In most moral systems - including all major religions and Western legal methodologies - it is life that gives rise to rights. The dead have rights only because of the existence of the living. Where there is no life - there are no rights. Stones have no rights (though many animists would find this statement abhorrent).
Hence the vitriolic debate about cloning which involves denuding an unfertilized egg of its nucleus. Is there life in an egg or a sperm cell?
That something exists, does not necessarily imply that it harbors life. Sand exists and it is inanimate. But what about things that exist and have the potential to develop life? No one disputes the existence of eggs and sperms - or their capacity to grow alive.
Is the potential to be alive a legitimate source of rights? Does the egg have any rights, or, at the very least, the right to be brought to life (the right to become or to be) and thus to acquire rights? The much trumpeted right to acquire life pertains to an entity which exists but is not alive - an egg. It is, therefore, an unprecedented kind of right. Had such a right existed, it would have implied an obligation or duty to give life to the unborn and the not yet conceived.
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.
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.
Still, not every immoral act involving the termination of life can be classified as murder. Phenomenology is deceiving: the acts look the same (cessation of life functions, the prevention of a future). But murder is the intentional termination of the life of a human who possesses, at the moment of death, a consciousness (and, in most cases, a free will, especially the will not to die). Abortion is the intentional termination of a life which has the potential to develop into a person with consciousness and free will. Philosophically, no identity can be established between potential and actuality. The destruction of paints and cloth is not tantamount (not to say identical) to the destruction of a painting by Van Gogh, made up of these very elements. Paints and cloth are converted to a painting through the intermediacy and agency of the Painter. A cluster of cells a human makes only through the agency of Nature.
Surely, the destruction of the painting materials constitutes an offence against the Painter. In the same way, the destruction of the fetus constitutes an offence against Nature. But there is no denying that in both cases, no finished product was eliminated. Naturally, this becomes less and less so (the severity of the terminating act increases) as the process of creation advances.
Classifying an abortion as murder poses numerous and insurmountable philosophical problems.
No one disputes the now common view that the main crime committed in aborting a pregnancy – is a crime against potentialities. If so, what is the philosophical difference between aborting a fetus and destroying a sperm and an egg? These two contain all the information (=all the potential) and their destruction is philosophically no less grave than the destruction of a fetus. The destruction of an egg and a sperm is even more serious philosophically: the creation of a fetus limits the set of all potentials embedded in the genetic material to the one fetus created. The egg and sperm can be compared to the famous wave function (state vector) in quantum mechanics – the represent millions of potential final states (=millions of potential embryos and lives). The fetus is the collapse of the wave function: it represents a much more limited set of potentials. If killing an embryo is murder because of the elimination of potentials – how should we consider the intentional elimination of many more potentials through masturbation and contraception?
The argument that it is difficult to say which sperm cell will impregnate the egg is not serious. Biologically, it does not matter – they all carry the same genetic content. Moreover, would this counter-argument still hold if, in future, we were be able to identify the chosen one and eliminate only it? In many religions (Catholicism) contraception is murder. In Judaism, masturbation is "the corruption of the seed" and such a serious offence that it is punishable by the strongest religious penalty: eternal ex-communication ("Karet").
If abortion is indeed murder how should we resolve the following moral dilemmas and questions (some of them patently absurd):
Is a natural abortion the equivalent of manslaughter (through negligence)?
Do habits like smoking, drug addiction, vegetarianism – infringe upon the right to life of the embryo? Do they constitute a violation of the contract?
Reductio ad absurdum: if, in the far future, research will unequivocally prove that listening to a certain kind of music or entertaining certain thoughts seriously hampers the embryonic development – should we apply censorship to the Mother?
Should force majeure clauses be introduced to the Mother-Embryo pregnancy contract? Will they give the mother the right to cancel the contract? Will the embryo have a right to terminate the contract? Should the asymmetry persist: the Mother will have no right to terminate – but the embryo will, or vice versa?
Being a rights holder, can the embryo (=the State) litigate against his Mother or Third Parties (the doctor that aborted him, someone who hit his mother and brought about a natural abortion) even after he died?
Should anyone who knows about an abortion be considered an accomplice to murder?
If abortion is murder – why punish it so mildly? Why is there a debate regarding this question? "Thou shalt not kill" is a natural law, it appears in virtually every legal system. It is easily and immediately identifiable. The fact that abortion does not "enjoy" the same legal and moral treatment says a lot.