Books: Issues in Population and Bioethics
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Sam Vaknin >> Issues in Population and Bioethics
Clearly, life manifests, at the earliest, when an egg and a sperm
unite at the moment of fertilization. Life is not a potential - it is
a process triggered by an event. An unfertilized egg is neither a
process - nor an event. It does not even possess the potential to
become alive unless and until it is fertilized.
The potential to become alive is not the ontological equivalent of
actually being alive. A potential life cannot give rise to rights and
obligations. The transition from potential to being is not trivial,
nor is it automatic, or inevitable, or independent of context. Atoms
of various elements have the potential to become an egg (or, for that
matter, a human being) - yet no one would claim that they ARE an egg
(or a human being), or that they should be treated as such (i.e., with
the same rights and obligations).
The Right to be Born
While the right to be brought to life deals with potentials - the
right to be born deals with actualities. When one or two adults
voluntarily cause an egg to be fertilized by a sperm cell with the
explicit intent and purpose of creating another life - the right to be
born crystallizes. The voluntary and premeditated action of said
adults amounts to a contract with the embryo - or rather, with society
which stands in for the embryo.
Henceforth, the embryo acquires the entire panoply of human rights:
the right to be born, to be fed, sheltered, to be emotionally
nurtured, to get an education, and so on.
But what if the fertilization was either involuntary (rape) or
unintentional ("accidental" pregnancy)?
Is the embryo's successful acquisition of rights dependent upon the
nature of the conception? We deny criminals their loot as "fruits of
the poisoned tree". Why not deny an embryo his life if it is the
outcome of a crime?
The conventional response - that the embryo did not commit the crime
or conspire in it - is inadequate. We would deny the poisoned fruits
of crime to innocent bystanders as well. Would we allow a passerby to
freely spend cash thrown out of an escape vehicle following a robbery?
Even if we agree that the embryo has a right to be kept alive - this
right cannot be held against his violated mother. It cannot oblige her
to harbor this patently unwanted embryo. If it could survive outside
the womb, this would have solved the moral dilemma. But it is dubious
- to say the least - that it has a right to go on using the mother's
body, or resources, or to burden her in any way in order to sustain
its own life.
The Right to Have One's Life Maintained
This leads to a more general quandary. To what extent can one use
other people's bodies, their property, their time, their resources and
to deprive them of pleasure, comfort, material possessions, income, or
any other thing - in order to maintain one's life?
Even if it were possible in reality, it is indefensible to maintain
that I have a right to sustain, improve, or prolong my life at
another's expense. I cannot demand - though I can morally expect -
even a trivial and minimal sacrifice from another in order to prolong
my life. I have no right to do so.
Of course, the existence of an implicit, let alone explicit, contract
between myself and another party would change the picture. The right
to demand sacrifices commensurate with the provisions of the contract
would then crystallize and create corresponding duties and
obligations.
No embryo has a right to sustain its life, maintain, or prolong it at
its mother's expense. This is true regardless of how insignificant the
sacrifice required of her is.
Yet, by knowingly and intentionally conceiving the embryo, the mother
can be said to have signed a contract with it. The contract causes the
right of the embryo to demand such sacrifices from his mother to
crystallize. It also creates corresponding duties and obligations of
the mother towards her embryo.
We often find ourselves in a situation where we do not have a given
right against other individuals - but we do possess this very same
right against society. Society owes us what no constituent-individual
does.
Thus, we all have a right to sustain our lives, maintain, prolong, or
even improve them at society's expense - no matter how major and
significant the resources required. Public hospitals, state pension
schemes, and police forces may be needed in order to fulfill society's
obligations to prolong, maintain, and improve our lives - but fulfill
them it must.
Still, each one of us can sign a contract with society - implicitly or
explicitly - and abrogate this right. One can volunteer to join the
army. Such an act constitutes a contract in which the individual
assumes the duty or obligation to give up his or her life.
The Right not to be Killed
It is commonly agreed that every person has the right not to be killed
unjustly. Admittedly, what is just and what is unjust is determined by
an ethical calculus or a social contract - both constantly in flux.
Still, even if we assume an Archimedean immutable point of moral
reference - does A's right not to be killed mean that third parties
are to refrain from enforcing the rights of other people against A?
