[Vision2020] Credibility: Roger's and Mine

[nickgier at adelphia.net]

Hi Roger:

I'm afraid that you are confused about the relationship between law and morality. Generally speaking, criminal law is derived from moral laws.  But only in theocracies does everything immoral become illegal. 

Just because conception is a "clearer" cut-off point (it actually isn't as I have argued) just not make the one that we ought to use.  You have to give a better argument than that.

You say "you would be on more solid ground it you stuck to physiology," but that is only half the solution. Biology alone, either an appeal to human DNA in general or unique genetic identity, does not confer moral or legal status.  That why I combine English Common Law, accepting a definition of a human person that goes back to Aristotle, with the facts of fetal brain development.

You are not correct to say that only a human conceptus will develop into person, because I believe that chimps, bonobos, gorillas, whales, and dolphins have significant mental lives and should be accorded the status of persons.

You do, however, appeal to the "potentiality principle" with regard to abortion, but I have found that it does not work for the pro-life position. But even if my arguments do not work, you would still have to recognize all conceptuses of all the higher animals mentioned above as persons.

Appropriate passages on the "potentiality principle" from my article are appended below for your perusal.

Thanks for the dialogue,

Nick

Nick 

I have never said that conception was a legal cur-off point. Legality can never 
be a bases for morality as I have previously pointed out. It is just a clearer 
demarcation point than anything else, even though it can very from the sex act and you pointed out.  You would be on more solid ground it you stuck to 
physiology. 

The qualities of a human fetus is different from that of an animal in that it 
has the potential of developing into a human. An animal fetus does not have that potential. 

Roger 

Excerpt from "Abortion, Persons, and the Fetus" at www.class.uidaho.edu/abortion.htm.

Although it is clear that conservatives fail in their attempts to ascribe personhood to the conceptus, we must concede that the fetus from conception on is a potential person. Aquinas was actually quite near the truth that human fetuses are mere "sensitive" souls until late in pregnancy. As we have seen, the neocortical brain development necessary for a beginning person commences in the third trimester. 

Even though the fetus is only an animal until this time, it is significant that the human fetus is the only animal which, as far as we know, develops into a person. [I now reject this position, because of the significant mental lives of chimps, bonobos, gorillas, whales, and dolphins.]They are the only fetuses that are potential persons. To argue that it is morally wrong to take the life of a potential person is to use what Michael Tooley calls the "potentiality" principle. The arguments which Tooley and Engelhardt muster against the potentiality principle may not be entirely convincing. (42) The principle does fail, however, for other reasons.

Engelhardt contends that the use of the potentiality principle involves a semantic confusion between future and present predicates, which would then imply that ontologically a thing now has the qualities that it will have in the future. As a result, Engelhardt says that "one loses the ability to distinguish between the value of the future and the value of the present." (43) Some examples show the absurdity of this interpretation of the potentiality principle. 

An associate professor is a potential full professor and will be promoted only after completing significant professional work. Using the potentiality principle, all associate professors could argue that they are already entitled to the privileges and prestige of a full professor. Similarly, resident aliens could argue that they need not go through with the naturalization process because potential U.S. citizens have the same rights as actual citizens.

Those who use the potentiality principle need not accept this obviously absurd version of the principle. They could simply argue that the fetus as a potential person, although it cannot claim the rights of a person , it still has the right to develop its potential as a person. After all, using the examples above, it would be wrong to deny the junior professor or the alien the right to pursue their respective advancement in society. Even with this more favorable interpretation of the potentiality principle, there is something basically wrong with these examples used as analogues with the developing fetus. 

Professional promotion and naturalization are not natural developments which happen as a matter of course; rather, they are societal achievements which require initiative and conscious choice. The fetus does not choose to be conceived and does not choose to become a person.

The foregoing observation does not invalidate the potentiality principle. One might hold that a potential which is not developed by conscious choice has no moral significance. But this is clearly mistaken. A ten-year-old child, who has the natural potential to become twenty years old, certainly has a legitimate moral claim to the right to become twenty. It would surely be absurd to maintain that one has to choose to be twenty in order to have the moral right to. Therefore the fetus' potential personhood is what William Hamrick calls a "real" potential as opposed to the "theoretical" potential of becoming a full professor or U.S. citizen.

There was, for example, nothing inevitable about my becoming a philosophy professor, but it was inevitable under normal circumstances that my natural potential to become a person was fulfilled. At my conception the genetic material which guided my brain to eventually produce neocortical impulses was already there. William Hamrick phrases it aptly: "The zygote is already potentially what it will actually be as a mature infant. Its potentiality is real, not merely theoretical because, although its morphology and capacity for experience are sketched only in outline, it is nonetheless a real outline. This is not, as it may appear, a mere play on words. Rather, it is to enforce the conclusion that, although there is in the zygote only a blueprint of the finished structure, the blueprint has the singular peculiarity of being built into the structure." (44)

The genetic procedures of cloning offer a better argument against the potentiality principle. With the technology of cloning, every cell in a person's body is a potential person. The complete genetic material in each cell simply has to be transplanted in a viable ovum and then placed in a womb. 

The cloning hypothesis is a good example to show the confusion of genetic and personal identity which is found in many conservative arguments against abortion. If we took the genetic material of 1000 cells from one person's body and transplanted it in 1000 ova in 1000 wombs, how many potential persons would we have? Only one person according to the genetic-based arguments of many conservatives. But this potential "person" would become 1000 different persons according to current law and the definition of personhood outlined above.

A critic might reply that ordinary body cells do not naturally clone themselves. Only when human germ cells come together as a fertilized egg is there a natural development towards personhood. Body cells are therefore not potential persons unless cloning is artificially introduced. The zygote is the only natural potential person.

There is, however, a flaw in this reasoning. The conservative, after winning recognition for the moral significance of the conceptus' potential personhood, has now forgotten that some theoretical potentials also have moral relevance. Short of extenuating circumstances, it would not have been right for the administration of the University of Idaho to have denied my promotion to full professor, especially after five productive years in rank. But as we have argued above, there was no natural potential at my conception which would have resulted in this particular achievement in my life.

The theoretical potential of sperms and eggs to come together to become zygotes or the theoretical potential of cloning body cells definitely establishes these entities as potential persons. Experimentally induced parthenogenesis has been successful with animals, and unlike cloning, it is more technically feasible in human females. As this process requires a fairly simple biochemical stimulus, there is a possibility that even some human females have given birth without need of the male gamete. (45) If the potentiality principle is to be applied consistently, the life of ova and sperm should be protected as carefully as the conceptus. This of course constitutes a reductio ad absurdum argument against the potentiality principle.

New addition:  While not absurd, it is highly unlikely that pro-lifers will accept that the higher animals I name as persons, but their conceptuses are just as much potential persons as human conceptuses.

For the endnotes to this section please go to www.class.uidaho.edu/ngier/abortion.htm.