Do Fetuses Have Rights?: A Review of "Choices, Interests, and Potentiality"

This post is a summary and evaluation of some of the arguments in “Choices, Interests, and Potentiality: What Distinguishes Bearers of Rights?” by Anna-Karin Margareta Andersson.

This paper presents itself as an investigation of the topic of rights and argues that (human) fetuses have rights yet never mentions abortion. And so this paper, under the guise of a philosophical discussion of what creatures have rights, is a thinly-veiled ideological attempt to discuss the abortion issue. This kind of ground my gears cuz if you want to write about the abortion issue just be open about it. There’s no need to cloak it in something else.

More things that grind my gears: First, it is as clear a case of motivated reasoning as you’ll find in academic literature. Second, the tone is one of thinly veiled smugness. Now, anyone who knows me knows that I can be smug as bug in a rug next to a pug but I try not to bring that into my professional writing. I try not to. Ok, enough with the ad hominems, lets check aus the actual arguments.

There’s only one semi-technical term you need to know: A rights bearer is a creature that has rights. Some people say that only humans have rights, some people say animals have rights, some people say both. Some people say that you have rights in relation to your capacities others say it’s in relation to your interests.  There are lots of views. Andersson suggests you have rights in virtue of an empirically verifiable property–although she defines this quite broadly. The main issue in this article is what types of creatures have rights and why.

This article really has two main parts. The first part is an argoomint for why we should restrict the scope of rights bearers. In short, we should be careful about extending rights too widely to all or most sentient beings because it will cause conflicts between rights bearers. Part two of the paper is an argoomint for why fetuses should have rights. We all agree that adult humans are paradigmatic cases of rights bearers. If adult humans in a temporary coma have rights then similar rights should be extended to fetuses because both are temporary not-fully-functioning adult humans.

Part 1: Allowing Too Many (Types of) Rights Bearers Will Cause Problematic Conflicts Between Different Groups of Rights Bearers
Andersson argues that if rights are granted to too many kinds of creatures then problematic conflicts between rights and rights bearers will occur and the end result will dilute the value of having rights and the rights themselves.

Argument 1
Part A: Some sets of rights will inevitably conflict. The more rights people have, the more likely the rights are to conflict. More importantly, the more creatures there are that have rights, the greater the chances of right conflicting. Anytime rights conflict, in order for the situation to be resolved someone or something’s rights will have to be over-ridden.  If rights are constantly being over-ridden then the “practical relevance” of being a rights bearer is diminished (p. 177).  It’s like, what’s the point of being accorded rights if they’re going to be frequently over-ridden anyway–even if you are compensated? The wider the scope of creatures that get rights, the greater the likelihood that rights will get over-ridden, and therefore the value of having rights declines. And that’s baaaaaaaaaaaaad!

Part A: For those of you keeping track of the critical thinking concepts, this argument commits the fallacy of argument from final consequences.  That is, you argue that something is false because you don’t like the consequences of it being true.  Because it’s an informal fallacy it only means that the argument is invalid and therefore inductive.  Inductive arguments can be strong or weak but their conclusions don’t necessarily follow and so they must be evaluated on a case by case basis.  Let’s not commit the fallacy fallacy.  We need to evaluate the argument…

The argument says that moral rights are limited only to a narrow class of creatures because extending rights to too many creatures causes excessive rights conflicts.  The problem here is that it very well might be true that many creatures do have rights and there will be many rights conflicts. Too bad, so sad. The conclusion would have some plausibility if the claim were normative, that is, that we ought to restrict rights to only a few types of creatures. But this isn’t the conclusion she argues for. Her thesis concerns “what subjects actually do have moral rights” (p. 175; my italics).  You can’t argue for what is the case from what you don’t like about the consequences of alternative possibilities. That’s like saying, “I don’t owe rent this month because if I pay rent I won’t be able to pop bottles in VIP”. Conclusion, I don’t own rent. QED.

Argoomint 1
Part B: We should also limit the scope of rights bearers because highly diverse creatures will have highly diverse rights. When the diverse rights come into conflict it will be difficult to figure out how to weigh one against the other. We’ll have to come up with some rules to adjudicate between disparate conflicting rights meaning some types of creatures will have systematically weaker rights than others.

Why should we label a large group of subjects “rights bearers” and systematically prioritize some types of rights bearers over others in case of rights conflicts, instead of reserving the term “rights bearers” for the prioritized subjects and entitle the other subjects to certain treatment when doing so does not compromise any rights? (p. 178)

In other words, what’s the point of using rights language if the rights of one group will always be trumped by those of another? Why not use a clearer terminology that actually reflects that one group’s rights will systematically trump another’s?