What if the only way to right wrongs committed by A against others -
was to kill A? The moral obligation to right wrongs is about restoring
the rights of the wronged.
If the continued existence of A is predicated on the repeated and
continuous violation of the rights of others - and these other people
object to it - then A must be killed if that is the only way to right
the wrong and re-assert the rights of A's victims.
The Right to have One's Life Saved
There is no such right because there is no moral obligation or duty to
save a life. That people believe otherwise demonstrates the muddle
between the morally commendable, desirable, and decent ("ought",
"should") and the morally obligatory, the result of other people's
rights ("must"). In some countries, the obligation to save a life is
codified in the law of the land. But legal rights and obligations do
not always correspond to moral rights and obligations, or give rise to
them.
The Right to Save One's Own Life
One has a right to save one's life by exercising self-defense or
otherwise, by taking certain actions or by avoiding them. Judaism - as
well as other religious, moral, and legal systems - accept that one
has the right to kill a pursuer who knowingly and intentionally is
bent on taking one's life. Hunting down Osama bin-Laden in the wilds
of Afghanistan is, therefore, morally acceptable (though not morally
mandatory).
But does one have the right to kill an innocent person who unknowingly
and unintentionally threatens to take one's life? An embryo sometimes
threatens the life of the mother. Does she have a right to take its
life? What about an unwitting carrier of the Ebola virus - do we have
a right to terminate her life? For that matter, do we have a right to
terminate her life even if there is nothing she could have done about
it had she known about her condition?
The Right to Terminate One's Life
There are many ways to terminate one's life: self sacrifice, avoidable
martyrdom, engaging in life risking activities, refusal to prolong
one's life through medical treatment, euthanasia, overdosing and self
inflicted death that is the result of coercion. Like suicide, in all
these - bar the last - a foreknowledge of the risk of death is present
coupled with its acceptance. Does one have a right to take one's life?
The answer is: it depends. Certain cultures and societies encourage
suicide. Both Japanese kamikaze and Jewish martyrs were extolled for
their suicidal actions. Certain professions are knowingly
life-threatening - soldiers, firemen, policemen. Certain industries -
like the manufacture of armaments, cigarettes, and alcohol - boost
overall mortality rates.
In general, suicide is commended when it serves social ends, enhances
the cohesion of the group, upholds its values, multiplies its wealth,
or defends it from external and internal threats. Social structures
and human collectives - empires, countries, firms, bands, institutions
- often commit suicide. This is considered to be a healthy process.
Thus, suicide came to be perceived as a social act. The flip-side of
this perception is that life is communal property. Society has
appropriated the right to foster suicide or to prevent it. It condemns
individual suicidal entrepreneurship. Suicide, according to Thomas
Aquinas, is unnatural. It harms the community and violates God's
property rights.
In Judeo-Christian tradition, God is the owner of all souls. The soul
is on deposit with us. The very right to use it, for however short a
period, is a divine gift. Suicide, therefore, amounts to an abuse of
God's possession. Blackstone, the venerable codifier of British Law,
concurred. The state, according to him, has a right to prevent and to
punish suicide and attempted suicide. Suicide is self-murder, he
wrote, and, therefore, a grave felony. In certain paternalistic
countries, this still is the case.
The Right to Have One's Life Terminated
The right to have one's life terminated at will (euthanasia), is
subject to social, ethical, and legal strictures. In some countries -
such as the Netherlands - it is legal (and socially acceptable) to
have one's life terminated with the help of third parties given a
sufficient deterioration in the quality of life and given the
imminence of death. One has to be of sound mind and will one's death
knowingly, intentionally, repeatedly, and forcefully.
II. Issues in the Calculus of Rights
The Hierarchy of Rights
The right to life supersedes - in Western moral and legal systems -
all other rights. It overrules the right to one's body, to comfort, to
the avoidance of pain, or to ownership of property. Given such lack of
equivocation, the amount of dilemmas and controversies surrounding the
right to life is, therefore, surprising.
When there is a clash between equally potent rights - for instance,
the conflicting rights to life of two people - we can decide among
them randomly (by flipping a coin, or casting dice). Alternatively, we
can add and subtract rights in a somewhat macabre arithmetic.
