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Infanticide, moral status and moral reasons:
the importance of context
Leslie Francis,
1
Anita Silvers
2
1
S J Quinney College of Law,
University of Utah, Utah, USA
2
Department of Philosophy,
San Francisco State University,
San Francisco, USA
Correspondence to
Dr Leslie Francis, University of
Utah, S.J. Quinney College of
Law, 332 S. 1400 E., Room
101, Salt Lake City, UT 84112,
USA;
francisl@law.utah.edu
Received 12 June 2012
Revised 30 October 2012
Accepted 30 November 2012
To cite: Francis L, Silvers A.
J Med Ethics 2013;39:
289–292.
ABSTRACT
Giubilini and Minerva ask why birth should be a critical
dividing line between acceptable and unacceptable
reasons for terminating existence. Their argument is that
birth does not change moral status in the sense that is
relevant: the ability to be harmed by interruption of
one’s aims. Rather than question the plausibility of their
position or the argument they give, we ask instead
about the importance to scholarship or policy of
publishing the article: does it to any extent make a novel
or needed addition to the literature? Giubilini and
Minerva’s argument is remarkably similar to one
advanced by Michael Tooley in ‘Abortion and
Infanticide,’almost 40 years ago. There have been
immense changes in the intervening 40 years: in the
ability to diagnose conditions early in pregnancy, in
genetics and in the availability of in vitro fertilization; in
understanding of the capabilities of persons with
disabilities; in law; in economic support and access to
healthcare for pregnant women and their children; in
social customs and arrangements; and even in
philosophy, with developments in feminist thought,
bioethics and cognitive science. Some of these changes
have been for the better, but others, such as the
unravelling of social safety nets, have arguably been for
the worse. Any or all of these changes might give rise to
moral reasons for the relevance of birth that were not
available 40 years ago. These changes might also be
relevant to the identification of cases, if any, in which
‘after-birth abortion’might be considered. If context is
relevant to the applicability of moral reasons—as for
theorists of justice in the non-idealised world it surely
should be—it is questionable whether a view of the
birth-line that ignores contextualising change can be
adequate.
In ‘After-birth abortion: why should the baby live?’
Giubilini and Minerva ask why birth should be a
critical dividing line between reasons that are
acceptable for terminating existence and reasons
that are not. To advance this ‘birth-line’challenge,
they argue that reasons that are taken to make pre-
birth termination ethically permissible apply
equally post birth in the immediate postnatal
period. The article, in an e-publication ahead of
print, has sparked intense debate about the position
it advances and the role of freedom of expression
in a scholarly journal. In this comment, we take
another approach to the controversy about the
Giubilini and Minerva article by engaging directly
with one of the editor’s stated justifications for
publishing it: that it ‘extend(s) the long running
debate’in a manner that is ‘relatively novel’.We
challenge this scholarly justification for the article’s
publication (does it to any extent make a novel or
timely contribution to the literature?), and with
this challenge we also cast doubt on the value of its
arguments.
It is 40 years now since Michael Tooley authored
‘Abortion and Infanticide’.
1
In that article, Tooley
presented the birth-line challenge in very much the
same way that Giubilini and Minerva do. Giubilini
and Minerva argue that the pre-birth fetus and the
newborn infant have the same moral status. In their
view, neither is a ‘person’in the sense that matters
ethically and neither would be damaged by a loss
of the potentiality for becoming a person.
This is so, they contend, because a necessary
condition for having a right to something is being
harmed by a decision to deny that thing. A neces-
sary condition for having the right to life is being
harmed by denial of life and the coincident loss of
personhood. But an individual is only harmed by
denial of life if it is capable of having aims that are
interrupted by the ending of life. Fetuses and new-
borns do not have aims in this sense, according to
Giubilini and Minerva, although they surely feel
pain and have a multitude of other experiences to
the extent made possible by their level of neuro-
logical development.
