Thursday, March 8, 2012

The Journal of Medical Ethics and infanticide

UPDATE to the post here. The original is down further. The actual article has been found at the JME. Doug Payton helpfully supplies it as well.

Now having the opportunity to read the entire article, my first impressions are reinforced.

1. Fundamentally, the paper fails on its own terms. It has not made its case that post delivery infants fail to be persons in what they take to be 'the morally relevant sense.'

Closely related:

2. The paper ambiguously uses the phrases 'self-awareness' and 'aims' in such a way as to argue the newborns do not have these capacities, while 'non-human persons' have them. Yet, evidence suggests that newborns do have them in the sense the paper makes predominant use of when it argues analogously concerning the personhood of non-human animals.

3. The paper argues, by implication, sometimes rather more explicitly, that killings of mentally diminished, retarded or incapacitated individuals is morally permissible, for the reasons they discuss (economic or other difficulties shouldered by those that would care for these individuals, be it family or state).

The Archimedean point of the paper occurs here (I've bolded key portions, which will be commented upon):

The moral status of an infant is equivalent to that of a fetus in the sense that both lack those properties that justify the attribution of a right to life to an individual.

Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’. We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her. This means that many non-human animals and mentally retarded human individuals are persons, but that all the individuals who are not in the condition of attributing any value to their own existence are not persons. Merely being human is not in itself a reason for ascribing someone a right to life. Indeed, many humans are not considered subjects of a right to life: spare embryos where research on embryo stem cells is permitted, fetuses where abortion is permitted, criminals where capital punishment is legal.

Our point here is that, although it is hard to exactly determine when a subject starts or ceases to be a ‘person’, a necessary condition for a subject to have a right to X is that she is harmed by a decision to deprive her of X. There are many ways in which an individual can be harmed, and not all of them require that she values or is even aware of what she is deprived of. A person might be ‘harmed’ when someone steals from her the winning lottery ticket even if she will never find out that her ticket was the winning one. Or a person might be ‘harmed’ if something were done to her at the stage of fetus which affects for the worse her quality of life as a person (eg, her mother took drugs during pregnancy), even if she is not aware of it. However, in such cases we are talking about a person who is at least in the condition to value the different situation she would have found herself in if she had not been harmed. And such a condition depends on the level of her mental development, which in turn determines whether or not she is a ‘person’.

Those who are only capable of experiencing pain and pleasure (like perhaps fetuses and certainly newborns) have a right not to be inflicted pain. If, in addition to experiencing pain and pleasure, an individual is capable of making any aims (like actual human and non-human persons), she is harmed if she is prevented from accomplishing her aims by being killed. Now, hardly can a newborn be said to have aims, as the future we imagine for it is merely a projection of our minds on its potential lives. It might start having expectations and develop a minimum level of self-awareness at a very early stage, but not in the first days or few weeks after birth. On the other hand, not only aims but also well-developed plans are concepts that certainly apply to those people (parents, siblings, society) who could be negatively or positively affected by the birth of that child. Therefore, the rights and interests of the actual people involved should represent the prevailing consideration in a decision about abortion and after-birth abortion.

Regarding the first bolded passage: The authors allow that some retarded individuals and non-human animals are persons. They meet a threshold psychological condition indicated by the phrase "capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss"

Notice the phrase "at least" and the word "basic" here. What do they mean? Apparently, this: The threshold condition does not require full blown self-consciousness. That is the import of the second bolded passage:

"a necessary condition for a subject to have a right to X is that she is harmed by a decision to deprive her of X. There are many ways in which an individual can be harmed, and not all of them require that she values or is even aware of what she is deprived of."

This condition is also stated as a counter factual in this portion of that bolded section:

"in such cases we are talking about a person who is at least in the condition to value the different situation she would have found herself in if she had not been harmed."

Notice here the phrase "at least." Once again, this is used to indicate a threshold psychological capacity.

These carefully crafted statements clearly are intended to cover animals, but not cover newborns. Why believe animals meet the condition? Our evidence is analogical. We see in them behavior similar to ourselves. We also see analogs in their neural structures. They show behaviors that indicate distress at being harmed or killed, even if they are not, at the same time, mentally capable of full self-awareness. There is much evidence that they lack this latter capacity, yet copious evidence that they in some 'basic' and 'at least' sense, value their lives. This is enough for the authors to allow them to be included in the moral sphere, as persons with rights.

Yet, when it comes to newborns the authors have this to say concerning our attribution of personhood to them:

"Now, hardly can a newborn be said to have aims, as the future we imagine for it is merely a projection of our minds on its potential lives (sic). It might start having expectations and develop a minimum level of self-awareness at a very early stage, but not in the first days or few weeks after birth."

