist as the same person over time as long a certain part of