Although they cite the Tooley article for the view
that being in a position to be harmed is necessary
for the right not to be harmed in a particular way,
Giubilini and Minerva do not lay out Tooley’s full
argument, which is remarkably similar to their
own. Both equate personhood with moral status
and view the moral status in question as having a
right to life (in Tooley’s case, ‘a serious right to
life’). Both take the actual capacity for a certain
type of experiencing as critical to the right to life:
in Tooley’s case the capacity for experiencing and
desiring to continue to exist as a subject of experi-
ences is the critical aim and for Giubilini and
Minerva it is the more general capacity for having
aims. Importantly for the purposes of whether
their article is a novel scholarly contribution,
Giubilini and Minerva do not explain what might
be different about their view from the view Tooley
put forth so many years ago. Like Tooley, they
locate the success or failure of drawing a line at
birth—or for that matter, drawing a line anywhere
else—in a particular view of moral status. Other
views of moral status, or a myriad of other moral
reasons, might warrant drawing lines at birth or at
some other point, might weigh against drawing any
lines at all, or might caution that despite its appar-
ent theoretical arbitrariness for other moral reasons
a line must be drawn somewhere.
Nor do Giubilini and Minerva consider whether
events in the ensuing 40 years since Tooley wrote
might affect the argument. Giubilini and Minerva
Francis L, et al.J Med Ethics 2013;39:289–292. doi:10.1136/medethics-2012-100767 289
The argument
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are clear that their argument is meant to address cases in which
the reasons that might have supported abortion during preg-
nancy become apparent only, and immediately, after birth. But
what these cases are, and what reasons might become apparent,
is in part a matter of social context. It is possible that advances
in medical knowledge and technology, and social and cultural
changes as well, make the relevant cases far different today than
they would have been in 1972. Medical accomplishments so
speculative as to be barely conceivable 40 years ago are routine
today, and social arrangements unthinkable in the past now
seem unexceptional. Understandings about obligations of inclu-
sive justice also have progressed: that individuals with certain
kinds of biological or social differences have the potential for
flourishing lives was inconceivable 40 years ago, but is a com-
monplace idea today.
For a theorist of justice as this evolves in the non-idealised
world, exploration of these differences and what reasons they
might provide is critical to whether lines at birth or anywhere
else can be theoretically justified. The point here includes but
goes beyond the so-called ‘empirical’slippery slope: that is,
whether as a matter of fact certain undesirable consequences are
likely to follow from stepping over a putative line. It is instead
whether there are defensible philosophical reasons for line
drawing with respect to a particular issue under given circum-
stances.
23
That is, for a non-ideal-world theorist, changes in
context can indicate changes in the moral reasons that might be
adduced as relevant in support of the birth-line. So perhaps the
justification for publication of the present article is that the
world has changed significantly since Tooley’s original article
appeared in print. If so, it is worth exploring the significance of
challenging the birth-line in these moral status terms given the
far different conditions of the world in which Tooley wrote.
Indeed the world has changed, in many ways: scientifically,
legally and politically, economically and even philosophically.
Surprisingly, however, these changes are virtually absent from
Giubilini and Minerva’s discussion. Whether any of these
changes in context provides reasons that undermine the birth-
line challenge is of course a further, but in our view the critical,
question.
At the time of Tooley’s original article, much of the science
and technology now standard for medical management of
reproduction and pregnancy did not exist or had not come into
widespread use. Genetic testing of potential parents, for
example for Tay–Sachs or cystic fibrosis carrier status, and con-
sequent recommendations about the wisdom of prospective
partners and parenthood, are creations of the period after
Tooley wrote; understanding of the biology of these and other
genetic diseases was just beginning in a manner that could
enable diagnosis and assessment of parental risk.
4
Amniocentesis and ultrasound for the diagnosis of fetal condi-
tions such as Down syndrome began notably to enter into
medical practice in the years just after ‘Abortion and Infanticide’
appeared.
56
In vitro fertilisation made its famous entrance in
the case of Louise Brown in 1978. Preimplantation genetic diag-
nosis postdates a meeting held at the Ciba Foundation in 1986.
7
With these and other similar technologies, it is possible to
diagnose fetal anomalies early in pregnancy—or even prior to
implantation—in a manner that was simply not available at the
time Tooley wrote. Giubilini and Minerva do note in passing
that this has had a significant effect on the type of cases for
which reasons become apparent only after birth, as many
fetuses with diagnosed disabilities are aborted. They do not con-
sider, however, whether with diminishing numbers of persons
with congenital disabilities it is more—or less—difficult for
these children and their parents to access services that might be
beneficial in enhancing their lives. Nor do they consider
whether in some cases at least responsibilities for failing to diag-
nose conditions before birth might affect the morality of after-
birth decisions.