Thus, if the continued life of an embryo or a fetus threatens the
mother's life - that is, assuming, controversially, that both of them
have an equal right to life - we can decide to kill the fetus. By
adding to the mother's right to life her right to her own body we
outweigh the fetus' right to life.
The Difference between Killing and Letting Die
Counterintuitively, there is a moral gulf between killing (taking a
life) and letting die (not saving a life). The right not to be killed
is undisputed. There is no right to have one's own life saved. Where
there is a right - and only where there is one - there is an
obligation. Thus, while there is an obligation not to kill - there is
no obligation to save a life.
Killing the Innocent
The life of a Victim (V) is sometimes threatened by the continued
existence of an innocent person (IP), a person who cannot be held
guilty of V's ultimate death even though he caused it. IP is not
guilty of dispatching V because he hasn't intended to kill V, nor was
he aware that V will die due to his actions or continued existence.
Again, it boils down to ghastly arithmetic. We definitely should kill
IP to prevent V's death if IP is going to die anyway - and shortly.
The remaining life of V, if saved, should exceed the remaining life of
IP, if not killed. If these conditions are not met, the rights of IP
and V should be weighted and calculated to yield a decision (See
"Abortion and the Sanctity of Human Life" by Baruch A. Brody).
Utilitarianism - a form of crass moral calculus - calls for the
maximization of utility (life, happiness, pleasure). The lives,
happiness, or pleasure of the many outweigh the life, happiness, or
pleasure of the few. If by killing IP we save the lives of two or more
people and there is no other way to save their lives - it is morally
permissible.
But surely V has right to self defense, regardless of any moral
calculus of rights? Not so. Taking another's life to save one's own is
rarely justified, though such behavior cannot be condemned. Here we
have the flip side of the confusion we opened with: understandable and
perhaps inevitable behavior (self defense) is mistaken for a moral
right.
If I were V, I would kill IP unhesitatingly. Moreover, I would have
the understanding and sympathy of everyone. But this does not mean
that I had a right to kill IP.
Which brings us to September 11.
Collateral Damage
What should prevail: the imperative to spare the lives of innocent
civilians - or the need to safeguard the lives of fighter pilots?
Precision bombing puts such pilots at great risk. Avoiding this risk
usually results in civilian casualties ("collateral damage").
This moral dilemma is often "solved" by applying - explicitly or
implicitly - the principle of "over-riding affiliation". We find the
two facets of this principle in Jewish sacred texts: "One is close to
oneself" and "Your city's poor denizens come first (with regards to
charity)".
Some moral obligations are universal - thou shalt not kill. They are
related to one's position as a human being. Other moral values and
obligations arise from one's affiliations. Yet, there is a hierarchy
of moral values and obligations. The ones related to one's position as
a human being are, actually, the weakest.
They are overruled by moral values and obligations related to one's
affiliations. The imperative "thou shalt not kill (another human
being)" is easily over-ruled by the moral obligation to kill for one's
country. The imperative "thou shalt not steal" is superseded by one's
moral obligation to spy for one's nation.
This leads to another startling conclusion:
There is no such thing as a self-consistent moral system. Moral values
and obligations often contradict each other and almost always conflict
with universal moral values and obligations.
In the examples above, killing (for one's country) and stealing (for
one's nation) are moral obligations. Yet, they contradict the
universal moral value of the sanctity of life and the universal moral
obligation not to kill. Far from being a fundamental and immutable
principle - the right to life, it would seem, is merely a convenient
implement in the hands of society.
The Aborted Contract And the Right to Life
By: Dr. Sam Vaknin
The issue of abortion is emotionally loaded and this often makes for
poor, not thoroughly thought out arguments. The questions: "Is
abortion immoral" and "Is abortion a murder" are often confused. The
pregnancy (and the resulting fetus) are discussed in terms normally
reserved to natural catastrophes (force majeure). At times, the embryo
is compared to cancer, a thief, or an invader: after all, they are
both growths, clusters of cells. The difference, of course, is that no
one contracts cancer willingly (except, to some extent, smokers --but,
then they gamble, not contract).