Part B: Man, I really really want to use some post-modernist critical theory goobly gook to make this next point. Something about institutional patriarchal power structures and penises betray Andersson’s post-colonial speciesism.  Setting that aside, Andersson makes an unwarranted assumptions causing her to beg the question.  Aside: When philosophers use the phrase “to beg the question” (which is the right way) it means that someone is assuming the very thing they are trying to prove. I.e., it’s a form of circular reasoning. Anyway, Andersson’s argument for restricting what creatures have rights only works if she assumes that the rights humans have systematically trump any and all rights that non-humans have–which is the exact conclusion she’s trying to argue for. As she says, there’s no point in extending rights to animals because every right that they have will be systematically trumped by any rights humans have. This is clearly false.

Suppose someone derives pleasure from torturing fluffy white kittens with really cute meows. His right to live according to his own conception of the good life doesn’t trump a fluffy white kitten’s right to live a life free from unnecessary cruelty.  The rights humans have don’t systematically trump the rights of all creatures. Sometimes the rights of other creatures trump ours. To show that they don’t would require an argoomint…

Part 2: Who Gotz Rights? 
What do hungry twins say when they’re still in the womb? Feed us! Feed us! (Thank you, I’ll be here all week).  Lets get down to bidniz.

In the first part of the paper we saw that Anderson wants to constrain what types of creatures are rights bearers. So who’s going to get rights? Dogs? Kittens? Bears? Apes? Give up? You’ll never guess: Adult humans and fetuses are rights bearers and non-human animals aren’t.  Lets see how she gets to this conclusion:

Argoomint 1
The plan is to identify a paradigmatic case of a rights bearer, figure out what it is about them that makes them a rights bearer, then see what other things have that special rights-bearer sauce.

VocaboolaryAgency is fancy-talk for being able to make reflective choices between alternative courses of action and to reflect on one’s preferences.

Let me put the argument into standard form then I’ll explain it in English:

(P1) Adults (humans) capable of exercising agency are paradigmatic examples of rights bearers.
(P2) Adults must be rights bearers because of some property that non-paradigmatic rights bearers don’t have.
(P3) All adults capable of exercising agency possess the physical constitution that is necessary for exercising agency. Call this physical property X.
(P4) Agents who are prevented by certain obstacles from exercising agency are still carriers of property X.  Call these obstacles to exercising agency Y.
(P5) If we can show that facing obstacle Y does not affect the adult’s status as a rights bearer because Y is a certain type of obstacle, we should accept that adults who face Y remain rights bearers in virtue of being carriers of X.
(C) By (P4) and (P5), adults who face Y remain rights bearers in virtue of being carriers of X.

Property X
Here are the important things to keep in mind: An adult is a rights bearer because an adult can exercise agency.  In order to have agency one must have a particular physical constitution (property X). That is, to have agency you need a brain that is organized such that you can make deliberative decisions.  So far so good.

Notice that being a rights bearer isn’t tied to actual behaviors but a capacity for behaviors (deliberative action).  Why? Because if we said that you’re only a rights bearer when you are making deliberative decisions then all the moments in between, like when you’re sleeping or staring at your phone, you are no longer a rights bearer. Losing your rights anytime you sleep or look at your phone isn’t a good result for a theory of rights.

With Andersson’s argument, agency is grounded in having a physical structure (property X) and so, when you’re sleeping you don’t lose your agency (since your brain structure doesn’t change in respect to being able to you being able act as an agent).  Obstacles to agency (condition Y) are times where the brain structures responsible for agency remain intact yet you temporarily can’t or don’t exhibit agency. For example sleeping, being in a temporary coma, or watching reality TV.  Under these and other similar conditions, you don’t lose your status as a rights bearer since you have property X (the brain structure required for agency) at all times.

So far we’ve said that rights bearers are creatures that have the physical structures necessary for agency. Creatures without these structures and who don’t have agency–even with nourishment, protection from disease and trauma won’t develop these structures. Did you notice the sneaky move yet? If not, I’ll explain it in a moment.

Condition Y:
Lets look at (P4) and (P5) because they’re (obviously) important.  (P5) is pretty uncontroversial so we’ll grant it. (P4)  says that when you temporarily cease to exercise agency you are still an agent so long as you actually possess the physical brain structure required for agency (I’m italicizing here for a reason).  To quote

The defining aspects are the physical properties that are necessary in order to be able to exercise agency.  There is no essential change in her defining aspects in the sense that the entire physical constitution of the subject that is necessary in order to exercise agency remains unaltered while she is in such a condition: [. . .] she remains a rights bearer while in such a condition [. . .]. (p. 180)

Has the quote caused condition Y in you yet? (Has it put you to sleep?). A few more things about condition Y: it must be a temporary condition that the subject will spontaneously relapse from.  In other words, if you suffer major brain trauma that permanently alters the structure of your brain such that you will no longer be able to exercise agency, you can lose your rights bearer status.

