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Is a foetus or embryo the moral equal of a toddler, newborn or adult? Would it be as morally bad to harm or kill an embryo or foetus as it would be to harm or kill a three year old? Do embryos and foetuses have the same rights as adult human beings?

These questions are obviously central to debates about abortion. If abortion is the moral equivalent of infanticide, or the killing of a teenager or adult, this is a reason to make it illegal. We would never consider permitting the killing of toddlers, or paying doctors €450 to kill the toddlers of parents whose situations made child rearing very difficult. And if, for some reason, the view that toddlers are the moral equals of adults – that they have the same rights, that their lives and welfare are just as important – became a minority one, this wouldn’t change how that minority thought about this: they would still think it should be illegal to kill toddlers. 

Reasoning like this will sound jarring and uncompassionate to some pro-choice people – many of whom might think that the idea that foetuses and embryos are our moral equals is an absurd one, a kind of deeply implausible myth concocted by pro-lifers to justify impermissible restrictions on women’s bodily autonomy. 

So far, we have written a number of posts about pro-choice bodily autonomy arguments according to which abortion is wrong even if the human foetus or embryo is the moral equivalent of an adult or toddler – for example, our ‘conjoined twins’ post . But in this post, I’m addressing a second kind of pro-choice argument, according to which, although the foetus is a member of the human species, it is not a human person. 

Specifically, I’ll address the argument according to which it is not wrong to kill a human foetus if it is not conscious yet. What do I mean by conscious? For the purposes of this post, I’ll just assume that it means having a ‘minimal level of awareness of one’s surroundings’ whatever else it involves. (If it requires self-awareness, then newborns don’t seem to possess it either.) This is because at a certain level of development, it is undeniable that the preborn human has not yet developed even this minimal level of awareness – it’s no more aware of its surroundings than a piece of grass, or a brick. And if that is the case, why should we grant it any rights?

I remember asking this question myself, when I used to be pro-choice. At the time, I thought that being a member of the human species wasn’t something in virtue of which people had rights and equal moral status. I thought that it wasn’t enough. I thought that instead, you had to be a member of the human species who was or had been conscious at some point. I obviously changed my mind: here’s a very quick overview of some of the things that made me do so. 

  1. Coma patients

Coma patients seem to be unconscious, but we still think they are our moral equals. If we knew that a coma patient was unaware of their surroundings, and lacked thoughts or any internal ‘flow of consciousness’ at all, but we also knew that they would wake up in nine months, we would think it was wrong to kill them. If someone wanted to completely dismember them and use their organs for patients who needed transplants, or to dissolve their body in order to use it for important medical experiments, we would not allow them to: we would think that doing so would count as ‘killing a human being who has a right not to be killed’ even if the victim wasn’t conscious. 

Now, some people have told me that coma patients might have certain very minimal levels of consciousness – but this doesn’t really affect my argument. My argument hinges on the claim that if it turned out that one particular coma patient was genuinely completely unconscious, but we knew that they would wake up in nine months, it would be wrong to kill them. 

Similarly, imagine that scientists discovered that every night when you go to sleep, you were genuinely unconscious for a certain portion of that time. Would you think that it was any less bad to kill you in your sleep than when you woke up? I think not. 

To me, considerations like this are strong reasons to think that unconscious humans are the moral equals of conscious ones. 

  1. Babies in comas

One response to this is that it’s different when adults like us are unconscious because we used to be conscious, whereas the preborn have never been conscious at all. When we’re unconscious, it’s as if someone pressed the ‘pause’ button on a DVD: there was a person there before, and now it’s temporarily ‘stopped’ but it will start running again. On the other hand, when a foetus or embryo is unconscious, it hasn’t been put ‘on pause’, there was never any person there to put on pause to begin with. 

I don’t find this argument particularly convincing. The unconscious adult and the unconscious preborn child would both be equally unconscious now. They will also both become conscious again in the future, and a pro-choice person doesn’t think that potential consciousness is a reason to grant the foetus or embryo rights. But it just seems very strange and arbitrary to me to grant human beings rights because of the way they were in the past, while refusing to grant them rights because of the way that they will be in the future. This kind of pro-choice argument seems to require rejecting the claim that potential future consciousness is morally relevant, while maintaining that past consciousness is. To me anyway, this just seems weird. 

