Controlled Burn: Bodily Rights or Lileigh's Location (Part I)

AKA: Thompson's Violinist Argument (and variants) or Parasite Pregnancies

Lileigh was an 8-1/2 month developed unborn child who suffered an injury prior to birth, was born via c-section, then died. Technically, the judge ruled her death a non-homocide because she wasn't considered a person at the time of the attack based on Colorado law. Her location was critical, both to the cause of her death, and how she was treated by the court. Lileigh's death highlights the irrational logic of abortion-choice, where one can legally be a non-person human-being.

Lately over at Jill Stanek's blog I've run into many abortion-choice advocates who are mother-bodily rights proponents who argue:

that the unborn are human beings, but by being in their mother's womb, the mother's bodily rights means their right to life is at the lone consent of the mother.

In short: The mother's bodily "sovereignty" overrules all rights of the child she carries.

The pre-condition which initially raises this issue is that the mother consented to intercourse, but not the resulting pregnancy: hence the abortion.

Francis Beckwith, in Defending Life, points out this issue, as framed, has been dealt with extensively by Judith Jarvis Thompson, Eileen McDonagh, David Boonin and others in variations on Thompson's violinist example.

Here's the scope of issues:

• 1. Metaphysical: The intrinsic nature of contestants - procreation & relationships;


• 2. Morality: agency of rights/responsibilities;


• 3. Intuitions, analogies and philosophical anthropologies - rationale & application.

Note: Initially I thought I would be able to handle this in one rather long post - however, after some reflection I've decided that it might be easier to comprehend if I broke it up into 3 parts. We'll start with the first part, with the remaining parts to follow.

1. Metaphysical: Intrinsic Nature of Contestants

Since the contest is between the rights of two conflicting human beings, we first need to establish the metaphysical basis of origin, substance and existence. The critical question to ask is this:

Are the two human beings equal on every morally relevant point to decide this contest?

Thompson et al. concede that the child is indeed a human being. However, the extent of her rights as a human being are contested, immediately indicating that the unborn's personhood is not considered the same as that of the born human being, specifically because of their relationship. We'll discuss relationship, personhood, non-intrinsic objections, then summarize the metaphysical question.

a. Relationship

Because of the mother-child relationship we immediately run into a very hard fact that provides a basis for rejecting every other philosophical anthropology, because the existence (not merely life) of one of the beings is dependent, in part, upon the other being.

"Aha!" say the abortion-choicers, I rest my case. Not so fast - all that's really been stated is that Thompson's violinist arguments and the like cannot apply to this issue at all, because the substance-existence relationship is not found in any other example.

In other words all of Thompson et al. examples are controversial non sequiturs which fail before they even get off the ground of solid metaphysical reasoning because the mother-child relationship is completely unique when it comes to human beings. If we're talking about the rights of two bodies, then you must start with the bodies, the flesh and blood - right?

Let's back up a second, because the unborn's existence (again, not yet discussing on-going life) is dependent only in part upon the mother. As we now know, the father provided the other half of the DNA for that child's substance. Quite literally, at the completion of conception, two have become one flesh. It's also factual our existence is not detachable from an unbroken chain of pregnancies - a relational continuum of life. The violinist examples do not have that essential pre-condition. They assume a metaphysical grounding detached from this means of origin within the context of the vital relationship that brings about humanity.

So what they throw out cannot be thrown out: that the conceptual process and the substance nature of both mother and child are of the same nature, an on-going human nature.

However, does 1) being of the same substance of human flesh and blood and 2) the existence of both "beings" brought about through a unbroken chain of pregnancies make them morally equal on all bodily rights?

Well, with criminal violations aside, we treat all born human beings of that same substance and that procreative process equally. Since all other born human beings arrived on this planet the same way, the human substance - flesh and blood, and the conception & gestational process is universally equal to all human beings. Clearly both substance and gestational process are pivotal to our discussion.

b. Personhood

Arriving at the issue of personhood, the question must be raised: do the two contestants have the same moral basis for personhood? That is, not do they possess the same degree of development of person, but do they each possess all the essential common characteristics we recognize as necessary for a human person?

I believe this is the great schism in the debate, because the abortion-choice position assumes:

That human beings can redefine the personhood of other human beings

But do human beings possess that right? The issue is critical because we're dealing with personal autonomy. How can we test this?

Because the mother-child existence relationship is unique, the only reasonable test of a human being's personhood we can perform is to swap the two contestants locations making the daughter the mother and the mother the daughter. The mother is now within the body of the daughter - think of the movie Freaky Friday, then zoom back to the time of pregnancy. (But unlike Freaky Friday, the bodies are exchanged as well.) Granted this is a conceptual swap, but from a practical sense, our chain of unbroken pregnancies acknowledges the mother was a daughter at one time. So the proceative/gestational relationship is not rejected and the only assumption is removal of time constraints so we can exchange the spatial & birth order relationships between the two contested human beings.