To be sure, their argument is not meant to be limited to
disability-related reasons. They also consider the possibility that
a partner might die after birth, leaving a suddenly unbearable
burden of raising a child that cannot be alleviated by adoption.
But this is surely an unlikely and highly artificial case, especially
as the likely persistence of grief may be difficult to assess in the
immediate postnatal period. Nor is it likely that doctors would
comfortably consider such a distraughtly bereaved new mother
who requests elective termination of her healthy neonate to be
making competent judgments about the child’s best interests, or
even her own.
Giubilini and Minerva do not speculate about how quickly
after birth infants in their judgment might reach the intellectual
threshold necessary for the right to life. But developments in
medicine over the past 40 years have increased the occasions on
which humans can continue to live despite having brain injuries
sufficient to destroy whatever psychological capacities are sup-
posed to be crucial to moral status. And during these four
decades the same argument about ineligibility for the usual
moral and legal protections has been rolled out to defend denial
of life support, or even active euthanasia, for neonates and for
adults with severe brain injuries whose lives now are routinely
maintained by sophisticated medical technology.
Despite this important trend, and despite their call for con-
sistent response to the absence of the relevant psychological cap-
acity, Giubilini and Minerva continue to focus on the birth-line,
moving permissibility for termination from just below it to just
above it. They refuse to speculate how far past the birth-line it
might be before infants have the relevant psychological capaci-
ties, but seem to think that it might be relatively close and so
the extent to which infanticide is justified might be relatively
modest. They appear not to recognise, however, that their view
might be much more far reaching and that, on their view,
restricting permission for termination to just a cluster of relevant
cases around the birth-line will be difficult and perhaps even
impossible to justify. This is because, with current technology,
life can be maintained in human individuals of almost any
chronological age despite their having lost psychological capaci-
ties that afford moral status.
In light of such medical progress, initially no reason for pro-
hibiting termination of adult humans who lack the requisite psy-
chological capacities seems available to Giubilini and Minerva,
which suggests that their birth-line challenge should have no
age-related qualifier at all. However, the past 40 years have
brought important advances in understanding brain activity.
Perspectives gained from these advances in information about
the complex relation of brain activity to awareness might well
have shaken Giubilini and Minerva’s confidence in neurologists
and psychologists being able to correlate the capacity to experi-
ence aims with states of development or of decrement of the
human brain.
The world has changed legally as well. Roe v. Wade
8
was
decided just about a year after Tooley’s article appeared; before
that decision, abortion was illegal in the US except to save the
life of the mother in 30 states and significantly limited even in
states with more liberal abortion laws.
9
Doctors performing the
procedure risked criminal prosecution and loss of licensure.
Abortion became legal somewhat earlier in the UK, with passage
of the Abortion Act in 1967. The time period since has seen
290 Francis L, et al.J Med Ethics 2013;39:289–292. doi:10.1136/medethics-2012-100767
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abortion remaining intensely controversial and a gradual
retrenchment of the right. In 1990, the UK Human Fertilisation
and Embryology Act prohibited abortions after 24 weeks,
except when as a life-saving procedure for the mother, when
there was evidence of extreme fetal abnormality, or when neces-
sary to avoid a grave risk of physical or mental injury to the
woman. Tooley wrote in a world of backroom abortions, legal
and medical risks, and advocacy for women’s rights.
The legal and professional background about infanticide has
also changed. Duff and Campbell’s description of practices of
letting die in the newborn nursery appeared in 1973.
10
The
USA Rehabilitation Act was passed in 1973 and the ‘Baby Doe’
regulations prohibiting disability discrimination in the provision
of newborn care in facilities receiving federal funding first
entered the scene in 1984, only to be struck down in the Bowen
decision
11
and to reappear as regulations protecting life at
almost all costs under the Child Abuse Prevention and
Treatment Act as ultimately constructed by Congress.
12
In this
regard, for example, the reduction over the past 40 years of
unfounded presumptions about the incapacities of individuals
with Down Syndrome to achieve flourishing lives is a beacon.
And the ‘Born Alive Infants Protection’Act of 2002
13
defines a
person for all US federal statutory and regulatory purposes to
include any ‘born alive’infant at any stage of development, who
after being completely expelled from the mother breathes, has a
beating heart, has a pulsation of the umbilical cord, or has
movement of voluntary muscles.