Notice here, the cashing in on the ambiguities. We see the phrases 'self awareness' and "aims" now. Infants are not 'self-aware' like we are, even if 'minimally'. They don't have the capacity to formulate 'aims' like we do. The reason for saying they are persons despite these facts? We consider newborns to be persons because we indulge in a sort of anthropomorphism, we project upon them something like our full blown self-consciousness and teleological capacities. (Ironically, the authors do not see we do essentially the same thing with non-human animals. Nor, do they see the trouble for their own view in the fact that we can be more circumspect in analogizing, as they believe themselves to be.)

But is that all there is to it? Are we merely naive anthropormorphists when it comes to newborns? I'll say it again: Even given their own terms, that is, their own definition of minimal, 'basic' or 'at least' personhood, the authors fail to make their case with regard to newborns.

On their own terms, they have good reason to count newborns as persons. Do we not see behavior that indicates that newborns are distressed at being hurt or in pain, hungry, cold, dehydrated & etc.? To use the authors' own words, do we not, when we see such behavior, see that infants have the 'basic' or 'at least' capacity of 'valuing the situation they would have found themselves in' had things gone differently? Isn't the distressed behavior a good indicator of that capacity? Are not the behaviors of infants similar to those of animals, minus the motility? Additionally, we have further analogical evidence, from comparative neuro-physiology, that they have capacities the authors should deem person-making. The brain of a normal newborn is more complex than that of any other species. Shouldn't this be taken as good evidence of psychological capacities that at least equal, if not outstrip, those of most 'non-human persons'? What would experimental psychology have to say about newborns? (I don't know the answer to that, but surely, the answers would be relevant to this issue.)

Additionally, it simply doesn't matter, in making the moral case for animals or treating other such 'basic,' minimal or 'at least' persons with respect for rights they do indeed possess, I say, it simply doesn't matter for this purpose and, according to the authors themselves, that these persons are not aware of how it is they can be harmed. Look again at this passage:

"There are many ways in which an individual can be harmed, and not all of them require that she values or is even aware of what she is deprived of."

This passage is curious. It is sufficient for purposes of being counted as a person in the moral sense, that entities have the minimal psychological capacity to be harmed and they need only be in a state analogous to 'valuing the situation they would have found themselves in.' Notice, the state need not involve actual valuing or awareness. This is indeed a very minimal threshold, if I'm understanding it correctly, and I think it does include newborns as persons, possessed of rights.

That's it for the is the..

Original post:

Recently, there appeared a journal article arguing for the moral permissibility of killing normal and healthy babies shortly after delivery. To state the obvious, the argument is controversial.

Doug Payton has series of posts in the works on that article. See the first of those HERE I tried to reference the article, and LINK it here, but it has apparently been pulled by the Journal of Medical Ethics. So, in this post, I comment while relying on the portions of the arguments Peyton excerpts and comments upon.

The argument boils down to this three premised argument, (rendered in standard form Modus Ponens):

1. If it is permissible to abort a healthy fetus at any stage before birth for reasons OTHER than saving the life of the mother, then it is permissible to kill a healthy baby post delivery for the same reasons.

2. It is permissible to abort a healthy fetus at any stage before birth for reasons OTHER than saving the life of the mother.

3. Therefore: It is permissible to kill a healthy baby post delivery for the same reasons.

This, being a valid argument of the form

P > Q

IF the two premises are true, then the conclusion must be true.

The authors contend that the premises are true. Those that disagree take issue with the premises. This camp divides into these groups:

Concerning the antecedent of #1 (which also is obviously #2):

1. Those that believe it is impermissible to abort healthy fetuses for these NLT reasons regardless of stage of development.

2. Those that believe it is impermissible to abort for these NLT reasons only at later stages, not earlier.

..and there can only be one dissenting group concerning the consequent of #1 (that is, the conclusion, #3):

3. Those that deny it.

The paper argues that ‘social and economic’ reasons are morally acceptable or permissible reasons to kill post-delivery healthy babies. These reasons can involve the socio-economic situation of the mother, or the SE situation of groups of larger scope.

Now, why do the authors think that their major premise is correct? Essentially, it boils down to the belief that neither a pre, nor a post delivery healthy baby is a person in, to use their phrase “the morally relevant sense.” Here is the ‘relevant’ passage, as quoted in Mr. Peyton’s blog post. (The original article is no longer available apparently):

Failing to bring a new person into existence cannot be compared with the wrong caused by procuring the death of an existing person. The reason is that, unlike the case of death of an existing person, failing to bring a new person into existence does not prevent anyone from accomplishing any of her future aims. However, this consideration entails a much stronger idea than the one according to which severely handicapped children should be euthanised. If the death of a newborn is not wrongful to her on the grounds that she cannot have formed any aim that she is prevented from accomplishing, then it should also be permissible to practise an after-birth abortion on a healthy newborn too, given that she has not formed any aim yet.