When a woman engages in voluntary sex, does not use contraceptives and
gets pregnant - one can say that she signed a contract with her
fetus. A contract entails the demonstrated existence of a reasonably
(and reasonable) free will. If the fulfillment of the obligations in a
contract between individuals could be life-threatening - it is fair
and safe to assume that no rational free will was involved. No
reasonable person would sign or enter such a contract with another
person (though most people would sign such contracts with society).
Judith Jarvis Thomson argued convincingly ("A Defence of Abortion")
that pregnancies that are the result of forced sex (rape being a
special case) or which are life threatening should or could, morally,
be terminated. Using the transactional language: the contract was not
entered to willingly or reasonably and, therefore, is null and
void. Any actions which are intended to terminate it and to annul its
consequences should be legally and morally permissible.
The same goes for a contract which was entered into against the
express will of one of the parties and despite all the reasonable
measures that the unwilling party adopted to prevent it. If a mother
uses contraceptives in a manner intended to prevent pregnancy, it is
as good as saying: " I do not want to sign this contract, I am doing
my reasonable best not to sign it, if it is signed - it is contrary to
my express will". There is little legal (or moral) doubt that such a
contract should be voided.
Much more serious problems arise when we study the other party to
these implicit agreements: the embryo. To start with, it lacks
consciousness (in the sense that is needed for signing an enforceable
and valid contract). Can a contract be valid even if one of the
"signatories" lacks this sine qua non trait? In the absence of
consciousness, there is little point in talking about free will (or
rights which depend on sentience). So, is the contract not a contract
at all? Does it not reflect the intentions of the parties?
The answer is in the negative. The contract between a mother and her
fetus is derived from the larger Social Contract. Society - through
its apparatuses - stands for the embryo the same way that it
represents minors, the mentally retarded, and the insane. Society
steps in - and has the recognized right and moral obligation to do so
- whenever the powers of the parties to a contract (implicit or
explicit) are not balanced. It protects small citizens from big
monopolies, the physically weak from the thug, the tiny opposition
from the mighty administration, the barely surviving radio station
from the claws of the devouring state mechanism. It also has the right
and obligation to intervene, intercede and represent the unconscious:
this is why euthanasia is absolutely forbidden without the consent of
the dying person. There is not much difference between the embryo and
the comatose.
A typical contract states the rights of the parties. It assumes the
existence of parties which are "moral personhoods" or "morally
significant persons" - in other words, persons who are holders of
rights and can demand from us to respect these rights. Contracts
explicitly elaborate some of these rights and leaves others
unmentioned because of the presumed existence of the Social
Contract. The typical contract assumes that there is a social contract
which applies to the parties to the contract and which is universally
known and, therefore, implicitly incorporated in every contract. Thus,
an explicit contract can deal with the property rights of a certain
person, while neglecting to mention that person's rights to life, to
free speech, to the enjoyment the fruits of his lawful property and,
in general to a happy life.
There is little debate that the Mother is a morally significant person
and that she is a rights-holder. All born humans are and, more so, all
adults above a certain age. But what about the unborn fetus?
One approach is that the embryo has no rights until certain conditions
are met and only upon their fulfillment is he transformed into a
morally significant person ("moral agent"). Opinions differ as to what
are the conditions. Rationality, or a morally meaningful and valued
life are some of the oft cited criteria. The fallaciousness of this
argument is easy to demonstrate: children are irrational - is this a
licence to commit infanticide?
A second approach says that a person has the right to life because it
desires it.
But then what about chronic depressives who wish to die - do we have
the right to terminate their miserable lives? The good part of life
(and, therefore, the differential and meaningful test) is in the
experience itself - not in the desire to experience.
Another variant says that a person has the right to life because once
his life is terminated - his experiences cease. So, how should we
judge the right to life of someone who constantly endures bad
experiences (and, as a result, harbors a death wish)? Should he better
be "terminated"?
Having reviewed the above arguments and counter-arguments, Don Marquis
goes on (in "Why Abortion is Immoral", 1989) to offer a sharper and
more comprehensive criterion: terminating a life is morally wrong
because a person has a future filled with value and meaning, similar
to ours.