Thus Giubilini and Minerva are writing in the context of a
history of initial exuberance about the recognition of abortion
rights that by now has steadily eroded to the point at which
abortion has become a practical impossibility in some jurisdic-
tions. They are also writing against a background in which
letting infants with disabilities die, a comparatively common
medical practice even in 1972, now receives at least formal legal
condemnation except in cases in which prolonged treatment
would be ‘virtually futile’and ‘inhumane’.
14
And they are
writing against a background in which, in USA federal law at
least, the legal line for birth has been pushed back very far. The
world of 1972 was an anti-abortion world but in many respects
also a world in which professional judgments of what lives were
worth living passed unquestioned. The world of 2012 is increas-
ingly a world of right-to-life pressures. Discriminatory stereo-
types about the quality of life of people with disabilities and
discrimination against people with disabilities were apparent in
the world of 1972 but despite major developments in the inter-
national and domestic statutory law of disability discrimination
remain widespread today. Whether the presence of discrimin-
ation and the forms that it takes are reasons for line drawing, or
reasons against doing so, is absent from Giubilini and Minerva’s
analysis.
The world has also changed economically. Among the reasons
cited by Giubilini and Minerva as justifying parental choice are
the economic hardships of raising a child. Here, the world may
have changed significantly for the worse, at least in the USA and
the UK. In 1972, 9.3% of families in the USA lived in poverty;
in 2011, 11.7% did. Of poor families in 2011, just over half
were headed by women; in 1972, the corresponding rate was
just over 40%.
15
In the UK, according to a highly influential
Parliamentary Report, 7% of children were in single parent fam-
ilies in 1972, a rate that had risen to 25% by 2003. The per-
centage of children in poverty rose steadily in the years from
1980 onward to an estimated peak of 34% in 1996; in 2003,
an era of relatively full employment, it remained at 28%.
16
This
Report was used as a basis for the Labour Government’s efforts
to address child poverty in the UK, now under reconsideration
in the Social Justice Strategy of the Coalition Government.
17
At
present, the US and the UK anti-poverty strategies favour work
over welfare, a strategy that, depending on its implementation,
may be highly burdensome for single parents with young
children.
There are of course many explanations for these poverty sta-
tistics, including changing demographics, changing benefits
structures and changes in divorce laws. But the background eco-
nomic picture is comparatively clear: families with young chil-
dren, especially single-parent families with young children, are
doing much worse in 2012 than they were in 1972, and their
prospects for improvement do not seem particularly bright.
Unpredicted poverty, it therefore seems, could be the new dis-
ability insofar as the burdensomeness of an infant’s being yet
another mouth to feed could be as much a concern to an unex-
pectedly impoverished parent as an unpredicted health issue can
be. And just as being disabled is purported to depreciate
people’s quality of life, as measured on such scales as Quality
Adjusted Life Years or Disability Adjusted Life Years, so being in
straitened circumstances may do so as well and therefore should
be amenable to assessment on a similar scale. One apparent
response to the expansion of poverty might be that reasons for
permitting either abortion or infanticide have only strengthened.
But the conclusion might also go the other way: that policies
encouraging either practice fail to recognise unjust burdens
borne by many—children and prospective children, and parents
and prospective parents alike. And, indeed, in 1973 Mary Anne
Warren, with whom Giubilini and Minerva agree about neo-
nates’lack of moral status, proposed that infanticide might be
permissible in societies so impoverished that the infants continu-
ing to live endangered the lives of older individuals, but not so
in contexts where adoptive parents or state institutions can be
made available to raise them. Further, according to Warren,
infanticide is classified as homicide because of the conceptual
context: this is the most appropriate classification the existing
legal system offers to match society’s condemnation of such a
practice.
18
Finally, the world has changed philosophically. In 1971, John
Rawls published A Theory of Justice, work which assumed but
did not question the family and which left non-ideal theory
aside. Although antedated by Simone de Beauvoir’sThe Second
Sex published in 1952 and a variety of popular writings in
support of ‘women’s liberation’, contemporary work in feminist
philosophy had barely begun by 1972. For example, the entry
‘Topics in Feminism’in the Stanford Encyclopaedia of
Philosophy has almost no bibliographical entries before 1972
and dates the first anthology to that year.