The needlessly prolix language and use of passive voice just obscures the point, so I’ll render it more directly:

A necessary condition of personhood is the ability of an entity to pursue goals or aims. To prevent such an entity from pursuing these goals or aims by killing it, is morally wrong. Necessarily: Killing an entity that is not yet a person does not prevent that not-yet- person from fulfilling any goals/aims he/she has. This is because a not-yet person is not a person,and therefore has no goals or aims. (Duh) Healthy fetuses and newborns are not-yet-persons. So, it is not morally wrong to kill them.

This is following the quoted material as near as possible, but even invoking the principle of charity, it is questionable on a few fronts:

1. The slippery slope front: It would seem to follow from this line of reasoning that parents or other entities impacted by the care of healthy newly arrived non-persons, may at any time kill a post delivery infant, just so long as that infant is incapable of ‘forming aims.’ (The authors apparently beg off discussing this logical implication of their view, but it follows.)

2. The ‘forming aims’ criterion is hopelessly vague, and, as stated does not exclude from moral consideration what they authors hope to exclude, for, if behavior is evidence of ‘aims’, then infants do indeed have the capacity to form aims. They cry with the aim of being fed or held. They react when hurt in a way that clearly indicates an ‘aim’ of getting away from or stopping the pain.

But perhaps the authors mean to indicate something more than this rudimentary ability, which, after all infants and fetuses share with other animals. The authors might object, claiming they intended to point out unique psychological features of normally developed human beings. After all they do use the phrase “future aims.” Well. OK. What about this phrase “future aims.” The passage does indeed make use of it. So, what do they mean to communicate to the reader by way of that phrase? Let’s see.

Focus on this snippet:

“..failing to bring a new person into existence does not prevent anyone from accomplishing any of her future aims.”

The formulation is, once again, sloppy. The phrase in ambiguous:

Meaning A: Suppose we are talking about one of my “future aims.” Then we are talking about some aim I will formulate IN THE FUTURE. The authors do not intend to claim (at least I don’t think so, we cannot read the original in its entirety now that the JME has taken it down) that it would be wrong to kill an entity that will be capable of formulating aims at some point in the future. If so, they would be arguing at cross purposes with themselves, to put it mildly.

Meaning B: No. What they must mean by this phrase, is that persons are at any given moment capable of forming future directed aims, that is aims FOR their fairly distant future selves, in the sort of full blown sense that young children, older kids, adolescents, (and everyone on up in age except for the senile or demented can do). This must be their intent, even though the argument as stated has much more minimalistic sounding language about’ aims’ mixed confusedly with hints of this full blown sense of the term.

Well, what follows from the two meanings, as regards the argument?

Clearly, if meaning A was in mind, they have not made a case that the killings they have in mind are indeed morally permissible.

If they have B in mind, slippery-slope considerations similar to #1 above come to the fore. It would not be the first time that philosophers have either directly, or by implication, argued for the moral permissibility of euthanasia of mentally incapacitated or disabled human beings.

At any rate, one might argue that this part of the discussion is beside the point, for, often it is argued that it is wrong to inflict pain or death upon animals simply because it is (obviously) infliction of pain and suffering. It is often argued, by those that assert the moral impermissibility of eating animal products, that killing those animals for what are essentially non essential reasons (taste or economy) is wrong, provided that there are dietary alternatives. One can make an analogous case in this present context, precisely because fetuses and babies can experience pain and distress. It simply does not matter, on this sort of argument, that they do not yet have the capacity for full blown goal formation. They do have the vulnerability to pain. They can experience distress. And, to bring it back to the language of the argument presented, they do have aims in the minimal sense that the above quoted passage at least intimates. They are not stones, nor are they mere pieces of furniture. Clearly this sort of case is stronger for later stages of development, than it is for very early stages, hence the different camps that are in opposition to arguments like that presented in the article.

Herodotus’ “Histories” of the Persian Wars (very liberally ‘translaparaphrased’): Book I sections 62 -66

Wherein, we finish (for now) the story of Pisistratus, and his on again off again rule of Athens, and then move on to a story of the founding of the (then) current Spartan order, both of these as told to Croesus as he made inquiries as to potential Greek allies, in preperation for his ill fated campaign against Cyrus.