But the whole debate is unnecessary. There is no conflict between the
rights of the mother and those of her fetus because there is never a
conflict between parties to an agreement. By signing an agreement, the
mother gave up some of her rights and limited the others. This is
normal practice in contracts: they represent compromises, the
optimization (and not the maximization) of the parties' rights and
wishes. The rights of the fetus are an inseparable part of the
contract which the mother signed voluntarily and reasonably. They are
derived from the mother's behaviour. Getting willingly pregnant (or
assuming the risk of getting pregnant by not using contraceptives
reasonably) - is the behaviour which validates and ratifies a contract
between her and the fetus. Many contracts are by behaviour, rather
than by a signed piece of paper. Numerous contracts are verbal or
behavioural. These contracts, though implicit, are as binding as any
of their written, more explicit, brethren. Legally (and morally) the
situation is crystal clear: the mother signed some of her rights away
in this contract. Even if she regrets it - she cannot claim her rights
back by annulling the contract unilaterally. No contract can be
annulled this way - the consent of both parties is required. Many
times we realize that we have entered a bad contract, but there is
nothing much that we can do about it. These are the rules of the game.
Thus the two remaining questions: (a) can this specific contract
(pregnancy) be annulled and, if so (b) in which circumstances - can be
easily settled using modern contract law. Yes, a contract can be
annulled and voided if signed under duress, involuntarily, by
incompetent persons (e.g., the insane), or if one of the parties made
a reasonable and full scale attempt to prevent its signature, thus
expressing its clear will not to sign the contract. It is also
terminated or voided if it would be unreasonable to expect one of the
parties to see it through. Rape, contraception failure, life
threatening situations are all such cases.
This could be argued against by saying that, in the case of economic
hardship, f or instance, the damage to the mother's future is
certain. True, her value- filled, meaningful future is granted - but
so is the detrimental effect that the fetus will have on it, once
born. This certainty cannot be balanced by the UNCERTAIN value-filled
future life of the embryo. Always, preferring an uncertain good to a
certain evil is morally wrong. But surely this is a quantitative
matter - not a qualitative one. Certain, limited aspects of the rest
of the mother's life will be adversely effected (and can be
ameliorated by society's helping hand and intervention) if she does
have the baby. The decision not to have it is both qualitatively and
qualitatively different. It is to deprive the unborn of all the
aspects of all his future life - in which he might well have
experienced happiness, values, and meaning.
The questions whether the fetus is a Being or a growth of cells,
conscious in any manner, or utterly unconscious, able to value his
life and to want them - are all but irrelevant. He has the potential
to lead a happy, meaningful, value-filled life, similar to ours, very
much as a one minute old baby does. The contract between him and his
mother is a service provision contract. She provides him with goods
and services that he requires in order to materialize his
potential. It sounds very much like many other human contracts. And
this contract continue well after pregnancy has ended and birth
given.
Consider education: children do not appreciate its importance or value
its potential - still, it is enforced upon them because we, who are
capable of those feats, want them to have the tools that they will
need in order to develop their potential. In this and many other
respects, the human pregnancy continues well into the fourth year of
life (physiologically it continues in to the second year of life - see
"Born Alien"). Should the location of the pregnancy (in uterus, in
vivo) determine its future? If a mother has the right to abort at
will, why should the mother be denied her right to terminate the "
pregnancy" AFTER the fetus emerges and the pregnancy continues OUTSIDE
her womb? Even after birth, the woman's body is the main source of
food to the baby and, in any case, she has to endure physical hardship
to raise the child. Why not extend the woman's ownership of her body
and right to it further in time and space to the post-natal period?
Contracts to provide goods and services (always at a personal cost to
the provider) are the commonest of contracts. We open a business. We
sell a software application, we publish a book - we engage in helping
others to materialize their potential. We should always do so
willingly and reasonably - otherwise the contracts that we sign will
be null and void. But to deny anyone his capacity to materialize his
potential and the goods and services that he needs to do so - after a
valid contract was entered into - is immoral. To refuse to provide a
service or to condition it provision (Mother: " I will provide the
goods and services that I agreed to provide to this fetus under this
contract only if and when I benefit from such provision") is a
violation of the contract and should be penalized. Admittedly, at
times we have a right to choose to do the immoral (because it has not
been codified as illegal) - but that does not turn it into moral.