Ethics of Procreation and the Defense of Human Life: Contraception, Artficial Fertilization, and Abortion

6. Human Fetuses, Persons, and the Right to Abortion: Toward an Absolute Power of the Born?

179 6 Human Fetuses, Persons, and the Right to Abortion Toward an Absolute Power of the Born? f Preliminary Comments The Need for a Critical Discussion In his book Abortion in the Secular State: Arguments against§218 (hereafter ASS),1 the German legal philosopher Norbert Hoerster develops in a compact and systematic manner an argument that, in its various versions, has been discussed in the English-speaking world for some time.2 According to the argument, the traditional prohibition of the killing of unborn human beings cannot be based on rational arguments; rather , it is based on prejudices and taboos (especially religious taboos) that have developed over time. Moreover, a rational argument would clearly demonstrate the unsustainability in principle of such a prohibition. Norbert Hoerster has developed this argument, one that 1. Abtreibung im säkularen Staat. Argumente gegen den §218, (Frankfurt am Main: Suhrkamp, 1991). Cited as AAS. 2. Cf., e.g., M. A. Warren, “On the Moral and Legal Status of Abortion,” Monist 57 (1973), reprinted in The Problem of Abortion, 2nd ed., ed. J. Feinberg (Belmont, Calif.: Wadsworth Publishing, 1984), 102–19; M. Tooley, Abortion and Infanticide (Oxford: Oxford University Press, 1983); P. Singer, Practical Ethics, 2nd ed. (Cambridge: Cambridge University Press, 1993, 1999 reprint); B. Steinbock , Life before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992). 180   Injustices he believes to be convincing and evidently unassailable, in his book. Because Hoerster has taken the trouble to offer a clear presentation of arguments that are not in fact new, they merit discussion, rather than a simple rejection—an explanation for rejecting them, which is valid also for Peter Singer’s position (see note 2), should at least be offered. I will limit myself here essentially to Hoerster’s argument, along with the publications cited in the notes. Hoerster’s argument differs somewhat in content from Singer’s, and is formulated in a way both more detailed and less sensational. In my opinion, it is useful to limit an exemplary critical analysis to a version that is concrete and at the same time well stated and well known; for these reasons Hoerster’s book is more appropriate for such analysis. Another reason for discussing Hoerster’s position is that it is based on this important presupposition: that contemporary arguments for a limited liberalization of abortion (i.e., “indicational” limitations based on medical diagnoses or “term” limitations based on trimesters), which maintain a fundamental right to life for the unborn, are unsustainable and (according to Hoerster) hypocritical. Indeed, departing from the fact that the unborn possess in principle a right to life, it would be impossible to nevertheless seek to morally legitimize abortion in certain cases. For example, it would then be impossible to legitimize abortion in situations of conflict, where the right to the woman’s self-determination is at stake; it would also be impossible to hold that women who have an abortion should not be legally punished (with the exception of the classic case of a threat to the mother’s life, in which case there is a right to life versus a right to life). If Singer and Hoerster are correct on this point (that it is not sustainable, without falling into a serious inconsistency , both to recognize the right to life of the unborn and to allow some abortions)—and I believe they are—one can assume that sooner or later the public discus­ sion will inevitably tend in this direction, as well. This leads to the conclusion that those who want to legitimize abortions in some cases, must on principle and altogether deny the right to life of the unborn. A Resulting Position Hoerster’s thesis—which is the only intrinsically consistent position, it seems to me—then, includes the following (to which we will return Fetuses, Persons, and Right to Abortion   181 in more detail below): the human fetus (for simplicity’s sake Hoerster uses the term “fetus” rather than “embryo”) is—in accordance with current scientific knowledge—a member of the species homo sapiens (and therefore a “human individual”), but it is not a “man,” that is a person. Because the fetus is not a person, neither does it possess a right to life that exceeds that of other non-human living beings. The same also holds both for newborn infants with certain grave forms of handicap or psychological illness, and...