Here comes the tricky part! Who needs the Quickee Mart! So far we’ve said that condition Y (e.g., sleeping) is a temporary obscuring of your agency and you don’t lose your rights-bearer card under condition Y (e.g., sleeping). That’s because you still have the underlying physical structures for agency (property X).  Here’s the big move:

By saying that the subject is in a temporary state, I merely mean that the subject at some point will get out of the state: I do not require that she has been capable of agency at some previous occasion. (p. 181; my italics)

Now the sneaky move is more explicit.  Essentially, Andersson is going to draw an analogy between an adult who temporarily loses their agency and a fetus that temporarily doesn’t have agency. She’s going to say that both of these temporary states are condition Y because they’re both temporary.

Analysis: Disanalogy
There’s an important disanalogy: The adult actually has property X (the physical structure required for agency) but is temporarily impeded (by condition Y) from using it. Once the adult wakes up (i..e, once condition Y ends) he can exercise the agency that is undergirded by the relevant brain structure (property X) that he had all along. In the case of the fetus, the fetus doesn’t have the brain structure for agency. That is, the fetus doesn’t have property X–the property which Andersson claims is necessary for agency.

Notice that in the adult case we say that adults under condition Y maintain their right bearer status because they actually have property X. The fetus, however, doesn’t actually have property X. But Andersson’s whole argument for what makes a rights bearer a rights bearer relies on the assertion that one must actually have property X. The case of the adult under condition Y and the fetus under condition Y differ in this important respect. What confers rights-bearer status? Is it having property X or not? Whatever you think about the rights status of fetuses, this particular argument doesn’t support the conclusion it’s intended to support because it’s inconsistent in respect to what physical property confers rights-bearer status.

The problem for Andersson is that there’s an asymmetry between continuing to be an agent when one’s agency is temporarily blocked via condition Y and being treated as a full agent even though one has never in fact been one. The issue is: Should you be accorded some particular moral status (a) because of some property you will have at some point in the future or (b) because of properties you actually have. In previous sections Andersson argued for the latter and if it’s the latter then fetuses aren’t rights bearers but animals could be depending on what the magic right-bearing property is. If it’s the former, then fetuses are rights bearers. But Anderson didn’t argue for this “potential” claim– she argued for the latter. You are a right bearer in virtue of actual properties.

Andersson’s solution to this asymmetry is to argue that “there is no morally relevant difference between possessing the physical constitution necessary in order to exercise agency, and developing such constitution” (p. 182). That is, we ought to give equal moral consideration to (a) actually having a morally salient property and (b) being able to develop that property under normal conditions. Call this the equivalency principle. The burden of proof lies with Andersson to give us an argument for why what is merely potential ought to be given the same moral consideration as what is actual. Putting the two on par could lead to counter-intuitive results—especially if we generalize this principle to other areas of moral reasoning.

Suppose in the not too distant future biological markers are identified for paedophilic behavior. The marker is a necessary condition for paedophilic behavior. At 4 years old Bob is diagnosed with the known precursor to the biological marker for paedophilic behavior. Adult pathological murderers possess the physical constitution necessary in order to be a paedophile. Baby Bob will develop the physical constitution in order to become a paedophile. It follows from the equivalency principle that there is no morally relevant difference between adult paedophiles possessing the physical constitution necessary to act as a paedophile and Baby Bob developing such a constitution. We should treat both the same.

Doin’ The Two Step
There’s a way for Anderson to respond. She can say that to determine whether a creature is a rights bearer and how many rights it has is a two-step process. Step one is to determine whether something is or isn’t a rights bearer. If something has the potential to develop agency then it’s a rights bearer. If it doesn’t have the potential for agency (via having the potential to have property X) then it isn’t an agent. Once you’ve decided whether it’s a rights bearer you decide which rights that creature has relative to how close it is to developing full agency (i.e., having property X). For example, as a child comes closer to developing full agency, it gets more and more rights. This line of reasoning seems to conform with Andersson’s thoughts: “The content of the rights [fetuses] are owed vary depending on their developmental level” (p. 184).

Suppose we accept this account. There are still problems. If fetuses gain rights depending on their developmental level then it appears that the content of particular rights is grounded in particular capacities (which are themselves grounded in physical structures). We might say that a child has a right to be free from unnecessary suffering because it has the capacity to suffer (because it has a central nervous system). But if a child gets this particular right in virtue of a particular capacity and structure, it seems inconsistent not to extend this particular right to every other creature that has this capacity/structure. To avoid this problem Andersson can argue that fetuses come into the world with all their rights but not only is this implausible but she denies it herself.

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