Fetuses do NOT have Rights

AND EVERYBODY KNOWS THIS

The anti-abortion right has traveled a long way on the wheels of a faulty premise. Furthermore, that this premise is inherently flawed is clear to everyone.

Namely, this false premise is the presumption that embryo/fetuses have rights.

They do not.

What about the second part of my thesis? That everyone knows that embryo/fetuses do not have rights. That’s not as straight forward a claim. Clearly, pro-choice advocates understand that embryo/fetuses do not have rights. They are just not necessarily skilled at articulating against the rhetorical constructs of “unborn babies have a right to live.” That’s an intentionally heavy, albeit misleading rhetorical formation.

Anti-abortion advocates, however, also know that embryo/fetuses do not have rights, though it’s very likely that they actively and sincerely try not to know this. Those who frame the issue may be more cynical in their approach. Sincere pro-lifers, on the other hand, are likely doing nothing more than embracing an attractive paradigm, the rights of the unborn, that justifies their moral position.

To understand this thesis, we must be clear on what a “right” is. There is no real, empirical thing called a right. Rights are social constructs. Specifically, a right is a social construct that defines the moral limits of those possessed of relatively greater power in their impositions on those with relatively less power. In our culture, rights are defined as being innate and equally endowed to all individuals. This is a simple, high school understanding of rights. Western democracy rejects the notion that certain classes of people are endowed with greater rights while other classes go without. Indeed, such a system is not really one of rights, but rather one of privilege. It is aristocratic, not democratic.

There is, however, one more element to rights that is not really elaborated in standard discussions, but of which we are all almost intuitively aware.

To explain this characteristic, let’s offer up a mental experiment.¹

First, let’s argue that I am a human being. As a human being, I have an inherent right to live. Let’s also admit that my right to live is no greater and no less than the right of anyone to live.  I believe/hope that everyone can agree to this fact.

Now, let’s suppose that I suddenly developed a terminal condition. The only treatment for this condition is a daily blood transfusion by you, the reader.

So, I have a universally recognized right to live. However, my ability to exercise this right to live is dependent upon you. Without your participation, I will die. Knowing this, would you say that you have a right to withhold this necessary treatment? Should you have the right to say “no”, that you do not wish to be imposed upon in such a manner? Furthermore, should the state then mandate that you give me the transfusion despite the fact that you do not wish to do so?²

I think the reader would have to admit that, though I will die without this treatment, it is within your rights to refuse. You may argue that it would be nice of you to offer the transfusion. Perhaps one could argue that following through with the transfusion would be the morally right thing to do. However, such a decision should not be forced upon the unwilling…even though the end result would be the nullification of my universally recognized right to live.

Now the parallels between this thought experiment and pregnancy are obvious and intentional, but what is really going on here?³

The underlying factor to this dilemma is the concept of autonomy. Rights are premised on the ability to identify and to clearly define individual autonomy. We must be able to clearly define the autonomous actor and the autonomy of the agent being acted upon before we can establish the validity of rights. Since this is sounding like a philosophy essay, we can summarize this position with the theorem, autonomy exists a priori to rights.

To say that I have a right to live is understood to mean that I have this right as an autonomous individual without having to trespass upon the autonomy of others. My right to live is contingent upon my autonomous capacity to live.

Now we can argue that others have certain responsibilities with regard to my exercise of rights. My right to live may be threatened or hampered by outside forces. If my right to live is hampered by the fact that I was hit by a car, for instance, we can argue that others around me have a moral responsibility to intervene even if doing so is an inconvenience. However, I do not have a right to someone else’s moral obligation. They have a right to refuse, even if doing so would be frowned upon by others.

Because of this, my right to live cannot be contingent upon the surrender of another’s rights as an autonomous individual. You may be in a moral dilemma knowing that my right to live is dependent upon your continued support, but the value consensus on this is that I have no right to any particular decision on your part. You have a right to choose the extent of your obligation to me as an autonomous individual. My autonomous rights cannot be expressed at the expense of another’s autonomous rights. If I am to exercise my right to live at your expense, some other factor would have to define you as either having no rights or as having less valuable rights than I. That is contrary to our cultural understanding of what rights are.

It’s understood that my rights end where your rights begin. Consequently, we must be able to clearly delineate where you end and I begin. That interstice defines the parameters of you and me as autonomous individuals. The most important boundary of selfhood, of autonomy, is one’s bodily integrity.  Rights are impossible without this distinction.