The Battle of the Fetters


You just cannot trust the Pythia


The first place this force took, in Attica proper, was Marathon. The army grew by addition of allies from within the city. Here, they set camp. They were joined by others that preferred the tyranny over democracy, these came at a slow but steady pace from various villages. During the time that Pisistratus was gathering men and material, and even after he had taken Marathon, the Athenians did not pay him attention. However, when he began his march toward the city, they mustered in full force against the returning exiles. The forces met as Pisistratus made his way from Marathon. At the temple of Athena Pallenis both sides drew up, halted, and faced one another. There was no movement for some time. During this delay, providentially it would seem, Amphilytus, a seer from Acarnia, approached Pisistratus with a prophecy, couched in verse:

The net is cast far and the mesh spreads itself wide;
Under moonlit sky come the tunnies, unwarily through the sea.


Pisistratus, grasping the significance of these lines, publically declared acceptance of the oracle and gave order to advance. He caught the Athenians unawares, for they were, at that time, taking their meals, some even gaming or napping after their meals. The attack met with no resistance. The Athenians retreated, and by clever stratagem Pisistratus prevented any counterthrust or rally, and ensured they remained scattered and under no unity of command. He then ordered his sons to ride in advance, speaking to fugitives whenever they overtook them, urging them with his very words, to take heart and go safely home.


The Athenians all followed these directions and for the third, and last time, Pisistratus took control of the city.

This time he gave firmer foundation to his rule, raising a body guard and substantial revenue from sources both inside and outside of Attica. Some funds came from property around the river Strymon. He took hostages for insurance of his safety, sending them to Naxos, which he had captured and turned over to one Lygdamis). These hostages were sons of Athenians who had remained in the city, and had not immediately fled. Finally, he ritually purified the island of Delos. This was in obedience to an oracular command. He exhumed all the dead who had been buried within sight of the temple and re-interred them elsewhere on the island.


Such was the way Pisistratus won undisputed power over Athens. A number of citizens had been killed in the fighting, and others, most notably, the Alcmaeonidae, exiled themselves.


This was the state of things in the city at the time that Croesus made his inquiries about Greek powers, as recommended him by his own oracular sources. Having acquired this information, he then moved on to gathering information about the Spartans. He found out that after a period of decline and depression, the Lacedaemonians had prevailed in a conflict with Tegea. Tegea had, during the joint reign of Leon and Agasides, been the only town able to hold out against Spartan arms. At an earlier time, the Spartans had actually been the worst governed people of Greece. They could neither manage their internal, nor external affairs. Indeed, they would have no intercourse with outsiders. How the change to an effective form of government came about, I will not relate.

Lycurgus, a prominent and well regarded Spartan visited the Pythia. No sooner had he entered the shrine than he was greeted with the following words.

Into my rich temple you come Lycurgus
Dear to Zeus and all those dwelling on Olympus
Should I declare you human or divine?
Yet, I am inclined to think you a god.

There is also a story that the Pythia revealed to him the form of government which he should institute, the very one you see today. The Lacedaemonians themselves, however say he brought it from Crete. This is said to have occurred after he had taken on the role of guardian and regent for his nephew Leobatas, who was by lineage King of Sparta. It is undeniable fact that as soon as he received this office, he fundamentally altered the laws, and went to some length to ensure they would not be broken. Later he reorganized the army by introducing the system of messes, and forming the by now familiar tactical divisions of squadrons and companies. He also instituted the civil offices of Ephor and Elder.


By these changes, the Spartan government became stable and healthy. When Lycurgus died, a temple was built in his honor. He is still considered with the greatest of reverence. Due to excellent soil, and a burgeoning populace Sparta soon grew up and flourished like a sturdy tree. They were no longer content to simply stand pat on the defensive. They became convinced they were better men that the Arcadians, and wanting to conquer Arcadia, first consulted Delphi. The answer from the oracle ran as follows:

Arcadia? Great is the thing you ask. I will not give it you,
In that land are a great many men, acorn eaters
And they will repulse you. However, because I do not begrudge
I will grant you Tegea, a dancing floor for stamping feet
And her fair plain, open to be measured by the line.

The Lacedaemonians, unaware of the ambiguity of these lines, decided to leave the rest of Arcadia unmolested while they marched against Tegea. So confident they were of victory, that they took with them the very chains they intended to use as they reduced the men of that town to slavery. However, they lost the battle, and those taken prisoner were forced to wear these very chains upon their legs and ‘measure by the line’ the plain of Tegea as laborers. In my lifetime these same fetters were still resident in Tegea, suspended around the temple of Athena Alea.