Should that change the moral basis of the mother's person, by exchanging places with the daughter?

One would reasonably say no - it shouldn't and that's precisely my point: to claim it would change the moral basis would be a circular argument (and reveal the personhood begging schism) because the claimed abortion "right" shouldn't change no matter who was in the womb.

So far we've run into two problems:
1. The abortion choice position begs the question by assuming a rationale based upon a non-sequitur and in so doing they reject the metaphysical basis of their own personhood - the natural human procreative/gestational process.
2. They beg the question again by assuming a definition of personhood that cannot logically exist in the world of living, propogating humanity.

I know - that's some deep thinking, so let me clarify: As human beings we don't morally possess the right to redefine the personhood of any other other human being because such redefinition can be applied to yourself as a human being. It subjects humans and is circular. For logicians out there - whole (intrinsic or universally true) human beings cannot be declared non-whole, (partial or universally false) human beings. That's self refuting, like saying TRUE is FALSE.

c. Non-intrinsic objections

Some say I'm begging the question on two points:
1. I'm simply assuming the unborn is a person.
2. I'm also assuming that development is non-essential.

On the first point I provided three solid reasons: substance, relationship and conception/gestational process. As each of us is that human substance, have those relationships and have undergone that pro-creative process, these are morally essential to all human persons. Conversely, as you cannot remove one of these without completely eliminating the human being, they must also be intrinsic to the human person.

On the second point, it might be said "You have a human organism, but it's not a person until it has developed sentience and a thinking mind state". So this abortion-choice view of personhood assumes state of mind is an essential consideration of personhood, such that without it, a human being can be considered a non-person. Restated: to be considered a whole human being, the mind-state of a whole human being must be present.

Let's try removing a person's mind-state to see if we can still have a human being, and to make it fun, let's use Rene Descarte (Cogito ergo sum "I think, therefore I am" ). If Decartes was knocked unconscious, would he have ceased to be a person? Well, as far as we could tell, he wasn't thinking, so therefore he wasn't! Not really. ;-)

How about this one: If you weren't mentally aware of your birth at the time of your birth, then how can you ever claim you were born?

Expected functioning of the mind is not a necessary pre-condition for human personhood. To make the matter completely clear - Terri Schiavo was still considered a person by Pinellas County, the State of Florida and The United States of America even though her mind ceased its normal functioning, otherwise legal matters would not have been initiated on her behalf.

Often mind functioning and official identification, are assumed to be, but are not, essential to the intrinsic nature of a human person.

In Lileigh's case, the legal reasoning for a human to be officially identified as being born, (and duly recorded as such), is to ensure there was an observable relationship between official charges and specific bodies. Birth is an official identification by the state for record keeping purposes, but was not the first acknowledgment of her being. Due to medical practice, pregnancy is an official diagnosis that must be declared by a licensed official physician of the state. That's the first official state acknowledgment of Lileigh as a human being, and rightly a more just point of official identification. In Leleigh's case, the fact that there was not an official identification of her person prior to her birth doesn't mean she wasn't one.

Official identification of Brain functionality doesn't redefine personhood
Official identification of brain functionality is based on the inherent characteristics of the whole human person. Borrowing a piece from Scott Klusendorf's observations of the UDDA - death is the irreversible cessation of all functions of the entire brain, including the brain stem. In other words, no further development is going on.

Given the live, nascent growing form of the embryonic brain and that we don't reject/redefine the personhood of any born human based on stages of development, the abortion-choice advocate assumes what they are trying to prove - for the unborn to be considered a whole human being, their idea of the mind-state of a whole human being must be present. They beg the question.
As development occurs in some manner equally among all human beings, it therefore cannot be a differentiating factor in this moral equality contest.

So do human beings possess the right to redefine the personhood of other human beings?

Clearly the answer is no, not without doing something horrible to their own sense and understanding of humanity, and thereby entering a realm of circular, self-refuting logic.

d. Metaphysical Summary

Okay - let's ask once more that 1st critical question:

Are the two beings equal on every morally relevant point to decide this contest?

Only if you rationally accept the view of a human being in all stages of life, including pre-natal, is a person of human substance that is a full-fledged related member of the human community, who is subject to every other moral consideration we respect. There simply is no such thing as human non-persons, but that path - of declaring others as such, is historically cruel, and becomes a distortion of human morality. 

Therefore: Yes - the two human beings are morally equal with regard to their metaphysical standing.

The scope of that moral consideration is the subject of the next part: Morality: Agency - Rights and Responsibilities