This is why fetuses do not have rights. For most of any given pregnancy, there is no such clear delineation between the bodily integrity of the embryo/fetus as an autonomous individual and the bodily integrity of the mother. The embryo/fetus is integral to the woman’s body. To suggest that an embryo/fetus has rights distinct from that of the woman despite the absence of bodily integrity is the same as saying that one’s pinky finger has rights distinct from the owner of the hand. It just makes no sense.

Which brings us to the second element of my thesis–that everyone knows that this is true. That we understand the a priori nature of autonomy to rights is made clear by the efforts on the part of anti-abortionists to contort their policy proposals to shape their premise that an embryo/fetus is the moral equivalent of a baby and, therefore, has the right to live. For instance, it’s understood by most anti-abortion pundits that exceptions to the embryo/fetus’s right to live should be made for instances of rape or incest. But if a fetus has a right to live, how can this exception be justified? Does the fetus inherit the sins of the father?

Upon reflection, if you really feel that a fetus has rights, this position is hard to justify–which may be why many of the new regressive anti-abortion laws no longer include exemptions for rape or incest. Yes, it’s unfortunate that you, as a woman, must carry your rapists baby to term, but it’s God’s will…even if you don’t believe in that particular God.

A more universally accepted exception is in the interests of the health and safety of the mother. Again, we must ask why? If the mother has the right to live and the embryo/fetus has a right to live, by what criterion do anti-abortionists determine that the right of the mother outweighs the right of the embryo/fetus? The answer is clear. We recognize that the mother is possessed of an established, recognized autonomy that is not true for the embryo/fetus. Therefore, the rights of the mother take precedence over the rights of the embryo/fetus.

So that complicates the paradigm, does it not? If we are going to claim that the embryo/fetus has rights, but those rights are not as inclusive as those of the mother, then we are stuck with trying to negotiate the extent of that inclusion. This equates to negotiating the extent to which the mother, upon conception (implantation? Ejaculation? When exactly do we start the debate?), must surrender her autonomy. So, upon conception, should the state mandate that the mother can no longer drink, smoke, eat tuna or shrimp? To what extent should the mother be held to account for the full term of her pregnancy? What should happen in the event of a miscarriage? If the embryo/fetus has rights, then should a miscarriage be treated the same as any death of an infant or a child?

What about support for the woman? Should the woman be required to provide health insurance for her embryo/fetus? Should she have the right to child support upon conception? Upon implantation? Upon ejaculation? Upon fetal pole cardiac activity? At what point does the embryo/fetus qualify for social services? Food Stamps (after all, she’s eating for two)? Welfare? If embryo’s/fetus’s have rights, these are legitimate conversations. If they sound ridiculous, that’s because the very notion of embryonic/fetal rights is ridiculous.

It is clear, under current social constructs of rights and moral obligation, if we are to declare that embryo/fetuses have rights, then we must conclude that the woman does not. Even if we are to declare that an embryo/fetus has some rights, we must then conclude that the woman has fewer. So long as the woman and her embryo/fetus are co-autonomous, any integral rights they may have must be defined in terms of that co-autonomy. There’s no getting around it.

In the end, this is really what the debate is all about–reducing or eliminating the rights of women. Defining embryos/fetuses as possessed of rights is nothing more than a rhetorical construction justifying regressive control of women’s bodies.

That women have the ability to become pregnant should be a status enhancer in any just society. Historically, however, this very capacity has been used as an excuse for men to exercise greater control over women’s bodies. Women have made the claim that they possess dominion over their own bodies, over their own autonomy and, thus, over securing their own rights. If you believe in this ideal of equal autonomy and rights for women, then recognizing the rights of women to make their own reproductive decisions must be integral to that position.

Fetuses do not have rights. We as a society can and should debate and define our moral obligations to the unborn, just as we do for everyone else. We should have a discussion about health care, clean environments, family leave, family support, education, housing, inequality–all factors that impose upon the mother and her unborn. This debate should, however, stop at imposing against the rights of autonomous women.

 

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1. I can’t take credit for this hypothetical. This experiment is a variation of one offered by Judith Jarvis Thomson in her essay A Defense of Abortion 1971.
2. We can further this thought experiment by offering that you must also incur the cost of the procedure.
3. The analogy is intentional, after all, the woman is literally sharing her blood with the embryo/fetus. This analogy, however, is not the focus of the argument. A counter-argument to this is analogy is that abortion is a direct action against the embryo/fetus, not the denial of an obligation. In the case of my hypothetical condition, you are passively contributing to my death by inaction. In the case of abortion, the mother and the provider are actively participating in the termination of the pregnancy and, presumably, the right of the embryo/fetus to live. This is a good point if this were a discussion about the morality of abortion. It is not. This essay is a discussion of rights as they relate to individual autonomy.