Whether or not you share this sense, saying that human beings are only our moral equals if they’ve been conscious in the past generates some unwelcome conclusions outside of the abortion debate. Imagine something happened so that a baby never developed any level of consciousness in utero and was born in a coma that would last nine months. Would it be less morally wrong to kill that baby than its twin sibling who was born perfectly healthy? Does the conscious baby have a right to life while the unconscious baby does not? Would it be less bad to kill the unconscious baby than it would be to kill an unconscious adult? Or a conscious adult? 

I think that most people, when they think about this, conclude that in this situation at least, maybe human beings do not need to be conscious in order to be deserving of equal moral status. I don’t expect anyone to change their minds about abortion based on this short ‘imagine if…’ scenario, but I do think that if you agree that you shouldn’t kill the unconscious newborn even though it is unconscious and has never been conscious, you can’t also claim that you can kill the embryo or foetus purely because it it is unconscious and has never been conscious: that is inconsistent.

You’ve got to find a relevant difference between the baby and the foetus or embryo and say that this difference explains why one has rights and the other does not. Some people have told me that the baby is different because even though its brain is not actually capable of making it conscious at the moment, it is the right shape, and has roughly the right composition, whereas the embryo or foetus doesn’t have anything resembling an adult brain at all. (While I won’t get into this, I am not sure why this matters so long as neither is actually conscious – it doesn’t matter what your non-functional brain is shaped like if it’s non-functional.) Others say that what makes the difference is the fact that the newborn isn’t dependent on any one individual person, or that it is loved more by other people, or can have relationships with people more easily now that they can see and hold it: being more independent and more liked means that the newborn has human rights. (Again, won’t get into this, but I honestly find this line of thought mildly horrifying – being dependent, alone and uncared for shouldn’t be something that can disqualify a being from having human rights.) 

Of course, you could just bite this bullet and say it’s alright to kill the cute unconscious newborn baby. 

To anyone who does this, I still have one final response. 

  1. Endorsing implausible claims 

This point is to do with the logic that underlies the position that I used to have, and that I think is still shared by many people. My current position is that

a. A living being has human rights if it is a member of the human species. 

My previous position was that

b. A living being has human rights if it is i) a member of the human species and ii) either was or is conscious (even though the fact that it will become conscious is not relevant to whether it has rights or not).

Now, a. just looks way more plausible to me than b. Why? 

A lot of people would think that a. is controversial: it relies on the idea that being a member of the human species grants you rights, that being a certain kind of thing gives you rights. It does not matter if you yourself are not conscious yet, or if you yourself can’t love other human beings or enter meaningful relationships with them yet, or if you are not rational or self-aware. You are the kind of thing that has those traits. For some people, this sounds strange and implausible. But b. also relies on this claim. 

This is because b. does not tell us that any living thing that is or was conscious has human rights. Otherwise, it would entail that any conscious living thing would have the same rights as a human being – that chickens, pigeons or conscious insects (if there are any) would have the exact same right to life as you or me. And it has to be said that this isn’t a position many people want to endorse. While plenty of people convincingly argue that the lives of animals matter and that we should treat them better, the vast majority of animal rights activists still think that it is worse to kill a human being than a chicken or pigeon.  (There are more sophisticated versions of this view on which the level or sophistication of your awareness and rationality determines how much your life and welfare matters – so on this view, you mightn’t give the insects or irrational animals human rights, but you might have to give newborns or humans with severe cognitive disabilities the same level of moral status as some of the more intelligent animals: a level lower than that of cognitively normal adults. So this sophisticated variant isn’t exactly palatable either.)

So, instead b. tells us that any living thing that is a human being and is or was conscious has human rights. So b., by specifying that you have to be human to have human rights, makes the same kind of controversial claim as a. – it says that you have rights in virtue of being a member of a certain kind  (a member of the human species).  Where it differs from a. is in saying that while being a certain kind of thing is necessary for having human rights, it isn’t sufficient. And then it claims that the second condition that you have to meet to have human rights is that you must either be conscious now or have been conscious in the past, while also claiming that having the potential to become conscious in the future isn’t enough to give you human rights.

So, b. doesn’t avoid any of the commitments that a. relied on, it merely requires you to endorse extra (weird) commitments on top of that one. If you have a problem with a. because it grants too much importance to species membership, you should have a problem with b., too. 

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There’s more that could be said about all of this – and more replies that could be made from both pro-choice and pro-life standpoints. But I hope that I’ve shown why I think the view that “in order to have human rights, you need to be a human being who is or once was conscious” turns out to be much, much less sensible than it initially appears to be. 

Ciara