19
Disability theory—
including distinctions affecting quality of life judgments such as
that between the medical and social models of disability—
emerged even later. And there is of course much more, includ-
ing the wealth of philosophically relevant work in neuroscience
and cognitive science. All this is absent from Giubilini and
Minerva’s piece, however.
Whether these changes in science, law, economic life, or phil-
osophy diminish the importance of the moral status argument
for challenging the birth-line, or support drawing other lines or
no lines altogether is of course not an easy matter, but it is a
critical one. What is surprising to us is a paper seemingly
without any acknowledgement that these changes in context just
might be important in the conceptual understandings or the
moral reasons they provide. It is hard to see what is gained in
regard to scholarly understanding of permissions and prohibi-
tions to terminate human life when discussion distances
Francis L, et al.J Med Ethics 2013;39:289–292. doi:10.1136/medethics-2012-100767 291
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consideration of the conditions under which such lives actually
will be lived so completely and apparently without recognition.
Giubilini and Minerva’s paper does not advance the debate
beyond where it stood 40 years ago because they fail to take
into account intervening developments that might affect
whether there are cases, and if so what cases these are, to which
people in an evolved social and legal context find it thinkable
that the argument applies.
Contributors LS and AS are full and equal contributors to the article.
Competing interests None.
Provenance and peer review Commissioned; externally peer reviewed.
REFERENCES
1 Tooley M. Abortion and infanticide. Philos Public Aff 1972;2:37–65.
2 LaFollette H. Living on a slippery slope. J Ethics 2005;9:475–99.
3 Van Der Burg W. The slippery slope argument. Ethics 1991;102:42–65.
4O’Brien JS, Okada S, Chen A, et al. Tay-Sachs disease—detection of heterozygotes
and homozygotes by serum hexosaminidase assay. NEJM 1970;283:15–20.
5 Epstein CJ. Review, prenatal diagnosis of genetic disorders. Adv Intern Med
1975;20:325–44.
6 Friedman JM. Legal Implications of amniocentesis. Pa Law Rev 1974;123:92–156.
7 Whittingham DG, Penketh R. Prenatal diagnosis in the human pre-implantation
period. Meeting held at the Ciba Foundation on the 13th November 1986. Hum
Reprod 1987;2:267–70.
8 Roe v. Wade, 410 U.S. 113 (1973).
9 Braunstein LP. Note: abortion except to save life of mother unconstitutional. Tulane
Law Rev 1973;47:1159–67.
10 Duff R, Campbell A. Moral and ethical dilemmas in the special-care nursery. N Engl
J Med 1973;289:890.
11 Bowen v. American Hospital Association, 476 U.S. 610 (1986).
12 Silvers A, Francis LP. Playing god with baby doe: quality of life and unpredictable
life standards at the start of life. Georgia State Univ Law Rev 2009;25:1061–95.
13 1 U.S.C. § 8 (2012).
14 45 C.F.R. § 1340.15(2) (2012).
15 United States Census Bureau. Historical Poverty Tables. Table 13. http://www.
census.gov/hhes/www/poverty/data/historical/hstpov13.xls (accessed 17 Dec 2012).
16 House of Commons, Work and Pensions Committee. Child Poverty in the UK. 2003.
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmworpen/85/85.pdf
(accessed 17 Dec 2012).
17 Secretary of State for Work and Pensions. Social Justice: Transforming Lives. 2012.
http://www.dwp.gov.uk/docs/social-justice-transforming-lives.pdf (accessed 17 Dec
2012).
18 Warren MA. On the moral and legal status of abortion. Monist 1973;57:43–61.
reprinted in Mappes TA, DeGrazia D, eds. Biomedical ethics. 4th edn. New York:
McGraw-Hill, Inc, 1996:434–40.
19 Haslanger S, Tuana N, O’Connor P. Topics in feminism. Zalta EN.ed. The Stanford
encyclopedia of philosophy (Winter 2012 Edition). Published 7 Feb 2003, revised
28 Nov 2012.
292 Francis L, et al.J Med Ethics 2013;39:289–292. doi:10.1136/medethics-2012-100767
The argument
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the importance of context
Infanticide, moral status and moral reasons:
Leslie Francis and Anita Silvers
doi: 10.1136/medethics-2012-100767
2013 39: 289-292 J Med Ethics
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